Clinton Mack and Effie Mack VS Dorothy Wiley and American National Property & Casualty Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT I NO 2007 CA 2344 jO t V CLINTON MACK AND EFFIE MACK VERSUS DOROTHY WILEY AND AMERICAN NATIONAL XrJ PROPERTY AND CASUALTY COMPANY Judgment On Appeal Rendered May 2 2008 from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 524 269 Honorable Wilson Fields Judge Presiding Vincent L Bowers Attorney for Plaintiffs Appellants New Orleans LA Clinton and Effie Mack Arthur H Andrews Attorney for Defendants Appellees Dorothy Wiley and ANPAC Louisiana Insurance Company Baton Rouge LA BEFORE CARTER J C PETTIGREW AND WELCH JJ CARTER C J appellants Clinton and Effie Mack the Macks Plaintiffs trial court Defendants judgment on jury verdict a in one of the personal injury For the following in the record amend the trial judgments reflecting the jury verdict and affirm a case and ANPAC Louisiana Insurance appellees Dorothy Wiley Company ANP AC answered the appeal vacate this appeal reasons court we judgment amended as FACTS This action arises from 20 2004 in East Baton a motor vehicle accident that occurred automobile westbound in the curbside lane street in cross allowed was Zachary as he was approached the Wiley also had a eastbound lane of travel left turn at the cross turn Ms to a At the light but she had waiting for to left turn on an cleared from Ms The Mack Wiley s making the the same in stop again because the a Wiley location the inside that she could make to turn Ms opportunity The red near a and which time Ms stopped a red pickup pickup truck had been opposite side of the highway Wiley when the driver apparently decided the intersection instead of at to clear so 64 Mack had Mr same May driving his Highway highway easterly direction After was signal light a an but then had make Louisiana by street suddenly darted in front of her path sitting and waiting facing controlled wait for the traffic cross street Wiley began her left truck green to on both sides of the driving her pickup truck in Ms a that access to stores on light green Mr Mack Rouge Parish Louisiana on turn path she immediately to go straight through After the red saw Mr Mack pickup truck s automobile petition incorrectly named American National Property and Casualty Company as Dorothy Wiley s insurer however ANPAC answered the petition accurately reflecting the true and correct name of Dorothy Wiley s insurance carrier s 2 attempted finish her left to turn Wiley hesitated briefly and then Ms the intersection approaching fast across the highway believing that Mack s vehicle would either change lanes Mack s automobile struck the right side of the back Wiley pickup s truck before Ms Mr Mack denied seeing Ms Wiley cleared Wiley pickup s Mr collision estimated his hour speed pickup s also denied was was was attemptmg to stopped at the red enter pain and he secured room and she met 71 year old Mack s left knee experienced in ambulance an backboard with her husband Mr follow up at the was his ifhis pain did family physician left knee 2 to rest at home care rear tire off of Ms area that Ms Wiley strike the dashboard of to the onset to the hospital While in the x rayed for 2 3 examined not days He resolve Four hospital an x ray ofMr Mack s 3 called room the being discharged with advised to return later Mr Mack a for went to pain knee and noted The driver of the third vehicle involved in the collision is not lawsuit was prescribed pain Dr Bradford J Smith because of persistent Dr Smith ordered emergency emergency and was days of back and neck Ms Mack cervical collar a medication for muscle strain and contusions before instructions avoid the collide with another vehicle Mr Mack transported on a to 2 Additionally was to light exiting the shopping The collision caused Mr Mack his vehicle late 40 miles per hour in the 45 mile per truck and forced her truck that directly in was pickup truck and he red seeing the approximately too was of Ms area lane of travel s truck until she The force of the collision knocked the back zone Wiley Mack tire rear Mr Mack front of his vehicle in his lane of travel and it Mr Unfortunately stop or Mr in his a bruise party to this on the knee revealed well as by the x pain before as evidence of Because Mr Mack had ray Dr Smith referred Mr Mack never sought treatment for two months with Goff for his neck and back strain that Dr Bankston first saw Mr a never injury Additionally chiropractor sought Mack on June 4 Dr Michael J when Mr Mack 2004 only experienced occasional treatment Mr for left knee Mack with an pain prior to aggravation of the accident Dr Bankston