Thomas "Gene" Alexander VS Herman Washington, Economical Janitorial Supplies, Inc. & Zurich American Insurance Company (2012CA1296 Rehearing Application)
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ivC3T C:. ""=:: lill i" i..;. L_ I'. i. D f' Si %` COURT OF APPEAL, FIRST CIRCUIT STATE OF LOUISIANA RE: [ ocket Number 2012- CA- 1296 Thom is " Gene" Alexander Versus - - 19th Judicial District Court Herman Washington, Economical Janitorial Supplies, Inc. & Zurich American Insurance Company Case #: 578945 East Baton Rouge Parish On ApF, lication f/ r R"` o ehearing filed on 10/ Ol/ 2013 by Thomas" Gene" Alexander Rehearing L.?' . fC= /= h r? iR-s a/ i.v QU / { f/ c c f{' JCL yRa h H. el E. G' i rro uke" Welch C f-, / L Z %' William F. Kline J Filed ' DEC 1 9 20t3 a a Christine L Crow, Clerk NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 4, i 2012 CA 1296 J I THOMAS " GENE" ALEXANDER VERSUS HERMAN WASHINGTON, ECONOMICAL 7ANITORIAL SUPPLIES, INC. AND ZURICH AMERICAN INSURANCE COMPANY On Appeal from the 19th 7udicial District Court Parish of East Baton Rouge, Louisiana Docket No. 578,945, Section 22 Honorable Timothy E. Kelley, ] udge Presiding On Rehearing ay A. Parker Attorneys for Steve M. Marks Plaintiff-Appellee Marks & Lear, PLC Thomas Gene" Alexander Baton Rouge, LA Robert E. Kerrigan,) Attorneys for r. Isaac H. Ryan Defendants- Appellants Deutsch, Kerrigan & Stiles, L. L. P. Herman Washington, Economical New Orleans, LA anitorial Supplies, Inc., and Zurich American Insurance Co. of Illinois BEFORE: PARRO, WELCH, AND KLINE, 1 ) J. I rv J S ` d v v:: ES 9. v<!'; si, 15 ยข s pF'E.q Judgmenton 1 ] udge William appointment of F. Kline, ] the Louisia a s+; Rehearing Ul/ rendered DEC 1 9 2013 r., retired, is serving as judge ad hoc by special Supreme Court. PARRO, ). The plaintiff, Thomas " Gene" Alexander, has applied for a rehearing in this matter, requesting this court to correct a clerical error in the amount of damages awarded and to reconsider and raise the amount of damages awarded for future medical expenses. For the following reasons, we grant a rehearing and amend our earlier judgment in this matter. Alexander filed suit against the defendants on June 2, 2009, seeking damages for injuries he had suffered as a result of an automobile accident. After a five- day bench trial, the court rendered judgment in favor of Alexander and against the defendants in solido, ordering them to pay him the following amounts, plus legal interest from the date of judicial demand and all costs: Past Medicals 322, 672. 04 Future Medicals 492, 523. 34 Past Wages 178, 837. 32 Future Wages 674, 365. 00 General Damages 1, 000, 000. 00 Total 2, 368, 124. 70 The rehearing application points out an error of calculation in the computation of damages. When the amounts of the above awards are added up, the total is 2, 668, 397. 70. However, a more significant legal error makes a correction to that calculation irrelevant, for the following reasons. The plaintiffs application for rehearing points out that the trial court and this court implicitly relied on a potential collateral source to pay some of the plaintiff' s future medical expenses for prescription medications. As noted in our original opinion, the trial court only awarded one- third of the requested future medical costs for prescription medication, reasoning that there was evidence that Alexander could obtain future employment that would include medical benefits.Z Our examination of the record indicated that two vocational rehabilitation counselors opined that Alexander could be employed on a full-time basis in the future, which led us to Z In addition, calling them " fringe benefits," the court did not award any amount for increased health insurance premiums that Alexander claimed he would incur due to his inability to obtain Future employment. The application for rehearing did not request an award for this item of amages. 2 accept the trial court's explanation for awarding less than the amount requested for future prescription medications. However, as noted by the plaintiff in his application for rehearing, this conclusion violates the " collateral Under the collateral source rule, source rule." a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of money received by the plaintiff from sources independent of the tortfeasor' s contribution. Bozeman v. State, 03- 1016 ( La. 7/ 2/ 04), 879 So. 2d 692, 698. The payments received from the independent source are not to be deducted from the award the aggrieved party would otherwise receive from the wrongdoer, and a tortFeasor's liability to an injured plaintiff should be the same, regardless of whether or not the plaintiff had the foresight to obtain insurance. Id. As a result of the collateral source rule, the tortfeasor is not able to benefit from the victim' s foresight in purchasing insurance and other benefits. Id. Where insurance is provided by the employer, then that fringe benefit is in the nature of deferred compensation. The deferred compensation would have been available to the plaintiff as cash per paycheck, but for the existence of the deferred compensation plan. Likewise, the benefits of the deferred compensation would have been available, but for the injury. Id. at 699, citing Bryant v. New Orleans Pub. Serv.. Inc., 406 So. 2d 767, 768- 69 ( La. App. 4th Cir. 1981), affd, 414 So. 2d 322 ( La. 1982). After consideration of this rule in relation to the award of future medical expenses, we conclude that the reduction of that award, due to the possibility that