Tommy Aubert VS David Guidry, James Dies, d/b/a Jimmy's Towing & Recovery and Westpoint Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 0809 TOMMY AUBERT VERSUS DAVID GUIDRY JAMES DIES D BA JIMMY TOWING S RECOVERY AND WESTPORT INSURANCE COMPANY Judgment Rendered v JUL 2 9 2010 On Appeal from the Thirty Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket No 149 416 Honorable George J Larke Jr Judge Presiding Louis R Koerner Counsel for PlaintiffsAppellees Houma Louisiana Tommy Aubert Felicia Aubert Tommy Aubert Jr and Jordan Aubert L Lane Roy Alyse Richard Lafayette Louisiana Counsel for DefendantsAppellants David Guidry James Dies d ba s Jimmy Towing Recovery and Westport Insurance Company BEFORE DOWNING GAIDRY AND MCCLENDON JJ MCCLENDON 7 In this personal injury suit the defendants appeal a trial court judgment granting the plaintiffs motion for additur following a jury verdict The plaintiffs answered the appeal For the reasons that follow we affirm the judgment of the trial court FACTUAL AND PROCEDURAL HISTORY This matter arises from a lowspeed rearend automobile accident that occurred on October 15 2005 in Terrebonne Parish The accident occurred when a tow truck owned by the defendant James Dies db a Jimmy Towing s and Recovery and operated by the defendant David Guidry rearended a Ford Expedition owned and operated by the plaintiff Tommy Aubert Aubert filed a petition for damages on September 21 2006 against Dies Guidry and Westport Insurance Company the insurer of the tow truck alleging that he was entitled to damages for personal injuries medical expenses and loss of wages An amended petition was filed on February 22 2007 adding Aubert wife as s plaintiff and adding additional claims for loss of consortium for her and their two minor children A three day jury trial was held concluding on April 24 2008 The jury returned a unanimous verdict allocating fault of 70 to defendants and 30 to Aubert The jury also made the following damage awards to Aubert Past physical pain and suffering 00 000 10 Future physical pain and suffering 0 Physical disability impairment and 00 000 3 inconvenience The effect of plaintiff injuries and s inconvenience on the normal pursuits and pleasures of life 00 000 15 Mental anguish 0 Loss of past income 00 500 11 Impairment of future earning capacity 00 500 18 Past medical expenses 00 000 56 2 0 Future medical expenses 00 000 114 TOTAL Additionally plaintiff wife and his two minor children were each awarded s 00 000 5 for loss of consortium by the jury Thereafter plaintiffs filed a Motion for Judgment Notwithstanding the Verdict or Alternatively for a New Trial and or Additur as to both liability and damages Following a hearing on July 11 2008 the trial court granted plaintiffs motion for additur and increased the general damages award to Aubert from 00 000 28 to 100 00 000 Otherwise the motion was denied Defendants appealed and plaintiffs answered the appeal ASSIGNMENTS OF ERROR In their appeal defendants assign the following as error 1 The jury did not abuse its discretion in awarding general damages of 00 000 28 to the plaintiff 2 The trial court abused its discretion in granting plaintiffs motion for additur to increase the general damages award to 100 00 000 Plaintiffs also answered the appeal asserting 1 The additur granted by the trial court was improperly low 2 The jury erred in finding that plaintiff was 30 at fault 3 The jury erred in failing to award the full amount of damages 4 The trial court should have granted a judgment notwithstanding the verdict JNOV 5 The decision of the jury was impacted by errors of law and constituted a compromise or quotient jury verdict On August 13 2008 the trial court signed a judgment granting the motion for additur filed by plaintiffs and ordering that defendants file a written acceptance or refusal of the additur within ten days It was also ordered that should the additur not be accepted a new trial would be ordered On September 18 2008 defendants filed their motion for appeal On May 29 2009 a rule to show cause was issued by this Court asking whether the appeal should be dismissed because the record did not contain a signed judgment in accordance with the jury verdict and because the conditional nature of the trial court August 13 2008 judgment remained pending s We also asked whether the judgment of August 13 2008 was a proper judgment with the required specificity as to the amount of damages awarded On November 2 2009 this panel issued an interim order ordering that the appellate record be supplemented with a new judgment correcting the deficiencies as set forth therein On December 2 2009 a consolidated judgment was signed by the trial court correcting the deficiencies and which included a verification of the acceptance of the additur by the defendants 3 DISCUSSION Aubert testified that on October 15 2005 he left his dentist office s following an appointment and was on his way to the pharmacy He stated that as he approached an intersection traffic was congested and he stopped waiting for the traffic light to turn green Aubert testified that he was stopped and remained stopped when his vehicle was hit from behind Guidry testified however that when Aubert began to move after the traffic light turned green Guidry started to roll behind him Guidry testified that he was