a pre existing degenerative arthritic condition in all three compartments of his left knee knee bruise deep Mr and stiffness in his left knee before the accident and that he had diagnosed a surgeon Dr A eventually resolved described the accident and stated that he had soreness was complained ofleft knee orthopedic to an Brent Bankston for further evaluation of the knee Mack disease that degenerative joint Dr joint as Bankston recommended conservative well as treatment combining anti inflammatory medication knee exercises and time for the pain to resolve back to Mr Mr Mack that he may because of the Mack s pre accident level Dr Bankston advised eventually need injections significant arthritic condition familiar with knee replacement successfully replaced fourteen surgery on July previously soon possible because he that the surgery July 21 replacement Mr Mack because he had his right Approximately recommended knee was was medically replacement in tremendous necessary 2004 4 was knee one Bankston and six weeks after the 6 2004 Mr Mack returned to Dr Bankston and that the as total knee in his knee years earlier in 1990 month after his initial visit with Dr accident or a surgery be pain requested performed Dr Bankston and the surgery was as agreed scheduled for After the surgery Mr Mack remained in rehabilitation he then stayed home Mr Mack continued until he was Mr Mack time job discharged 2005 for 31 that revealed Mack mild s a was not pain able a replacement on 20 25 to work at 3 During the following He was not pass additional sought pain Mr Mack s Dr Johnston ordered knee and he 30 saw and Mr Mack again driving school bus a rays ofrecovery almost Dr Johnston 2006 x Mr Mack was on that Mr opined one again doing much permanent impairment of his left knee thereafter Mr Mack his full surgeon Dr Francis Allen Johnston surgery January the entire time of work but could normal progress for his stage was eight months later to return to residual left knee good alignment in year after the knee better with attempted orthopedic some days and days before returning Throughout of all school bus drivers from another for three outpatient physical therapy for three months October 25 2004 in 2005 Mr Mack treatment more school bus driver with First Student Inc physical required May on facility for ten accident and convalescence he as a summer the s a hospitalized but for Shortly different a employer and only part time Mr Mack and his wife filed suit for her on liability May insurer ANPAC 22 24 awarding 2007 Mr Mack pain and suffering and wages the awarding on delayed return to a 9 2004 7 500 00 for mental Ms Mack an as Wiley and Ms Following a jury trial verdict in favor of the Macks 32 000 00 for past medical expenses Mr Mack also suffered his September jury returned allocated fault for the accident 3 damages against anguish and 7 500 00 for 7 500 00 for lost 7 500 00 for loss of consortium follows 70 to Ms unrelated mild heart attack in work 5 The jury Wiley 20 January 2005 which to the pickup trial judgment court rendered verdict and allocation on sum 38 150 00 to Mr of the jury devolutively appeal contesting past medical expense award and Mr Mack of fault and past medical expense award incorrectly assessed costs s also Wiley and ANPAC answered the appeal court Thus the reflecting the jury Ms Mack with the costs to be determined to now 27 2007 July Mack the amounts awarded in accordance with the reducing of fault for the total 5 250 00 Macks final a to Mr truck and 10 unknown driver of the red by a The allocation of fault the s award general damages well s Mack and later rule contesting the jury as jury s allocation that the trial arguing as s Ms 4 THE JUDGMENT Initially we address must procedural a The record before judgments contained in the record the issues judgments on the merits was merits was rendered rendered presented July on August on at 27 this assessment of costs Wiley and ANPAC 4 We note that Ms judgment but they later appeal bond which the trial ANPAc filed an answer to appeal of the July 27 jurisdiction to allow lose its 1280 La App Estate Com n La same much verdict and it significantly differs s costs the issue of court judgment orders Ms The record also contains a third and ANPAc also the Macks appeal on and ANPAc Wiley 2007 judgment was not App 799 So 2d 768 I cir 9 25 98 6 November 29 ever the withdrawal oftheir 3 cir 10 3101 97 1621 the suspensively appealed the July 27 moved to withdraw their appeal without furnishing the Ms Wiley and court allowed on September 19 2007 record does not reflect that Ms their on judgment is and the second Wiley 2007 judgment on but the