Bridget Hoagboon VS Brandie Cannon, GEICO General Insurance Company and AAA Insurance
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0909 BRIDGET HOAGBOON iRY1161 0104 BRANDIE CANNON GE GENERAL INSURANCE COMPANY ICO AND AAA INSURANCE Judgment Rendered c Appealed from the f Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket No 2007 15897 10 Honorable William J Burris Judge James P DeSonier Counsel for Mandeville LA PlaintiffAppellant Bridget Hoagboon Bradley J Luminais Jr Counsel for Metairie LA Defendant Appellee Automobile Club Inter Insurance Exchange M3KWWW3 BEFORE PARRO GUIDRY AND HUGHES JJ GUIDRY J Appellant whose vehicle was rearended by a following motorist appeals the judgment of the trial court dismissing her claims against her insurer as being outside the scope of her economic only uninsured motorist EOUM underinsured coverage For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY As a result of an accident on the Causeway Bridge in Jefferson Parish that occurred on October 30 2006 Bridget Hoagboon filed a petition against Brandie Cannon GEICO General Insurance Company as the liability insurer of Ms Cannon and Automobile Club Inter Insurance Exchange Automobile Club as her EOUM insurer which Ms Hoagboon incorrectly identified in her petition as AAA Insurance Ms Hoagboon eventually settled her claims against Ms Cannon and Ms Cannon insurer and the case proceeded to trial against s Automobile Club solely on Ms Hoagboon claims for future loss of wages and s future medical expenses Ms Hoagboon also sought an assessment of penalties and attorney fees against Automobile Club for allegedly wrongfully denying her claim for such damages In lieu of a formal trial the parties submitted the matter on written memoranda with attached documentary evidence Following consideration of the parties submissions the trial court rendered judgment in favor of Automobile Club finding that based on the express language of Automobile Club EOUM s policy Ms Hoagboon was not entitled to payment for her claims for future loss of wages and future medical expenses Consequently the trial court denied Ms s Hoagboon claims for future loss of wages and future medical expenses without prejudice and denied her related request for penalties and attorney fees with prejudice in a judgment signed February 4 2010 taxing three fourths of the court costs to Automobile Club and onefourth to Ms Hoagboon 2 It is from this judgment that Ms Hoagboon appeals asserting that the trial court erred in 1 failing to award future medical expenses 2 failing to award future loss of wages 3 failing to award penalties and attorney fees and 4 taxing her with onefourth of the court costs DISCUSSION The primary issue raised in this appeal is whether the trial court legally erred in its interpretation and application of Automobile Club EOUM policy s See Butler v Allen 00 1726 p 3 La App 1 st Cir 9808 So 2d 746 748 writ 01 28 denied 01 2924 La 2808 So 2d 331 02 1 According to the Automobile Club EOUMM policy issued to Ms Hoagboon coverage is only provided for economiconly damages which are defined in the policy as payments to reimburse an injured person for documented dollar loss due to an accident The policy goes on to specify economiconly damages as medical bills funeral expenses wages lost from missing work including use of sick leave bills for necessary replacement services and reimbursement to an employer to reinstate sick leave Based on this policy language the trial court found that because Ms Hoagboon claims for future loss of wages and future s medical expenses were not incurred and documented she was not entitled to payment for those claims Generally an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code Hebert v Webre 08 0060 p 4 La 5 982 So 2d 770 773 08 21 Thus if the wording of the policy is clear and explicit and leads to no absurd consequences the agreement should be enforced as written See Hebert 08 0060 at 4 982 So 2d at 773 see also La C art 2046 Moreover insurers have the right to limit coverage in any manner desired so long as the limitations are clearly and unambiguously set forth in the contract and are not in conflict with statutory 91 provisions or public policy Anderson v State Farm Fire Casualty Insurance Company 100036 P 6 La App 1 st Cir 7 42 So 3d 1140 1144 10 16 Nevertheless an insurance policy issued in Louisiana is considered to contain all the standard provisions required by statute Marcus v Hanover Insurance Co Inc 982040 p 4 La 6 740 So 2d 603 606 see La R 99 4 S A 863 22 According to La R 22 S 863 B No insurance contract shall contain any provision inconsistent with or contradictory to any such standard provision used or required to be used but the commissioner of insurance may approve any provision which is in his opinion more favorable to the insured than the standard provision