barely letting off the clutch when Aubert hit the brakes Guidry stated that he never saw Aubert sbrake lights Dawn Celestin the state trooper who investigated the accident had no specific recollection of the accident investigation At trial she testified according to her report and stated that Guidry told her that plaintiff let his foot off the brakes to move forward and then hit the brakes again causing Guidry to hit s Aubert vehicle Aubert told her that he was stopped proceeded forward then stopped again to let another vehicle merge onto the roadway from a driveway since traffic was backed up at which time he was hit by Guidry Guidry received a citation Aubert did not Trooper Celestin noted very minor damage to the tow s truck front bumper and minor damage to Aubert rear bumper s Aubert went to an Urgent Care facility the following day complaining of pain in his neck right shoulder and lower back He testified that he had no prior neck or back problems Aubert was given pain medication He attempted physical therapy for his symptoms but stated that the therapy did not help Aubert was referred to Dr David W Aiken Jr Dr Aiken testified by video deposition and was qualified as an expert in orthopedic surgery He testified that he first saw Aubert on July 17 2006 Aubert gave Dr Aiken a history of an automobile accident in October 2005 when his vehicle was rear ended Thereafter Aubert stated he began to feel pain in the lower back shoulders right arm and neck Dr Aiken ordered cervical and lumbar spine MRIs The MRI of the neck revealed a large disc rupture on the right side at C5 6 Dr Aiken M was of the opinion that Aubert was a good candidate for surgery and referred him to Dr Rand Voorhies Dr Voorhies qualified as an expert in neurosurgery also testified by video deposition He stated that Aubert gave him a history of a motor vehicle accident in October 2005 Aubert indicated that by the next day he developed neck stiffness and pain and numbness down his right arm Aubert told Dr Voorhies that he had no such problems prior to the accident Dr Voorhies reviewed the June 2006 cervical MRI which showed disc herniations at the C5 6 and C67 levels He testified that the herniation at C5 6 was the big problem but that C6 7 was also a bad disc He testified that although Aubert had a significant physical impairment he did not show significant secondary effects in terms of psychological or emotional distress and he was handling the problem quite well Dr Voorhies also found no symptom magnification by plaintiff calling him a very straightforward patient The decision was made to operate not only on the very symptomatic disc at C5 6 but also at C6 7 because of the increased stress and strain on the neighboring disc An anterior cervical discectomy and fusion at C5 6 and C6 7 was performed by Dr Voorhies on November 24 2006 and went extremely well Aubert continued to do well postoperatively and in January 2007 requested permission to go back to work Dr Voorhies authorized plaintiff return to work s with restrictions In February 2008 finding Aubert to be at maximum medical improvement Dr Voorhies assigned him a whole person impairment rating of 15 Aubert returned to Dr Aiken after the surgery in January 2007 complaining of low back pain with tenderness and muscle spasm Aubert planned to return to work in February 2007 and Dr Aiken advised Aubert to take his pain medication rest and avoid heavy lifting and bending When Dr Aiken saw Aubert again in April 2007 plaintiff was having constant lower back pain and stated that his back pain was making him miserable Aubert also indicated to Dr Aiken that he was experiencing intermittent neck pain k Dr Aiken assessed plaintiff with an 8 permanent partial impairment He was also of the opinion that plaintiff back problems in the neck and lower s back were consistent with the accident He further stated that although the MRI of the lower back was normal Aubert had continued complaints of pain muscle spasm increased pain with motion and the need for medication Dr Aiken felt that if Aubert back worsened surgery might be possible in the future s However the only current objective abnormality in the lower back was the muscle spasms experienced by plaintiff Defendants independent medical examiner was Dr Anthony S Ioppolo Dr Ioppolo testified by video deposition June 14 2007 He testified that he saw Aubert on He took Aubert medical history of lower back and neck pain s resulting from an automobile accident The MRI of Aubert lumbar spine s showed no evidence of herniations or compressed nerves and Dr Ioppolo saw nothing that he could attribute to trauma Dr Ioppolo was of the opinion that slower back pain was degenerative in nature Aubert Aubert testified that he had been employed as a full time custodian for the parish school board since 1989 and was currently the head custodian at an elementary school Plaintiff also testified that he cleaned offices four nights a week for his father janitorial business and had done so since 1978 s Aubert stated that because of his back problems he relied on his assistants to help him with the school board position and that his brother helped him in the cleaning business However he could no longer work extra jobs as he had in the past Aubert testified that although he was still in pain he took medication at night