second by rule all two judgment judgments reflect the judgment orders that to pay contains us The first The first will be determined costs trial Both 29 2007 detailed in its recitation of the jury in the jury 2007 and the second dollar amounts awarded to the Macks more regarding multiple Issue filed the 2007 Because the suspensive appeal bond perfected and the trial court did not appeal See Goodwin v Tilley 01 771 772 Levet v 721 So 2d 928 929 Louisiana Real judgment that rendered was on of the total ANPAC with 70 October 9 costs after 2007 hearing a held was Wiley and Ms taxing on a motion to tax costs It is well settled under 926 So 2d 709 3 31 06 judgments to phraseology but amendments to i way of by e or Oreman revised judgment that has been by the trial writ denied 06 1130 712 court 05 955 Oreman v a except in the La La 1 9 06 5 Cir App 936 So 2d Louisiana Code of Civil Procedure article 1951 limits the amendment 206 of law provided by manner that jurisprudence be altered amended cannot signed our not a Courts have the substance timely motion for McGee in calculation and alteration of errors judgments made without See Id nullities the correction of recourse trial a new or Wilkinson 03 1178 v held substantive uniformly to the proper by appeal La to procedures be absolute 1 Cir 4 2 04 App 878 So 2d 552 554 555 It is clear from second judgment The first a reading contains judgment of the two substantive a states that the costs to When a the proper Frisard writ v court are the amended procedure 00 0126 denied further La Ms La provides 17 3 that when Oreman 926 So 2d at 712 7 assessment Wiley and a 756 an trial is an court costs a future without absolute recourse nullity 747 So 2d 813 So 2d a of ANPAC to pay all judgment judgment is 00 the merits that the be determined after I Cir 12 28 99 App signs another the second judgment legal effect to substantively amends Autin 98 2637 jurisprudence then trial on change in the hearing and the second judgment orders costs judgments 1145 signs absolute a 819 Louisiana judgment and nullity and without The first dated judgment and appears in all respects appeal was signed a a motion July be to a 2007 alter the the trial court judgment signed the substance of the first judgment we must vacate 1704 La 2007 appeal 27 2007 However we before In their to Wiley us answer to an error the Macks by the trial Nobel Ins vacate contain parties contained absolute an Therefore hereby and ANPAC is a final judgment writ denied 629 So 2d 1179 Co 03 find that we the nullity August 29 costs that Cir 130108 975 appealed the costs on So 2d 666 9 2007 judgment Ms 681 therefore 8 assessment were This after an v costs against Hoyt v La App 1 Cir addressed in the costs judgment 42 872 will not was hearing that La App Wiley and ANPAC have we Ms See additional Pou of properly before appealed 663 664 costs See Little the merits Wiley and ANPAC and taxed them was not The separately appealable judgment rendered followed the judgment judgment dated court costs is not 1993 judgment ofrecord dated October Ms in the 623 So 2d 651 La the first appeal court the judgment that fixed State Farm Mut Auto Ins Co a we specifically addresses conclude that the issue of court because third prohibition v 884 So 2d 596 602 judgment is null and void and make reference this See Ducombs motion not clearly alters 29 2007 August then court of the or one notices such court court judgment The July on our own on in violation of the When this 4 Cir 7 21 04 App the second 1951 art why the trial the record does matter because judgment either by the trial signed by judgment from which this valid final Nevertheless the second in LSA C C P was It is unclear from the record taken second judgment in the to 27 consider 2 not their assignment of regarding error costs in their they raised that this answer to appeal FAULT We turn The Macks argue that the allocation of fault Ms Wiley 100 was fault error fault to the driver of the red the regarding jury erred in fault for the accident and in at Mr Mack and 20 Ms assignments of the to now not assigning pickup jury finding that fault to 10 Conversely truck 10 Wiley and ANPAC contend that the jury erred in assessing only to Mr appropriate percentage of fault for Mack because the should have been 100 following reasons For the we s disagree Mr Mack that the jury erred in their fault assessments The Louisiana Railway Co Supreme Court in 00 0066 the standard for 10 30100 La dismissed 532 U S 992 Duncan v Kansas So 2d 670 773 149 L Ed 2d 508 121 S Ct 1651 City Southern 680 681 2001 cert set forth reviewing comparative fault determinations as follows This Court