or optional standard provision otherwise required No endorsement rider or other documents attached to such contract shall vary extend or in any respect conflict with any such standard provision so as to make the resulting effective provision less favorable to the insured than such standard provision Any policy provision that narrows or restricts statutorily mandated coverage will not be enforced because an insurer is not at liberty to limit its liability and impose conditions upon its obligations that conflict with statutory law or public policy Marcus 98 2040 at 4 740 So 2d at 606 The statutory requirements for EOUM coverage are provided in La R S i a 1 1295 22 which states in pertinent part Insurers may also make available at a reduced premium the coverage provided under this Section i e uninsured motorist coverage with an exclusion for all noneconomic loss This coverage shall be known as economic only uninsured motorist coverage Noneconomic loss means any loss other than economic loss and includes but is not limited to pain suffering inconvenience mental anguish and other noneconomic damages otherwise recoverable under the laws of this state In Butler 00 1726 at 6 808 So 2d at 750 this court considered this statutory language and explained that the EOUM coverage authorized by statute Renumbered from La R 22 by 2008 La Acts No 415 S 680 2009 M 1 effective January 1 allows the insured to recover only special damages 2 Thus any provision providing for a restriction of this coverage is in derogation of the statute Cf Fisher v Morrison 519 So 2d 805 810 La App 1st Cir 1987 Future loss of wages and future medical expenses are special damages claims See Angeron v Martin 93 2381 p 2 La App 1st Cir 12 649 So 40 42 Cottle v 94 22 2d Conagra Poultr Company 06 1160 p 3 La App 3d Cir 3 954 So 2d 07 14 255 257 Thus considering the language statutory Automobile s Club EOUM provision restricts the coverage provided by statute by imposing the condition that any economic damages claimed must first be incurred and documented to be covered under the policy As such this more restrictive language contained in the EOUM policy is contrary to the statute and thus unenforceable C Fisher 519 So 2 at 810 Mednickv State Farm Mutual Automobile Insurance Company 09 A 183 pp 6 7 La App 5th Cir 1 31 So 3d 1133 11 However for the 10 26 37 following reasons we conclude that the trial court did not err in denying Ms sclaims for future loss of wages and future medical expenses based on Hoagboon her failure to meet her burden of proving her entitlement to such damages Awards for both future loss of income and fixture medical expenses are inherently speculative and not susceptible of being calculated with mathematical 2 At the time of the Butler decision the quoted language defining EOUM coverage was contained in La R 22 which was later redesignated as La R 22 by 2003 La S 1406 D S 680 Acts No 456 3 before being renumbered as La R 22 in 2009 The court in Butler S 1295 also explained policy reasons for enacting EOUM coverage The declared legislative intent of 1997 Acts No 1476 known as the Omnibus Premium Reduction Act of 1997 was to achieve a significant reduction in the premium rates for motor vehicle insurance The legislature intended a direct cost savings to citizens of Louisiana The obvious reason for the lower cost of EO UM coverage is that fewer damages are covered by that type of insurance than the non economic losses e pain and suffering recoverable g under the standard UM coverage for bodily injury Thus the EO UM coverage provision is meant to provide insurance coverage at a reduced rate to protect persons from suffering economic hardship in the event the tortfeasor is uninsured or underinsured Butler 00 1726 at 5 808 So 2d at 749 5 certainty See Menard v Lafayette Insurance Company 09 1869 p 13 La 0 1 16 3 31 So 3d 996 1006 Jenkins v State ex rel Department of Transportation and Development 06 1804 p 36 La App 1st Cir 8 993 08 19 So 2d 749 772 writ denied 08 2471 La 12 996 08 19 So 2d 1133 Nevertheless awards for future loss of wages cannot be based purely on speculation conjecture and probabilities nor simply on the difference between the plaintiffs earnings before and after a disabling injury See Jenkins 06 1804 at 41 993 So 2d at 775 Levy v Bayou Indus Maintenance Services Inc 03 0037 p 4 La App 1st Cir 9 855 So 2d 968 973 writs denied 03 3161 and 03 03 26 3200 La 2 865 So 2d 724 and 727 Rather the award is predicated upon 04 6 the difference between a plaintiffs earning capacity before and after a disabling injury usually as established by projections from a financial expert that have a factual basis in the record Levy 03 0037 at 5 855 So 2d at 973 The record before us does not contain any such evidence to support Ms Hoagboon sclaim of future loss of income Likewise in order to recover future medical