to avoid drowsiness and that he worked despite the pain He also stated that until the accident with the exception of some dental problems he had been healthy his entire life In their appeal defendants argue that the jury did not abuse its discretion in awarding 28 in general damages and therefore the trial court erred 00 000 in granting plaintiffs motion for additur Plaintiffs assert in their answer to the appeal that the additur although proper was inadequate and unreasonably low A Louisiana Code of Civil Procedure article 1814 provides for remittitur or additur as an alternative to a new trial as follows If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only it may indicate to the party or his attorney within what time he may enter a remittitur or additur This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be as an alternative to a new trial and is to be entered only if the issue of quantum is clearly and fairly separable from other issues in the case If a remittitur or additur is entered then the court shall reform the jury verdict or judgment in accordance therewith Comment b to the above quoted article states that the purpose of this legislation is to serve judicial efficiency by allowing the parties to avoid a possibly unnecessary new trial and then to seek appellate review of the correctness of the judgment reformed by additur or remittitur Accardo v Cenac 97 2320 p 7 App La 1 Cir 11 722 So 302 306 98 6 2d An appeal of a judgment reformed by additur is allowed by LSA C art 20836 by either the party P seeking the reformed judgment or the party adversely affected by the reformed judgment Accardo 972320 at p 8 722 So at 307 2d The role of the appellate court and the trial court in a jury trial is not to replace or second guess the jury and determine what the court thinks is an appropriate award of damages The jury or fact finder has much discretion in the award of damages LSAC art 2324 Youn v Maritime Overseas C 1 Corp 623 So 1257 1260 La 1993 Temple v State ex rel Dept of 2d Transp and Dev 021977 p 13 La 1 Cir 6 858 So 569 App 03 27 2d 579 The determination of an appropriate award is fact intensive and dependent on the particular injury to the particular plaintiff under the particular circumstances Youn 623 So at 1261 2d However a trial court may offer an additur if the court finds that the jury award was so inadequate that the jury abused its discretion and a new trial Z Article 2083B provides In reviewing a judgment reformed in accordance with a remittitur or additur the court shall consider the reasonableness of the underlying jury verdict 7 should be granted Thus the decision to offer an additur rests on whether the grant of a new trial would be proper Temple 02 1977 at p 13 858 So at 2d 579 In other words if the jury award is within its range of discretion an s additur is not proper Accardo 97 2320 at p 9 722 So at 307 2d Nevertheless when a jury awards an amount that is lower than the lowest reasonable amount additur becomes proper Once additur is determined to be proper the amount awarded on additur should be raised only to the lowest reasonable amount raising the amount awarded any higher than that is an abuse of the trial judge discretion s Accardo 97 2320 at p 9 722 So at 2d 307 08 The appellate standard of review for the grant of a new trial on grounds involving the trial court discretion is the same abuse of discretion standard s Temple 02 1977 at p 14 858 So at 580 2d Accordingly we must determine whether the jury award of general s damages was within its range of discretion If the award was not within the s jury range of discretion then the trial court did not abuse its discretion in granting additur Furthermore in reviewing the award of additur we must determine if the amount awarded by the trial judge was the lowest amount that a jury could have reasonably awarded See Accardo 972320 at p 9 722 2d So at 308 In the present case the trial court found that the damages awarded to the plaintiffs were inadequate in some respects The jury awarded Aubert 00 000 10 for past physical pain and suffering 3for physical disability 00 000 and impairment and 15 for the effect of the injuries and inconvenience 00 000 The jury awarded nothing for mental anguish or future pain and suffering Thus the total amount of general damages awarded by the jury was 28 in 00 000 general damages fusion The trial court found this award low for a two level cervical Although recognizing that there was little if any testimony by the plaintiff regarding his pain and suffering associated with the surgery the trial court found the general damages award to be ridiculously low and not reasonable Accordingly the trial court granted the additur raising the general damages award to 100 the lowest amount it believed could reasonably 00 000 be awarded Both parties appealed the reformed judgment reflecting the additur The defendants contend that the jury award of 28 in general damages was 00 000 supported by the law and evidence and was not an abuse of discretion The plaintiffs maintain that even with the trial court grant of additur the award of s general damages was unreasonably low Following a thorough review of the record we agree with the trial court and conclude that a general damages award of 28 for the two level 00 000 cervical fusion was abusively low The