has addressed the allocation of previously fault and the standard of review to be courts reviewing such determinations considerations applied by appellate Finding the same the fault allocation process as are applied in quantum assessments we concluded the trier of fact is owed some deference in allocation fault since the finding of applicable to percentages of fault is also Frey 95 1119 La 16 1 factual determination a 96 666 So 2d 607 other factual determinations 609 Clement 610 v As with the trier of fact is vested with much discretion in its allocation of fault Id Therefore manifestly trier of fact erroneous Rapides Parish The trier of fact manifestly a or Police s clearly Jury s allocation 06 2001 clearly is subject wrong standard of review La fIndings of fact will erroneous or of fault wrong 9 not 1 16 08 Hebert 974 So 2d 635 be disturbed unless Stobart v State the to v 654 they through Dept are of and Transp a clearly only extent of which is respectively If 882 appellate an court finds but apportionment of fault it should adjust the award wrong the to 617 So 2d 880 Development lowering or raising it the to highest reasonably within the fact finder or point lowest discretion Hebert factors s consider 974 So 2d at 654 655 The Louisiana when reviewing Cas Ins allocation of fault in Watson an 469 So 2d 967 Co influence the degree risk a was created sought by the conduct inferior and actor to guide 5 proceed an percentage any not an appellate acceptable be cannot the of the an awareness 3 the capacities of the whether the conduct 1 significance actor 2 danger how of what whether was superior or extenuating circumstances which might require the court s Id thought determination could to as be reasonably These factors also the highest assessed to lowest or each party We must be mindful that the allocation of fault at 611 science range involved by the conduct of fault that exact or 4 Various factors may 1985 La in haste without proper Clement 666 So 2d is 974 to State Farm Fire and v assigned including of fault resulted from inadvertence great Court addressed what Supreme or the search for and that any allocation clearly wrong Hebert one precise ratio but rather by the factfinder within that 974 So 2d at 655 an range Clement 666 So 2d at 611 The Macks argue that the law and facts support 100 fault to Ms lane of travel he was Mr Wiley They a left turning Mack is afforded the intersection the benefit of 10 assessment motorist who entered Mr argue that Mr Mack proceeding through an was on a a of Mack s the favored motorist because green light It is correct that presumption of Ms Wiley s negligence since Ms oncoming driver Mr Wiley was Mack had obey the law in allowing him yield to his of way So 2d 824 right a Slagel 37 791 07 14 3 Cyrus v U S 954 So 2d 261 Mack also testified that he maneuver Mr Mack Wiley Ms never saw the red never saw that had caused her From this to Wiley see Covey a duty to Cir 3 Cir 9 27 06 App 1 10 97 a green See light 700 So 2d 1163 706 So 2d 979 Higgins v are Wiley s Whigham 162 vehicle and the red convinced that he failed to v an impact before truck that pulled Mr out in turn 1977 proceeding through the intersection 11 an 97 0693 926 La Hayes even La La App Since Mr Mack did pickup truck that exercise intersection were seen A driver 632 97 2740 349 So 2d 918 La See impact Boyd writ denied 1167 Johnson writs denied 351 So 2d 161 Ms pickup truck until it 939 So 2d 630 proceed cautiously when entering he does have Cir 2 App what he should have v has La of the cause testimony the jury could have easily determined that that he could have taken evasive action before the La 2 Cir App stop midway through her left so 06 382 s moments pickup inattentive in that he failed to was La to 268 directly in front of him in his lane of travel front of Ms Wiley would to the 41 826 Co Ins Agencies Mr Mack testified that he was an still be assessed with can comparative fault if his substandard conduct contributed accident as writ denied 03 3508 La 3 12 04 favored motorist a and turn that Ms assume Roberson v 1290 1291 However to left hand a continue in his proper lane of travel and to See 858 So 2d 1288 11 18 03 869 right executing when App 16 1 98 1 4 Cir not see clearly in sight we appropriate degree of care before Ms Clearly after she saw Mr Mack Ms negligence either Wiley Wiley change lanes degree of action of continuing s vehicle s or stop reflects poor judgment in complete her left hand turn to be roadway The law considers a motorist may driver certain the and execute turn be can a left 05 1532 writ denied 06 2000 La extends Mack vehicles to Further Ms pickup truck