Kendra Collins VS Sara Callais; General Insurance Company of America; and State Farm Mutual Automobile Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1020 KENDRA COLLINS VERSUS SARA CALLAIS GENERAL INSURANCE COMPANY OF AMERICA AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY MAY 01 2013 Judgment Rendered APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT C IN kND FOR THE PARISH OF EAST BA ROUGE ON T DOCKET STATE OF LOU NUMBER 566833 SECTION 22 THE HONORABLE TIMOTHY E KELLEY JUDGE Christopher T Cascio Attorney for PlaintiffAppellant Prairieville Louisiana Kendra Collins Brad J Brumfield Attorney for DefendantsAppellees Baton Rouge Louisiana Sara Callais and General Insurance Company of America J QT D j SSrs S SP Pf 7 BEFORE WHIPPLE C KUHN PETTIGREW McDONALD AND J WELCH JJ McDONALD J This appeal concerns an automobile accident that occurred on May 12 2007 On that date Kendra Collins Ms Collins was a back seat passenger in a 1996 Acura driven by her sister Dawn R Collins The owner of the vehicle their mother Esther M Collins was riding in the front passenger seat The Acura was traveling eastbound in the left hand lane of Interstate 12 near the O Lane exit Neal in Gast Baton Rouge Parish at the time of the accident Sara Callais Ms Callais was driving directly behind the Acura in a 2006 BMW owned by Ronnie Callais The Acura slowed down as it approached traffic on the interstate and Ms Callais BMW struck the rear of the Acura The Acura began to spin and struck the retaining wall separating the eastbound and westbound lanes of Interstate 12 Ms Collins was injured in the accident On May 9 2008 Ms Collins Tiled suit against Ms Callais General Insurance Company of America GIC the liability insurer of the Callais vehicle and State Farm Mutual Automobile Insurance Company State Farm the uzidcrinsured i uuinsure motorist insurer for the Collins vehicle asserting that Ms Callais was at fault for the accident Ms Collins asserted that the Acura was damaged in the accident and that she suffered personal injuries including bulging discs lower back injury injury to her right arm and leg and injury to her face Ms Collins asserted that her damages included past physical pain and suffering and mental anguish future physical pain and suffering and mental anguish loss of enjoyment of life permanent disabilities and impairment past and future loss of income impairment of earning capacity and past and future medical expenses State Farm answered the petition generally denying liability to Ms Collins setting forth affirmative defenses and tiling a cross claim against Ms Callais and GIC Ms Callais and GIC tiled an answer to the petition and a request for jury 2 trial generally denying the allegations and asking that the suit be dismissed with prejudice On July 6 2009 State Farm was dismissed from the suit without prejudice with Ms Collins rescriing the right to proceed against the remaining defendants The parties entercd into a joint stipulation agreeing that 1 was paid by 00 878 State Farm to and on behalf of Ms Collins that GIC had paid State Farm 00 878 1in satisfaction of the cross claim filed by State Farm for reimbursement of the medical payments coverage that Ms Callais and TIC were entitled to a credit in the amount of 1 against any judgment or settlement that Ms 00 878 Collins agreed to waive any further claims against State Farm and that State Farm agrecd to dismiss its cross claim Ihe joint stipulation was signed by the district court on December 15 2010 At trial the parties stipulated that Ms Callais was solely at fault for the accident After the trial the jury determined that Ms Collins was injured in the accident and that the fault of Ms Callais was a legal cause of the injuries The jury awarded Ms Collins 510 for past and future physical pain and suffering 0 00 000 for past and future mental pain and suffering 13 for past and future 00 000 medical expenses 1for lost wages and 5 for loss of enjoyment 00 558 00 442 of life for a total of 30 in damages The district court signed a judgment 00 000 in accordance with the jury verdict on October 27 2011 awarding judgment in favor of Ms Collins and against Ms Callais and GIC jointly and in solido for 00 000 30 less a credit due to Ms Callais and GIC in the amount of 1 00 878 Ms Callais and GIC were taxed with judicial interest and costs of court Ms Collins tiled a motion forjudgment notwithstanding the verdict and in the alternative a motion for new trial on the issue of damages and in the alternative a motion for additur asserting that the damages award district court denied the motion 3 was inadequate The Thereafter Ms Collins filed an appeal Ms Collins asserts the following assignments of error on appeal 1 The jury abused its discretion in awarding excessively low quantum for plaintiff spast and future physical pain and suffering appellant when the testimony of plaintiff appellant and the uncontroverted medical testimony presented al trial clearly established that plaintiff appellant sustained bulging discs at the C5 6 and C6 7 levels and that she continued to suffer pain through the date of trial over four years post accident 2 The jury abused its discretion in failing to award plaintiff appellant any sums for past and future mental pain and suffering when the medical evidence clearly established that she suffered from depression as a result of the accident which forms the subject matter of this litigation 3 The jury abused its discretion in failing to award plaintiff appellant the full sum of past medical expenses incurred when the evidence introduced at trial clearly established that said expenses were incurred in the treatment of her injuries sustained in the accident which forms the subject matter of this litigation 4 The jury abused its discretion in ailing to award plaintiff appellant damages for future medical treatment ASSIGNMENTS OF ERROR NOS 3 AND 4 In these assignments of error Ms Collins asserts that the jury erred in failing to award the full sum of her past medical expenses and in failing to award daimiges for future medical treatment In reviewing a jury factual conclusions with regard to special damages an s appellate court must satisfy a two step process based on the record as a whole there must be no reasonable factual basis for the trial court conclusions and the s finding must be clearly wrong Kaiser v nardin 20062092 La 4 953 07 11 d So 802 810 per curiam The district court noted the following at the hearing on the motion for judgment notwithstanding the verdict It was not a big bulge at all and that part ofthe difliculty with s this case and the fact that C will tell you quite candidly as 1 said before the credibility of your client was less than spectacular She was not a credible witness at all and yet you know the jury could 4 