the plaintiff may obtain employment with health insurance benefits in the future, impermissibly ignored the collateral source rule. As stated in our original opinion, future medical expenses must be established with some degree of certainty, and a plaintiff must demonstrate that such expenditures will, more probably than not, be incurred as a result of the injury. Menard v. Lafayette Ins. Co., 09- 1869 ( La. 3/ 16/ 10), 31 So. 3d 996, 1006. An award of future medical expenses is justified if there is medical testimony that they are indicated and that sets out their probable cost. 3 Hanks v. Seale, 04- 1485 ( La. 6/ 17/ 05), 904 So. 2d 662, 672. The trial court should award all future medical expenses that the medical evidence establishes that the plaintiff, more probably than not, will be required to incur. Hymel v. HMO of Louisiana. Inc., 06- 0042 La. App, ist Cir. 11/ 15/ 06), 951 So. 2d 187, 206, writ denied, 06- 2938 ( La. 2/ 16/ 07), 949 So. 2d 425. Our review of the record revealed that two of Alexander' s treating physicians testified that he would need pain medications at approximately his current level for the rest of his life. At the time of trial, he was taking two strong opioid pain relievers twice a day, a muscle relaxer three times a day, a neuropathic pain reliever four times a day, a sedative two to three times a week, and approximately six pain patches each week. He had tried to reduce his dependence on these medications, but found that he could not reduce his pain medications without experiencing an immediate spike in his pain level. According to medical testimony in the record, in addition to continuing on his current regimen of pain medications for the rest of his life, Alexander would more probably than not also need regular follow- up visits with his treating physician, physical therapy, and epidural steroid injections. In his answer to the appeal, the plaintifF requested $ 979, 009. 34 for all future medical expenses, including future prescription medications. The deduction made by the trial court and affirmed by this court applied an offset of 486, 486 to that amount for employment- related medical insurance benefits that Alexander might eventually obtain, resulting in the award of $492, 523. 34.3 After considering the collateral source rule, we conclude that the judgment of the trial court and our original opinion were legally erroneous in implicitly applying future payments from an independent source to reduce the amount of the award to Alexander for his future medical expenses. Accordingly, the amount of the award for future medical expenses will be increased from 3 The court indicated this offset was calculated by reducing the total future prescription medical expenses by hvo-thirds, or $ 486, 486. The remaining one-third of the total future medical expenses, or $243, 243, was then added to the amount for the other future medical expenses of 249, 280. 34, to arrive at the sum of $ 492, 523. 34 for the amount of all future medical expenses. 4 492, 523. 34to $979, 009. 34.4 Using this increase in the award for future medical expenses, the amended damage awards are: Past Medicals 322, 672. 04 Future Medicals 979, 009. 34 Past Wages 178, 837. 32 Future Wages 674,365. 00 General Damages 1, 000. 000. 00 Total 3, 154, 883. 70 As a result of this correction of a legally erroneous damage award, it is not necessary to correct the clerical error that existed in the judgment of the district court, as well as in this court's original judgment. CONCLUSION For the foregoing reasons, the plaintiffs application for rehearing is granted, and the original judgment of this court, as well as the March 15, 2012 final judgment of the district court, are amended to show that judgment in the amount of $3, 154, 883. 70, plus legal interest and costs, is rendered in favor of Thomas " Gene" Alexander and against Herman Washington, Economical Janitorial Supplies, Inc., and Zurich American Insurance Company of Illinois, in solido. In all other respects, the March 15, 2012 final judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendants. APPLICATION APPELLATE RENDERED; FOR COURT FINAL REHEARING ] UDGMENT DISTRICT GRANTED; AMENDED COURT AND JUDGMENT ORIGINAL JUDGMENT AMENDED AND AFFIRMED AS AMENDE0. The record supports at least $ 729, 729 for future prescription medications, since Dr. Rice' s estimate of the present value of all future prescription medications was $ 730, 134. Moreover, the present value of all future medical expenses, was estimated by Dr. Rice as $ 983, 450. Accordingly, the record also supports at least the amount sought by the plaintiff for all future medical expenses in this case. 5 NUMBER 2012 CA 1296 TFOMAS " GENE" ALEXANDER FIRST CIRCUIT VERSUS COURT OF APPEAL HERMAN WASHINGTON, ECONOMICAL JA[ ITORIAL SUPPLIES, INC. AND ZURICH STATE OF LOUISIANA AT ERICAN INSLJItANCE COMPANY KI, INE, J., concurs and assigns reasons. I concur with the grant of rehearing required by the error in mathematical j' ca. culation and in the language of the trial court relative to the collateral source rul e. The damage awards are subject to adjustment. The manner and extent of that adjustment depends on the analysis and interpretation of the record regarding fuiure medical benefits, particularly prescription needs and fringe benefits ( i.e. he lth insurance.) It must be acknowledged that mare than one perception and conclusion exist for justice in these awards. Respectfully, I can only concur in this opinion.
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