expenses the appellate record must establish that future medical expenses will be necessary and inevitable An award of future medical expenses will not be supported in the absence of medical testimony establishing that they are indicated and setting out their probable cost Jenkins 06 1804 at 43 993 So 2d at 776 There is no evidence in the record before us that it is more probable than not that it will be necessary and inevitable for Ms Hoagboon to incur future medical expenses and in the absence of such evidence Ms Hoagboon claim for future medical expenses must fail s 3 Ms Hoagboon attempted to submit additional evidence to this court by attaching certain documents to her appellate brief An appellate court must render its judgment upon the record on appeal La C art 2164 The record on appeal is that which is sent by the trial court to the P appellate court and includes the pleadings court minutes transcripts jury instructions if applicable judgments and other rulings unless otherwise designated See La C arts 2127 P 28 21 and Uniform Rules Courts of Appeal Rules 21 to 21 An appellate court cannot 5 9 review evidence that is not in the record on appeal and cannot receive new evidence Lee v Twin Brothers Marine Corporation 03 2034 p 4 La App 1st Cir 9 897 So 2d 35 3738 04 17 D In order to establish a cause of action for penalties and attorney fees and or costs under La R 22 a claimant must show that 1 an insurer has S 1892 received satisfactory proof of loss 2 the insurer failed to tender payment within thirty days of receipt thereof and 3 the insurer failure to pay is arbitrary s capricious or without probable cause See La R 22 Guillory v Lee S 1892 1 B 090075 p 30 La 6 16 So 3d 1104 1 09 26 126 Statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in goodfaith reliance on that defense especially when there is a reasonable and legitimate question as to the extent and causation of a claim and bad faith should not be inferred from an insurer failure to pay within the statutory time limits s when such reasonable doubt exists Guillory 09 0075 at 32 16 So 3d at 1127 Finally the question of arbitrary and capricious behavior is essentially a factual issue and the trial court finding should not be disturbed on appeal absent s manifest error Guillory 09 0075 at 32 16 So 3d at 1127 After a thorough review of the record before us because we find Ms Hoagboon has not proven an entitlement to future loss of wages or future medical expenses we find no error in the trial court determination that the assessment of penalties and attorney fees s pursuant to La R 22 was not warranted S 1892 1 B Furthermore although a party cast in judgment should generally be taxed with costs the trial court may assess costs of a suit in any equitable manner La P C art 1920 Cortes v Lynch 02 1498 p 13 La App 1 st Cir 5 846 03 9 So 2d 945 953 It has been held that absent a showing that the prevailing party caused costs to be incurred pointlessly or engaged in other conduct justifying assessment of costs against it a trial court abuses its discretion in assessing costs equally between parties as all costs should be assessed against the losing party 4 Renumbered from La R 22 658 by 2008 La Acts No 415 S 11 f V 1 effective January 1 See Polk Chevrolet Inc v Webb 572 So 2d 1112 1116 La App 1 st Cir 1990 writ denied 575 So 2d 394 La 1991 Ms Hoagboon clearly did not prevail in the proceedings below and we can find no evidence in the record before us indicating that Automobile Club needlessly incurred costs or otherwise engaged in conduct justifying assessment of costs While we acknowledge Ms Hoagboon allegation that the trial court s abused its discretion in taxing her with onefourth of the costs of the trial court proceedings it appears that the trial court should have assessed Ms Hoagboon with all the costs of the proceedings below However because Automobile Club did not appeal or file an answer to the appeal we are precluded from modifying the assessment of costs in its favor since to do so would result in a modification in favor of the non appealing party contrary to Louisiana law Matthews v Consolidated Companies Inc 95 1925 p 1 La 12 664 So 2d 1191 see 95 8 La C arts 2082 and 2133 P CONCLUSION Although the trial court committed legal error in simply applying Automobile Club EOUM policy without considering whether its provisions s comported with applicable statutory law we nevertheless conclude that coverage of Ms Hoagboon claims was not warranted based on her failure to present s evidence sufficient to meet her burden of proving that she will more likely than not incur future loss of wages and future medical expenses Hence we affirm the judgment of the trial court in its entirety and assess all costs of this appeal to the appellant Bridget Hoagboon 1WW119ulofra F N
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