finding began her Wiley dangerous maneuver a duty a to make State Farm Mutual v 3 5 06 929 So 2d 871 The scope of this 940 So 2d 672 opposite direction such as 875 duty Mr testimony about the sudden path after she began her left of the red movement supports the jury turn s of this to clear before she turn and she saw to turn stop for it opportunity posing to a that the red in the to pass Ms Wiley truck pickup opposite direction s path across was instead of Ms turn Wiley would have safely completed her left completed the turn before she 12 was pickup turning the road without Wiley began her left stopped Wiley had Obviously had the red pickup truck after Ms cause When the red By that time however safely continue threat course almost has turn Wiley testified that she waited for traffic her stop Ms the favored the able changed its Reed across to was Wiley s suddenly darted in front of vehicles left exercising the pickup truck contributed presumably waiting to a 3 Cir from the approaching into her Ms App 11 3 06 that the driver of the red accident truck La also Id vehicle s attempting not turn the most completed safely Automobile Ins Co was turn that she believed Mr Mack would necessary to care with her left the intersection approaching explanation s proceed to she lost oncoming not suddenly which caused her turn struck As it by was to Ms Mr Mack s vehicle Thus we also contributed In to this accident s finding that Mr Mack and the driver of the red accident is the jury supported by all jury reasonably found that the summary was 10 at fault Ms pickup truck the record three drivers Under the circumstances substandard conduct caused this accident jury pickup truck driver conclude that the action of the red was Wiley 20 Therefore fault in at find we 70 was no at the fault the causing manifest error in allocation of fault s PAST MEDICAL EXPENSES The Macks next challenge the jury award for past medical expenses s They contend that the jury ignored the uncontested documented evidence of Mr Mack expenses 32 000 00 for awarded counter medical s that the Mr Mack was to award all seriously injured and Ms Wiley and ANPAC A plaintiff he incurs Transp 1134 as and a may s only sustained are Rhodes 94 1758 La seeking them by Paul Fire So 2d 1063 a Marine Ins 1071 less even v bruised knee and We find La certainty and State no merit 7 2 97 are as 06 987 The medical evidence 13 684 So 2d 688 So 2d 487 Past capable of being determined such they must preponderance of the evidence Co of through Dept 1 Cir 12 20 96 App special damages that with reasonable mathematical the person a reasonable medical expenses that 1148 writ not considered 97 0242 medical expenses St recover injury an Development Wiley and ANPAC Ms explanation ordinarily result of arbitrarily of the medical expenses because therefore the medical expense award should be to when it 37 674 15 past medical expenses jury refused not totaling La must be proven Venissat 15 App 3 Cir 8 07 by v 968 show the existence of the claimed injuries and accident Wright 889 So 2d 1115 causal connection between the a Gen Aviation Co v 1120 are supported by should be awarded unless there is that the bills suspicion 1071 by a are jury manifestly A unrelated errs treatment Gunn v of the unless such expenses of Ms Wiley case Mr Mack 15 674 La s surgery condition rather even was over incurred App 5 Cir dispute Mack was aggravation s situation where tortfeasor is a 14 11 required or to pay for unnecessary 801 So 2d 555 564 01 811 So 2d 942 related to a pre support past medical to of his pre existing are sustained in they found to in an an to Mr condition in the accident 968 So 2d at 1073 14 accident be related compensate the victim for the full aggravation injury Venissat the knee 32 000 00 for medical expenses existing condition is aggravated to excessive because existing degenerative arthritic for the surgery that pre at the victim in bad faith argue that the medical expenses accounts reasonable the amount of the medical expenses Ultimately however the jury awarded that required treatment by than the bruised knee he amount or for treatment and surgery incurred after the accident and ANPAC do not they these expenses and it fails to award the full amount of the Macks introduced evidence 37 claimed rather medical bills the accident Venissat 968 So 2d to writs denied 02 170 02 176 La 3 22 02 In this When claims for the The tortfeasor is victim treatment Robertson 01 347 5 Cir 11 30104 App contradictory evidence Id the medical expenses proven treatment and the if the victim has proven his medical expenses preponderance of the evidence medical La 684 So 2d at 1148 