Bridget Gilmore VS Allstate Insurance Company, Geico Indemnity Company, Kimberly Fumar and William Gilmore (2013CA0220 Consolidated With 2013CA0221)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2013 CA 0220 BRIDGF.T GILMORE VERSUS ALLSTATE INSiJRANCE COMPANY, GEICO INDEMNITY COMPANY, KIMBERLY FUMAR and WILLIAM GILMORE consolidated with 2i( NO. 2013 CA 0221 WILLIAM GILMORE VERSUS ALLSTATE INSURANCE COMPANY, GEICO INDEMNITY COMPANY and KIMBERLY FUMAR JudgmentRendered: DEC 2 2 On Appeal from 22nd Judicial District Court, In and for St. Tammany Parish, State of Louisiana Trial Court No. 2010- 11107 c/ w 2010- 12742 The Honorable Reginald T. Badeaux, III, Judge Presiding David H. Attorney for Appellants, Allstate Ins. Co. & Kimberly Fumar Kennedy Metairie, Louisiana Jesse L. Jesse L. Wimberly, Wimberly, III Attorneys for Appellee, IV Bridget Gilmore Mandeville, Louisiana Shawn Rogers Attorney for Appellee, Mandeville, Louisiana William Gilmore Alejandro Cobar Attorney far Appellee, Geico Indemnity Company Metairie, Louisiana BEFORE: WHIPPLE, C. J., WELCH, AND CRAIN, JJ. CRAIN, J. Kimberly Fumarl and Allstate Insurance Company appeal a judgment of the trial court in favor of Bridget Gilmore and William Gilmore, challenging both the trial court' s liability determination and the amount of damages awarded. Bridget Gilmore has answered the appeal seeking to have the amount of damages awarded to her increased. We affirm. FACTS This litigation stems from a motorcycle/ vehicle collision that occurred during the early aftemoon of October 17, 2009, at the intersection of Highway 59 and Florence Road in St. Tammany Parish. That portion of Highway 59 consists of a northbound lane and a southbound lane divided by a center turn lane, with drainage ditches along each side of the roadway. William Gilmore was driving his Harley Davidson motorcycle with his wife, Bridget, riding behind him as his passenger. The Gilmores were traveling southbound on Highway 59 behind a 2008 Chrysler Pacifica driven by Kimberly Fumar. As Fumar turned right onto Florence Road, the motorcycle collided with Fumar' s vehicle. Both William and Bridget Gilmore were injured. William and Bridget Gilmore each filed suits for damages against Fumar and her insurer, Allstate. They also sued their own uninsured motorist insurer, Geico Indemnity Company. Additionally, Bridget Gilmore named William Gilmore and his liability insurer (also Geico) as defendants, but later dismissed her claims against William Gilmare. The suits were consolidated and proceeded to a bench trial, with both plaintiffs stipulating that their damages did not exceed $ 50, 000.00. The trial court accepted the Gilmores' account of the accident and found Fumar to 1 Kimberly Fumaz testified at trial that she is now lmown as Kimberly Armond. However, she is refened to herein as Fumar, as she was identified in pleadings and the trial court' s judgment. 2 be one hundred percent at fault in causing the accident. The trial court awarded Bridget Gilmore damages in the amount of $ 44, 750. 29, and William Gilmore damages in the amount of $18, 918. 79. Fumar and Allstate now appeal. Bridget Gilmore has answered the appeal, seeking to have the damages awarded to her increased to $ 49, 750. 29, to conform to the trial court' s written reasons for judgment. LIABILITY Fumar contends the trial court erred ( 1) in failing to apply the presumption of fault attributable to a rear- ending motorist to William Gilmore, ( 2) in finding Fumar at fault in causing the accident, and ( 3) in failing to assign any fault to William Gilmore. As with other factual determinations, the fact finder is vested with much discretion in its allocation of fault. An appellate court should only disturb the fact finder' s allocation of fault when it is clearly wrong or manifestly erroneous. See Hebert v. Rapides Parish Police Jury, 06- 2001, 06- 2164 ( La. 4/ ll/07), 974 So. 2d 635, 654- 56 ( on rehearing). Where two or more permissible views of the evidence exist, the fact finder' s choice between them cannot be manifestly erroneous or clearly wrong. See Walley v. Yargas, 12- 0022 ( La. App. 1 Cir. 9/ 2U12), 104 So. 3d 93, 112; Wainwright