record contains a description of the anterior cervical discectomy and fusion performed by Dr Voorhies In scraping out the bad discs Dr Voorhies discovered very large posterior osteophytes which required quite a bit of delicate drilling Bone grafts were implanted and anchored in place with a plate and permanent screws Dr Voorhies stated that although Aubert did very well with his surgery he did have a twolevel fusion with the resultant stress on the other levels in his neck and he will never have a normal neck We conclude that an award of only 28 under these 00 000 circumstances was an abuse of the jury discretion such that the trial court was s proper to conclude that a new trial was warranted with respect to these elements of the damage award Further after a thorough review of the record we cannot say that the trial court abused its discretion in increasing the general damages award to 00 000 100 While this amount was clearly on the low end the trial court could only raise the amount to the lowest amount supported by the jurisprudence See Accardo 97 2320 at p 9 722 So at 308 2d Accordingly plaintiffs and defendants assignments of error regarding the additur are without merit Plaintiffs also assert in their answer to the appeal that the trial court erred in failing to make any award for Aubert future medical expenses and pain and s suffering regarding his lower back At the July 11 2008 hearing the trial court found no error on the part of the jury in failing to award damages for future back 2 surgery The court determined that the evidence established that there was a question as to whether Aubert would need surgery on his lower back and stated that the jury felt that he probably did not need it The testimony showed that although Aubert was suffering from lower back pain Dr Aiken could not definitively say that surgery was required MRI of June 2006 was normal showing no abnormalities The However Dr Aiken stated that an MRI in the future might show something different Defendants expert Dr Ioppolo was of the opinion that Aubert lower back pain was more s likely degenerative in nature rather than related to a traumatic event After reviewing the record before us and finding a reasonable factual basis for its conclusion we can find no manifest error in the implicit factual determination by the jury that Aubert lower back pain was either unrelated to the accident or s that the need for lower back surgery was not proven Plaintiffs further contend that the jury erred in finding Aubert 30 at fault when according to law and well established jurisprudence the following driver in a rearend accident is presumed to be at fault and must prove a lack of fault to avoid liability The trial court found no error in the jury allocation of fault s The assessment of percentages of fault is a factual determination Magee v Pittman 98 1164 p 12 La 1 Cir 5 761 So 731 App 00 12 2d 742 writ denied 00 1694 La 9 768 So 31 and writ denied 00 1684 00 22 2d La 9 768 So 602 We must give great deference to the allocation of 00 22 2d fault as determined by the trier of fact Fontenot v Patterson Ins 09 0669 p 22 La 10 23 So 259 274 09 20 3d We are also aware that the allocation of fault is not an exact science or the search for one precise ratio but rather an acceptable range and that any allocation by the fact finder within that range cannot be clearly wrong Id The allocation of fault is within the sound discretion of the trier of fact and will not be disturbed on appeal in the absence of manifest error Great West Cas Co v State ex rel Dept of Transp and Dev 061776 p 7 La 1 Cir 3 960 So 973 977 78 writ App 07 28 2d denied 071227 La 07 14 9 963 So 2d 10 1005 Only after making a determination that the trier of fact apportionment of fault is clearly wrong can s an appellate court disturb the award Fontenot 090669 at p 22 23 So at 3d 274 Thus in order to reverse a fact finder determination of fact an appellate s court must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong Stobart v State through Dept of Transp and Dev 617 So 880 882 2d La 1993 Further where two permissible views of the evidence exist the fact s finder choice between them cannot be manifestly erroneous or clearly wrong Huddleston v Ronald Adams Contractor Inc 95 0987 La 1 Cir App 96 23 2 671 So 533 536 2d Louisiana Revised Statutes 32 imposes a duty on a motorist not to 81 follow another vehicle more closely than is reasonable and prudent having due regard for the speed of the preceding vehicle the traffic conditions and the condition of the roadway In a rearend collision the following motorist is presumed to have breached this duty and he bears the burden of proving that he was not negligent Phipps v Allstate Ins Co 05 651 pp 4 5 La 5 Cir App 06 27 2 924 So 1081 1084 2d The law has established a rebuttable presumption that a following motorist who strikes a preceding motorist from the rear has breached the standard of conduct prescribed by La R 32 and is therefore liable for the S 81A accident Daigle v Humphrey 961891 La 4 Cir 3 691 So App 97 12 2d 260 262 The rule is based on the premise that a following motorist whose vehicle rearends a preceding motorist either has failed in his responsibility to maintain a sharp lookout or has followed at a distance from the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances