Tyrone Richardson VS Percy May and Farm Bureau Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUIS ANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 4977 s TYRONE RICHARDSON r VERSUS p PERCY MA AND FARM BUREAU INSURANCE COMPANY Y DATE OFJUDGMEN7 1 r ip y r i i IY 8 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COLJRT NUMBER 563 PARISH OF EAST BATON ROUGE 557 STATE OF L UISZANA HONORABLE JANICE CLARK JUDGE Counsel for Plaintiff Appellee Tyrone Richardson Gail N Baton McKay Rouge Louisiana Stacey Moak Christapher W Stidham Baton Rouge Louisiana Counsel for Defendants Appellants Louisiana Farm Bureau Casualty Insurance Company and Barbara Guillory May Donna May Hogan and Terri May Wilkes as the legal successors oF Percy May BEFORE CARTER C WHCPPLE KUHN GUIDRY GAIDRY J MCDONALD AND HUGHES JJ r r Disposition JUNE 25 2009 JiTDGMENT VACATED UNE 17 2009 JUDGMENT AFFIRMED r y Q ay P jL s 7 w 2 c 1 r KUHN J o Defendants Barbara Guillory May Donna May Hogan and Terri May Wilkes the legal successors of Percy May and their insurer Farm Bureau v Casualty Insurance Company Farm Bureau appeal two judgments issued by the trial court each of which awarded damages in favor of plaintiff lleeTyrone app Richardson as a result of a car accident We vacate the June 2S 2009 judgment and affirm the June 17 2009 judgment FACTS AND PROCEDURAL HISTORY On the morning of March 13 2007 whil Tyrone Richardson was stopped at a red light on Airline Highway in Baton Rouge Louisiana on his way to work his vehicle was struck twice by a vehicle driven by Percy May As a result of the collision Richardson vehicle was propelled into a nearby pole which then s collapsed on top of his car Richardson was extricated from his car by law enforcement and transported by ambulance to Our Lady of the Lake Hospital OLOL immediately following the accident Qn January 29 2008 Richardson filed a petition against Percy May and his insurer Farm Bureau for the damages he sustained as a result of the March 13 2007 accident After Percy May died apparently for causes unrelated to this accident his legal successors Barbara Guillory May Donna May Hogan and Terri May Wilkes were substituted for him as party defendants Defendants stipulated to Percy May liability and the matter proceeded to trial solely on the s issue of damages In the petition Richardson incorrectly identified Percy May insurer as Louisiana Farm s Bureau Casualty Insurance Company 2 1 After a trial at which documentary and testimonial evidence was adduced the trial court issued judgments in favor of Richardson and against defendants Notice of judgment was issued for the judgments signed on June 17 2009 and Jun 25 2009 This appeal followed MULTIPLE JUDGMENTS According to La C art 1951 a final judgment may be amended by P the trial court at any time with or without notice on its own motion or on motion of any party 1 To alter the phraseology of the judgment but not the substance or 2 To correct errors of calculation Article 1951 contemplates the correction of a error in a final judgm but does not authorize substantive rical cl nt amendments Bourgeois v Kost 2Q02 La 5 846 So b92 695 2785 03 20 2d The June 17 2009 judgment submitted by counsel for defendants provided the following IT IS ORDERED ADJUDGED AND DECREED that there be judgment herein in favor of Richardson and against the legal successor of Percy May and Farm Bureau in the amount of twenty five thousand and 00 25 plus interest from the date of 100 000 00 judicial demand until Decemb 1 200 in the amount of 1 r 48 11 IT IS FURTHER ORDERED ADJUDGED AND DECREED that there be judgment herein in favor of Richardson and against the legal successors of Percy May in the amount of f4 134 53 plus interest from date of judicial demand until paid z On July 2 2009 the trial court also signed a identical ta the June 25 2009 judgment judgment for which notice of judgment did not issue and from which no party has appealed 3 Defendants filed separate motions for appeal Fann Bureau was granted a suspensive appeal of both the June 17th and the June 25th judgments and the legal successors to Percy May were subsequently granted a devolutive appeal of these sarne judgments as well The sarne attorneys represent all defendants on appeal 0 Although the judgment was certi in accordance with Rule 9 of the Unifortn Rules for ed 5 Louisiana District Courts and Juvenile Courts Richardson objected to the fortn and content of the June 1 2009 judgment 3 v IT IS FURTHER ORDERED AND ADJUDGED DECREED that Farm Bureau pay Richardson costs of court s from date of judicial demand through March 31 2009 subject to a credit of 493 which was deposited into the registry of the court 40 on December 5 2008 and which Richardson has been authorized to withdraw A second judgment submitted by Richardson and signed by the trial court on June a 25 2009 provided for the same total amount of damages But the June 25 2009 judgment differed from the June 17 2009 judgment in that it itemized the amounts of damages as articulated by the trial court in its oral reasons for judgment awarding 12 in past medical expenses 25 in g damages 64 834 00 000 neral and 00 300 40 in lost wages More importantly the June 25 2009 judgment decreed that all defendants were liable for the total sum of 78 F4 134 As long as an amendment to a judgment takes nothing from or adds nothing to the original judgm a final judgment may b amended by the court at any nt time Bourgeois 2d 46 So at 695 However for a trial court to substantively amend a final judgment it must be pursuant to a motion for new trial see Fagan v LebCanc OS La App l st Cir zi i oio 92 So 576 584 or pursuant 184S 2d to a timely appeal See Bourgeois 