v. Leary, 623 So. 2d 233, 237 ( La. App. 2 Cir.), writ denied, 629 So. 2d 1127 ( La. 1993). Liability under the particular facts of a case is determined by the duty- risk analysis, which requires the plaintiff to prove ( 1) the defendant had a duty to conform her conform her substandard conduct conduct conduct to a specific standard to the appropriate was cause- a of care, ( standard in-fact of the 2) the defendant failed to of care, ( 3) plaintiff' s the defendant' s injuries, ( 4) the defendant' s substandard conduct was a legal cause of the plaintiff' s injuries, and 5) actual damages. Brewer v. J. Hunt Transport, Inc., 09- 1408 ( La. 3/ 16/ 10), 35 B. 3 So. 3d 230, 240. If the plaintiff fails to establxsh any one of these elements, his claims must fail and he cannot recover. Bellanger v. Webre, 10- 0720 ( La. App. 1 Cir. 5/ 6/ 11), 65 So. 3d 201, 207, writ denied, 11- 1171 ( La, 9/ 16/ 11), 69 So. 3d 1149. All motorists owe a general duty to observe what should be observed. Mart v. Hill, 505 So. 2d 1120, 1123 ( La. 1987). Additional duties arise depending on the motorist' s movements on the roadway in relation to other vehicles. A motorist making a right turn has a duty to make the turn as close as practicable to the righthand curb or edge of the roadway. La. R.S. 32: 101. Additionally, the right-turning motorist has a duty to make the turn only when her vehicle is properly positioned and the movement can be made with reasonable safety. La. R. S. 32: 104A. Further, the right-turning motarist must signal the intention to turn for not less than one hundred feet before turning. La. R.S. 32: 104B. A motorist following behind another vehicle has a duty not to follow the leading 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. La. R. S. presumed 32: 81A. A following motorist who collides with a leading vehicle is to have breached this duty. Brewer, 35 So. 3d at 241. The following motorist may rebut the presumption of fault by establishing that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance under the circumstances. Anderson v. May, 01- 1031 ( La. App. 5 Cir. 2/ 13/ 02), 812 So. 2d 81, 85. Additionally, if the following motorist establishes that he was suddenly confronted with an unanticipated hazard created by the lead vehicle that could not reasonably be avoided ( a sudden emergency), then he will be adjudged free from fault for the ensuing rear- end collision. Anderson, 812 So. 2d at 86; see also Brewer, 35 So. 3d at 241. However, the rule of sudden emergency cannot be invoked by one who has not used due care to avoid the emergency. Anderson, 812 4 So. 2d at 86. The following motarist must exonerate himself from fault before he can completely avoid liability. Matherne v. Lorraine, 03- 2369 ( La. App. 1 Cir. 9/ 17/ 04), 888 So. 2d 244, 246. William Gilmore testified that he was cautiously following the Fumar vehicle on Highway 59, keeping further back than normal because of lumber protruding from the rear ef the Fumar vehicle? He stated that he minded the Fumar vehicle' s speed to keep from gaining on it He explained that as they approached Florence Road, Fumar activated her left turn signal and moved her vehicle into the center turn lane, as if to turn left into the parking lot of the adjacent strip mall. Bridget Gilmore similarly testified that the Fumar vehicle signaled a left turn and moved into the center turn lane. As the motorcycle proceeded forward in the southbound lane, the Fumar vehicle suddenly turned to the right, in front of the Gilmores, toward Flarence Road. William Gilmore testified that he took the only evasive action he could, which was applying the front and rear brakes, but was unable to avoid colliding with the rear quarter panel of the Fumar vehicle, between its rear- wheel and bumper. The Gilmores' friends, the Ledets, were riding their motorcycle with the Gilmores and wimessed the accident. Lester Ledet testified that he was driving his motorcycle behind the Gilmores, with his wife, Kathy, riding as a passenger. Lester Ledet stated that the Fumar vehicle activated its left turn signal and moved left into the center turn lane, then turned to the right in front of the Gilmores. Kathy Ledet testified that she did not pay attention to the turn signal of the Fumar vehicle, but did see it move into the center turn lane and believed it was turning to the left. She testified that she was surprised to see it turn to the right. 