A following motorist may rebut the presumption of negligence by proving the following things 1 that he had his vehicle under control 2 that Louisiana Revised Statutes 32 provides that the driver of a motor vehicle shall not follow 81A another vehicle more closely than is reasonable and prudent having due regard for the speed of such vehicle and the traffic upon and the condition of the highway 11 he closely observed the preceding vehicle and 3 that he followed at a safe distance under the circumstances Chambers v Graybiel 25 La 2 840 App Cir 6 639 So 361 366 writ denied 941948 La 10 644 94 22 2d 94 28 2d So 377 The following motorist may also avoid liability by proving that the driver of the lead vehicle negligently created a hazard that he could not reasonably avoid Daigle 691 So at 262 State Farm Mutual Automobile 2d Insurance Co v Roemer 426 So 205 209 La 4 Cir 1982 writ 2d App denied 433 So 154 La 1983 2d In this matter plaintiffs argue that there was no fault on the part of Aubert However the testimony was conflicting as to whether plaintiff stopped and remained stopped or whether he stopped moved forward and then stopped again In this regard the trial court stated ve I always had a problem taking any kind of decision away from the jury because I think they the trier of fact and they made the re right decision And I can disagree totally with the t time as to fault especially They split it 70 30 s jury claim at this that you felt it was a rear end I know there argument s collision and there was no fault on your part But I think what happened was the jury heard the testimony of the plaintiff the state trooper the defendant as to whether there was a start and stop or a stop And I think that probably gave them some questions as to the fault issue whether the plaintiff Mr Aubert had started and then he stopped causing a blockage on the road whatever and they felt there was some fault on the defendant So I really can see that they wrong in their 70 t re 30 ll I leave the the split of fault I think I can take that away t from the jury I think reasonable minds can come up with 70 30 split because of the facts We agree After a thorough review of the record we cannot say that the jury was clearly wrong in allocating 30 fault to Aubert Nor do we find merit in plaintiffs argument that the trial court erred in failing to grant their motion for a judgment notwithstanding the verdict QNOV Plaintiffs seem to contend that because the trial court found the damages portion 12 of the jury verdict unreasonable it should have disregarded the entire jury s verdict and conducted a de novo review as to all issues The trial court denied the motion for NOV concluding that a new trial as to damages only was warranted thus offering the additur The motion for new trial requires a less stringent test than for a JNOV in that such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury Broussard v Stack 95 2508 p 16 La 1 Cir 9 680 So 771 781 App 96 27 2d The test for a NOV is harsh because a finding that a verdict is not supported by any substantial evidence leads to a directed verdict terminating the action without resubmission to another jury Gibson v Bossier City General Hosp 594 So 1332 2d 1336 La 2 Cir 1991 App Based on our review of the record we cannot conclude that the evidence pointed so strongly in favor of the plaintiffs that reasonable persons could not have reached different conclusions as to the other issues decided by the jury Accordingly we find no merit in plaintiffs argument that the trial court erred in refusing to grant their motion for a NOV Lastly plaintiffs argue that because the jury responded unanimously to all answers to the jury interrogatories despite the requirement that only nine of the twelve jurors had to agree to any answer there is a clear indication that the jury compromised and the jury verdict was a decision of consensus instead of a decision of conviction Thus they argue the jury was influenced by the majority and disregarded the trial court instructions s Accordingly plaintiffs argue the verdict should be granted no deference and we should be able to arrive at our own factual findings free from the tainted jury verdict A quotient verdict is one in which each of the jurors agree to submit a proposed damage award that is thereafter totaled and divided by twelve to reach an average McDaniel v Carencro Lions Club 051013 p 47 La 3 Cir App 06 12 7 934 So 945 979 writ denied 06 1998 La 11 940 So 2d 06 3 2d 671 citing Ritchey v Dees 540 So 1265 1269 La 3 Cir 1989 writ 2d App 13 denied 542 So 1387 La 1989 Use of quotient verdicts is not favored 2d because they preclude full deliberation on the issues and cause abandonment by some or all jurors of their conscientious convictions on material issues McDaniel 051013 at pp 47 48 934 So at 979 2d The trial court found no evidence to support plaintiffs allegation that the jury compromised its damage awards Nor after a thorough review do we find any evidence or indication whatsoever that the verdict of the jury was a quotient verdict This assignment of error is without merit CONCLUSION For the foregoing reasons the judgment of the trial court is affirmed Costs of this appeal are assessed equally between the plaintiffs and the defendants AFFIRMED 14
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