have found she just made everything up They didn They analyzed t everything A thorough review of the record shows that the jury apparently did not bclicvc that all of Ms Collins incdical issues were related to the accident Ms Collins was treated for carpal tunnel syndrome and back cornplaints that were not related to the accident We cannot say that there was no reasonable basis for the s jury conclusions nor can we say that the jury finding was clearly wrong s ASSIGNMENT OF ERROR NO 1 In this assignment of error Ms Collins asserts that the jury abused its discretion in awarding 10 for her past and future physical pain and 00 000 suffering an amount she asserts is excessively low Ms Collins asserts that the medical evidence prescutcd at trial established that she sustained bulging discs at the iand C6 7 levels and that she continued to suffer pain through the date of 0 trial over four years after the accident The role of an appellate court in reviewing general damages is not to decide what is an appropriate award but rather to review the exercise of discretion by the trier of fact The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances of the particular injured person is a clear abuse of the much discretion of the trier of fact Youn v Maritime Overseas Corp 623 So 1257 1260 La 1993 cent denied 510 U 1114 2d S 1 14 S 1059 127 l Ct 2d Ld 379 1994 The district court noted that Ms Collins was not a credible witness on her own behalf and we find that the jury determined that all of Ms Collins medical care was not related to the accident The record shows that Ms Collins had numerous health issues unrelated to the accident at issue After a thorough review of the record we cannot say that the jury abused its discretion in awarding Ms Collins 10 for past and future physical pain and suffering 00 000 5 ASSIGN iMI OF ERROR NO 2 N1 In this assignment of error Ms Collins asserts that the jury abused its discretion in failing to award her any Burn for past and future mental pain and suffering Under the facts of this case we find that it was an abuse of discretion for the jury to fail to award any amount to Ms Collins for her past and future mental pain and suffering Ms Collins was injured in a collision that caused her vehicle to hit a concrete barricade on the interstate She was removed from the vehicle by medical personnel and taken to the hospital by ambulance and the jury awarded her 10 for her physical pain and suffering 00 000 We find that the lowest amount that the jury could have awarded for past and future mental pain and suffering under the circumstances is 5 See 00 000 Youn 623 So at 1260 Thus we amend the judgment to award Ms Collins 2d 00 000 55 for her past and future mental pain and suffering DECREE Therefore for the foregoing reasons we amend the judgment of the district courl to award Ms Collins 5 for her past and future mental pain and 00 000 suffering In all other aspects the district courtjudgment dated October 27 2011 is affirmed Ms Callais and CTIC are assessed with the costs of this appeal AMENDED AND AS AMENDED AFFIRMED 6 KENDRA COLLINS FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA SARA CALLAIS ET AL KUHN ap J dissenting in part NO 2012 CA 1020 I respectfully disagree with that portion of the majority opinion concluding that the jury abused its much discretion in denying Ms Collins any damages for mental pain and suffering At trial defense counsel argued during closing arguments that Ms Collins was entitled to such damages because the medical evidence established that she suffered from depression as a result of the accident at issue However the record reveals that serious questions arose at trial regarding the credibility of Ms Collins claim For instance she suffered from a myriad of preexisting health problems unrelated to the accident that the jury could have concluded were the cause of any depression she may have suffered Moreover her own family physician noted that Ms Collins was prone to exaggeration and over dramatization of her symptoms It is noteworthy that in denying her motion for judgment notwithstanding the verdict the trial court observed that Ms Collins credibility was less than spectacular and that she was not a credible witness at all Given the circumstances I agree with the trial court conclusion that the s s jury verdict represented a fair and reasonable interpretation of the evidence based on Ms Collins lack of credibility As noted Ms Collins based her claim of mental pain and suffering on the allegation that the accident caused her to suffer depression Thus the jury refusal to award damages for mental pain and s suffering constituted a rejection of this claim Considering defense counsel closing arguments the jury reasonably could s have concluded that the item of Physical pain and suffering on the verdict form encompassed damages for both physical and mental pain and suffering associated with Ms Collins injuries while the item of Mental pain and suffering encompassed damages for her alleged depression Moreover the 10 the 00 000 jury awarded to Ms Collins for physical pain and suffering was adequate to compensate for both her physical and mental pain and suffering Although arising in a different context several cases have recognized that bodily injury can also include mental anguish and distress See Crabtree v State Farm Insurance Company 93 0509 La 2 632 So 736 744 Motorola Inc 94 28 2d v Associated Indemnity Corporation 02 0716 La App 1st Cir 6 878 04 25 2d So 824 833 writs denied 04 2314 04 2323 042326 042327 La 11 04 19 888 So 207 2d 211 12 In view of this jurisprudence and especially given the evidence regarding Ms Collins tendency to exaggerate and overdramatize the jury reasonably could have concluded that any mental anguish or emotional distress she suffered was subsumed into the award the jury made to her for physical pain and suffering In reviewing the jury determinations this Court must bear in mind that the s factfinder is afforded much discretion because it is in the best position to observe evidence firsthand and evaluate witness credibility 2d Stores Inc 08 0309 La 4 979 So 456 08 See Bouquet v Wal Mart 459 Based on its obvious factual findings and credibility determinations a reasonable basis existed for the s jury verdict Therefore the record does not establish that the jury abused its great discretion in rejecting Ms Collins claim that she was entitled to damages for mental pain and suffering due to her depression By amending the trial court judgment to award Ms Collins damages for mental pain and suffering the majority is substituting its own evaluation of the evidence and credibility 2 determinations for those of the jury Accordingly I dissent from that portion of the majority opinion 3
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