46 So at 695 2d 1 In the matter before us the June 25 2009 judgment substantively amended the June 17 2Q09 judgment by casting Farm Bureau along with the legal successors of Percy May liable for the entire sum of 78 resulting in an 64 130 increase liability of b4 134 54 for Farm Bureau Since the June 25 2009 5 In the June 25 2009 judgment the written sum of the amount awarded was SEVENTY HLTNDRED THIRTY 100 64 but the numeric representation of that amount was incorrectly stated as 88 64 134 EIGHT THOUSAND ONE Of particular note the insurance policy issued by Farm Bureau to Percy May provided coverage of 25 per person and 50 per accident 000 000 4 judgment was not rendered pursuant a motion for new trial or a timely appeal it is an absolute nullity and of no effect See Bourgeois 846 2d So at 69b Accordingly we vacate the June 25 2009 judgment and in this appeal review only the June 17 2009 judgment LQST WAGES The trial court is accorded broad discretion in assessing awards for lost earnings but there must be a factual basis in the record for the award A plaintiff bears the burden of proving his claim for lost earnings For purposes of determining damages the amount of lost earnings need not be prov with d mathematical certainty but by such proof as reasonably establishes the claim and such proof may consist only of the plaintiff s own testimony Reasonable certainty is the standard Driscoll v Stucker 2004 La l So 32 53 0589 OS 19 893 2d At trial Richardson testified that as a result of the accident he had pain in his neck and back After he was released from the emergency roo at OLOL ri Richardson sought medical treatment from Dr F Allen Johnston who over the course of seven months undertook diagnostic tests and prescribed medication and physical therapy Richardson stated that he underwent physical therapy for about three months and while he experienced some relief as a result of the physical 0 therapy it had not helped enough for him to go back to work He explained that he had been able to obtain relief in his back but the neck pain never fully diminished Even as of the date of trial he continued to have neck pain between three and four times a week Richardson denied that Dr Johnston verbally apprised him that he could return to duty light work after the first office 5 s visit He believed Dr Johnston released him back to work in October 2007 but only for light duty H later identified his medical r showing that he was released to light duty on cord v September 17 2007 At trial Richardson offered a11 of Dr Johnston records in support of his s The records showed that Dr Johnston examined Richardson on six claim occasions over a month seven A section of recommendations in Dr period s Johnston note for the March 15 2007 visit included that Richardson should only return to work with light duty The doctor recommendation stated no more s than 15 pounds of lifting alternating between sitting and standing with a ofposition very 20 minut and stair climbing should be one flight at a time Dr s s Johnston records also showed that as of October 15 2007 Richardson was released to return to work without any physical restrictions Richardson described himself as a laborer at duties included two distinct types of jobs VIP International VIP His One job involved cleaning troughs of acid He explained that after donning an acid suit and safety gear he climbed aloft between 30 and 40 eet put on equipment and went inside a tank where the troughs were located The other job involved catalysts where he and four or five other workers likewise donned safety gear climbed aloft went into a hole and caught rocks with a bucket from a machine that spewed the rocks He stated that the stream of rocks was steady and while he was not sure of the weight of a bucketful of rocks he was certain it was more than 20 pounds According to Richardson to do his duties at VIP as a laborer he had to be 100 because it was an intensely physical job 6 r I change i I v Richardson testified that VIP contacted him about returning to work and he advised the V representativ to whom he spoke that he could only do light duty P After that phone call Richardson decid to call the warehouse manager d work who was the person who assigned advised Richardson that there him in work town were no duty light jobs The warehouse manager Richardson said that he was terminated in May 2007 before he had been medically released to return to work On cross Richardson did not deny that he had spoken with examination r Darrell Sam a VIP dispatcher who allocated jobs that required workers to travel Richardson recalled that at the time he spoke with Sam he advised the dispatcher that his doctor had not yet released him to work He stated that he never told Sam that he could Richardson testified that although VIP only do light duty work attempted to assign him work after his accident no one ever offered him a light duty assignment o Defendants attempted to impeach Richardson testimony with that of s Sam s Sam stated that VIP called Richardson into work after the accide nt a nd r that Richardson told the disp atch he was receiving medical treatment for his injuries expressly advising that his neck was still hurting Sam tes that he ified was the person at VIP who would have assigned light work to an injured duty employee Sam believed that h offered Richardson light work just after the duty accident when VIP called the injured laborer Although he had no specific light duty assignment for Richardson and admitted that he had not reviewed any medical restrictions for Richardson from a doctor Sam believed that VIP offered 7 Richardson an opportunity to do light work because it just normal duty