Rhodes accrued medical expenses 04 772 injuries In a accident the extent of the We full amount only speculate of Mr Mack amount We find we can amend the jury s the jury s thoughts in not the awarding uncontested and documented medical expenses s however that the less than what to as jury award for past medical expenses for s the evidence supported by was Therefore was error award of past medical expenses and render an an award of 37 674 15 commensurate with the total expenses established in the record GENERAL DAMAGES Finally jury abused its discretion Mack mental s pain by awarding inadequate general damages for suffering and in the anguish in the to the jury and Inc the an award of So 2d 1257 127 L Ed 2d 379 The role of La an exercise of discretion 17 10 5 00 5 of general and for Mr Mack Our jurisprudence damages so that cert 1993 La an Youn 1976 appellate v to be an in much discretion Coco Winston v court should rarely disturb Maritime Overseas 1114 Corp 623 114 S Ct 1059 reviewing general damages is appropriate award but rather by the trier offact Wainwright 774 So 2d 70 v to not to review the Fontenot 00 0492 Youn 623 So 2d at 1261 7 500 00 for his past and future 74 loss of consortium claim is not contested 15 The initial pain and suffering general damage award of 7 500 00 for his past and future mental anguish for a total 15 000 00 The 7 500 00 award for Mr Mack s past lost wages and and s has The discretion vested in denied 510 U S court appellate The jury awarded Mr Mack Mack s 1994 decide what it considers La 7 500 00 335 general damages 1261 7 500 00 clear abuse of that discretion a vast even of Mr appellate review such awards will be disturbed 341 So 2d 332 jury is great of assessment upon only when there has been Industries amount amount consistently held that in the is left assignment of error claiming that the address the Macks we 7 500 00 for Ms inquiry is whether the award for the particular injuries and their effects under the particular circumstances particular injured the on person is abuse of the much discretion of the trier of fact Youn 623 So 2d Reasonable damages in a particular case Youn in either direction award is could frequently disagree persons that which decrease the award Id If the appellate discretion has been committed it is then prior awards to determine the review the the Co We have the total a work for any occurred had on never reason the last pain suffering a during the school review of as a Prior In such general guide to greatly disproportionate Id Theriot v Allstate case and mental The assess and we find that anguish is below testimony 2004 prior year Prior to to at trial the accident that the accident Mr Mack sought medical treatment for pain in his left knee although soreness and stiffness at times testimony established that Mr Mack had arthritic condition in his left knee that accident abuse of 71 year old bus driver who had not missed day of school in experienced occasional medical was a or La 1993 reasonable trier of fact could showed that Mr Mack an to resort to carefully reviewed the record in this 15 000 00 award for that which only the should increase modification of the award truly similar injuries 625 So 2d 1337 1340 only when determines that is whether the present award is of past awards for mass Ins test serve general particular plaintiff court appropriate appropriate awards under similar circumstances court the to particular circumstances that the appellate under the 1260 reasonable trier of fact a particular injury It is at of measure 623 So 2d at 1261 beyond for the effects of the assess about the clear a was a pre he had The uncontroverted existing degenerative asymptomatic prior to the Immediately after his left knee hit the dashboard in his vehicle 16 at the time of the accident Mr Mack the triggered pain replacement opined Dr Bankston surgeon in Mr Mack that the surgery was pain began and did s Mr surgery testified that the knee that led to the orthopedic A second surgery knee replacement until he recovered from knee orthopedic s resolve not Mack s treating of the accident trauma necessity of a total knee Dr Johnston surgeon Mack warranted because of Mr s also pain and symptoms resulting from the aggravation of his underlying arthritic condition Dr Johnston testified that may have been enough and is no a little a medical evidence to schedule surgery when the pain is severe condition is present surgery is warranted There soon degenerative to the contrary Mr and Mrs Mack testified about the in the hospital three days and surgery was after the accident although six weeks in and about how difficult a rehabilitation