s procedure While the record contains seemingly contradictory accounts of whether VIP offered and Richardson refused light work Richardson testimony is duty s sufficient to establish a factual basis to support an award of lost wages The trier r of fact who was free to believe in whole or part the testimony of any witness see Scoggins v Frederick 98 814 La App 1 st Cir 9 744 So 67b b87 99 24 d writ denied 99 La 3 7S So 1141 clearly believed that of 3557 00 17 2d Richardson stestimony established that his doctor first advised him Richardson he was released to light work in September 2007 which was approximately duty four months after he had been terminated And while Dr Johnston medical s record seemed to suggest that Richardson should have been advised by Dr Johnston of light duty restrictions as of March 2007 that documentary evidence did not so contradict Richardson story and Richardson account of not having s s been apprised of light work restrictions is duty not so rife v rith internal inconsistencies or facial implausibility that it should be removed from the ambit of that which a rfactfinder can credit especially h where Dr Johnston asonable re s testimony explaining his dictated through Dep of Transp t and note was not offered See Stobart v State 2d Dev 617 So 880 882 La 1993 Thus the trial court was not manifestly erroneous in concluding a reasonable factual basis exists for an award of lost wages We additionally find no abuse of discretion by the trial court in awarding 00 300 40 which the parties do not dispute is the amount of the in globo award o 64 134 53 attributable to lost wages 8 Richardson testified that before the 0 accident his weekly gross pay was 1 and that he was unable to work from 00 300 the day of the March 13 Richardson was released to 2007 accident fu11 duty work Dr Johnston record showed that s on October 15 2007 In light of the reasonable factual basis for the lost wages award the trial court did not abuse its discretion in 00 300 awarding 40 which was obviously fashioned the multiplication of Richardson 1300 weekly wages by the 31 w between s 00 eks the accident and the date of Richardson unrestricted work release Accordingly s the trial court was neither manifestly erroneous in permitting an award of lost wages nor abusive of its discr in the quantum of 40 it awarded tion 00 300 r GENERAL DAMAGES The trier of fact is accord much discretion in fixing general damage d awards La C art 2324 Cheramie v Horst 93 La App l st Cir 1 1168 2d 94 20 5 637 So 720 723 The discretion vested in the trier of fact is great even vast so that an appellate court should rarely disturb an award of general damages Youn v Maritime Uverseas Corp 623 So 2d 1257 1261 La 1993 cert denied 510 U 1114 114 S Ct 1059 127 L Ed 2d 379 1994 General S damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty including pain and suffering Wainwright v Fontenot 2000 La 10 774 So 2d 70 74 The role of an appellate 0492 00 17 court in reviewing a general damage award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact Bouquet v WalMart Stores Inc 2008 La 4 979 So 2d 4Sb 0309 08 459 9 a svehicle was struck twice and propelled into a pole He had to Richardson be extricated rom the vehicle He was transported to the hospital in a ambulance and while he was not required to stay overnight he suffered pain in his back and neck He estimat that his level of pain was S on a scale of 1 As a result of d 10 his injuries Richardson sought medical treatment for which he was administered prescriptions for pain and physical therapy He still suffered from pain in his neck as of the date of trial which was two years after the accident Although an award of 25 in general damages for soft tissues injuries to the back and neck 00 000 may be considered by some on the high side it certainly was not an abuse of discretion Accordingly we find no abuse of discretion by the trial court EE DECI For th reasons the judgment signed by the trial court on June 25 2009 is se an absolute nullity and is therefore vacated The judgment signed by the trial court on June 17 2009 is affirmed Appeal costs are assessed against defendants Barbara Guillory May Donna May Hogan and Terri May Wilkes the legal successors of P May and their insurer Farm Bureau Casualty Insurance rcy I ComP anY v JUNE 25 2009 JUDGMENT VACATED JUNE 17 2009 JUDGMENT AFFIRMED 10 V TYRUNE RIC N ARDS STATE UF LOU SIANA URT C OF APPEAL VER5U5 FIRST CiRCUI T tCY PE MAY AND FARM AU BL1RI INSURANCE COMPANY NUMBER 2011 CA 4977 WHIPNL J concurrin in part and dissenting in nart While I a with the majority determination t the June 25 2009 ree s lat judgment is an absolutc nullity and thus concur in the decision to vacate that judgrnent I respectfully disagree with th majority decision to affirm both the s trial i award for general damages and its award For lost wages s ourt With regard to the genei damages award of 25 I kind tha this al UO OOO award for Richards complaints of neck and back pain is itnprope givEn that s n sback pain resolved within thr months oi accident lso while Richardson the he claimed to con to suff n pain he saw Dr Johnston only six times in inue r ck the seven rilonths following the accident Accordingly I believe th the higl t est amount t the trier of fact could have awarded for this particul injury was at r 1S QO OOO Moreover regardin Richardson sclaim for lost wages i would conclude that he roved his entitlement to an award of lost wages for at most ten weeks Given that Richardson weekly wage was 1I would accordingly reduce s 00 0 3 the lost wa award to 13 es 00 qQ0 r Fr thes r asons I respectfully dissent in part
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