and limiting Mr Mack continued to be in facility painful physical therapy sought ten Mack days after that Mr Mack has to a work the until the end of October additional medical experience pain treatment pain twice during the eighteen month time period following the before he returned stayed the recovery process He continued to five months after the date of the accident in his knee after the surgery and length of time Mr for the surgery and Additionally the medical testimony revealed permanent disability of 20 25 in his left knee because of the surgery It is a well settled rule of law that finds him and is tortuous responsible conduct aggravates a pre Gunn a defendant takes his victim for all natural and 801 So 2d at 563 probable victim for the full extent of the aggravation 17 Id he consequences of his When the tortfeasor existing condition the tortfeasor as must s conduct compensate the Furthermore there is a legal presumption that presumed injured a medical condition producing before the accident the have resulted from the accident if to was person disability is the disabling in good health but shortly after the accident the condition manifested itself Housley Cerise 579 So 2d 973 v 980 La 1991 In this the case difficulty with his left knee prior to the accident He job and help with work around the house left knee constant activities to were his knee pain severely only resolved that limited and he pain Accordingly we the need for total knee Considering for pain all of this suffering completely unable arthritic knee conditions ranged the from 65 000 00 to 14 000 00 one stays 765 range of surgical procedure See Henry 771 772 v 125 000 00 27 200 00 to work due where cases asymptomatic cases 05 0472 La much less intrusive cases with the Furthermore and more 892 So 2d 899 So 2d 576 many than longer hospital 2 Cir 1 26 05 4 22 05 cases with smaller awards in periods while App total knee damages in similar 125 000 00 often involved La s prior awards involved recovery Williams 39 318 cases His review of multiple traumatic injuries helpful outline of pertinent ranging from Most range 100 000 00 to writ denied he had symptomatic symptomatic necessitating arthroscopic procedures and shorter higher award a found that genera 15 000 00 to to his surgery anguish in became replacement surgeries and have perform become to have conducted and mental to find that the accident caused Mr Mack replacement we able surgical intervention degenerative joint condition in his left knee creating was real no After the accident with was Mack had Mr testimony established that cases for a with awards 70 000 00 involved scenarios where total knee 18 replacement surgeries See Ducombs 884 So 2d 03 1594 Ins Co 04 1465 denied Prescott La on our 3 Cir review suffering Mack 2d So find that the lowest jury for Mr amend the Mack loss of consortium and 1137 writs 636 637 Orgeron 636 So 2d 1033 Mack v writ 1041 are point that is reasonably general damage award s prior award of it to 15 000 00 for the lowest reasonable The quantum of all other claims 7 500 00 for Mr s 872 So 2d 630 94 yet occurred 644 So 2d 654 we we not State Farm Mutual Auto v 885 14 4 anguish and raise and mental 65 000 00 award Therefore 04 12 5 11 8 04 94 28 10 Moody 5 Cir App within the discretion of the 65 000 00 601 602 La 04 1386 denied 94 1895 La Based at App La 93 926 likely in the future but had were past lost wages and s affirmed with the pain amount the total comprising is of damage 7 500 00 for Ms exception of the award past medical expenses which is amended and rendered in the amount of of 37 674 15 CONCLUSION For the August foregoing 29 2007 and we reasons affirm the reflecting the jury verdict but past medical expenses in the past and future pain 65 000 00 and The jury we vacate July court judgment dated judgment of the trial court the trial 27 2007 amend the quantum amount suffering s we of 37 674 l5 and and mental Wiley and ANP AC against Ms Wiley subject to resulting the 70 in a to Mr by the jury total award in favor of Mr 19 sum of of Mack affirmed fault attributed and ANPAC in the full Mack in the amount awards of 7 500 00 for past lost wages are to Mr general damages for anguish 7 500 00 for loss of consortium to Ms Mack This award is awarding to Ms Mack and 77 121 91 and a total award in favor of Ms Mack and sum of against Ms Wiley and ANPAC in the full 5 250 00 All costs of this appeal are assessed to defendants appellees Dorothy Wiley and ANPAC Louisiana Insurance Company JUDGMENT OF AUGUST 29 2007 VACATED JUDGMENT OF JULY 27 2007 AFFIRMED AS AMENDED AND RENDERED 20
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