2 It is undisputed that the lumber was appropriately marked with a red flag and was cleazly visible to Gilmore. It is not alleged that the ltunber caused the accident. 5 In contrast, Fumar contends that Gilmore simply rear- ended her as she was turning onto Florence road. Fumar testified that she and her then- husband were returning home with a small load of lumber and that she was aware of the following motorcyclists, having seen them in her rear-view mirror. She explained that she activated her right turn signal as she approached Florence Road, which was the only road from which to enter her subdivision, and proceeded to turn right. She denied activating her left turn signal, moving to the center turn lane, ar making a wide right turn. She testified that the motorcycle struck the rear of her vehicle as the right turn was nearly completed. Adam Fumar, her guest passenger at the time of the accident, corroborated her account. The trial court found that all of the vehicles were traveling at a lawful speed and in a lawful manner. However, it credited the testimony of the Gilmores and Lester Ledet over that of the Fumars and found that the Fumar vehicle signaled a left turn. The trial court also credited the testimony of the Gilmores and the Ledets over that of the Fumars and found that the Fumar vehicle moved into the center lane before making what was effectively a wide right turn onto Flarence Road. The trial court determined that the Fumar vehicle created a sudden emergency, explaining: The right-hand tum made by the [ Fumar vehicle] put William Gilmare in a difficult position: to his left was the lumber jutting from the rear of the [ Fumar vehicle]; to his right was a drainage ditch which dropped off steeply. While not exactly " between the devil and the deep blue sea," his available choices were not much better. The only place left for him to go was forward, standing hard on his brakes. Just before impacting the Fumar vehicle, Mr. Gilmore' s motorcycle pitched onto the road; and then his front wheel struck the rear quarter panel of the Fumar vehicle. Where a fact finder' s determination is based on its decision to credit the testimony of one witness over another, that finding can virtually never be manifestly erroneous ar clearly wrong unless objective evidence so contradicts the witness' s story, ar the story itself is so internally inconsistent or implausible on its 6 face, that a reasonable fact finder would not credit the witness' s story. Ryan v. Zurich American Ins. Co., 07- 2312 ( La. 7/ 1/ 08), 988 So. 2d 214, 222; Graffia v. Louisiana Farm Bureau Cas. Ins. Co., 08- 1480 ( La. App. 1 Cir. 2/ 13/ 09), 6 So. 3d 270, 275. Fumar argues on appeal that physical evidence refutes the Gilmores' account and supports her version of wh.at took place:. Louisiana investigated the State Trooper Jeremiah Bell responded to the scene and He testified that when he arrived, he observed a accident. motorcycle on its left side in the southbound lane of Highway 59 at the intersection with Florence Road. vehicle. right He photographed the scene and the damage to the Fumar The photographs depict scuff marks on the Fumar vehicle between the rear bumper and right rear tire. Additional photographs taken after the motorcycle was moved from the roadway indicate that the motarcycle' s gas tank came to rest to the right side of the southbound lane. Trooper Bell, who was not qualified as an expert, interpreted the scuff marks to mean that the motorcycle impacted the right rear corner of the Fumar vehicle as it was turning then traveled up along side of it. He did not see evidence that would indicate a perpendicular impact. However, Trooper Bell also testified that he did not witness the accident and could not determine from the skid marks on the street exactly where the Fumar vehicle was impacted. Further, Trooper Bell did not know whether the same evidence would result if the accident happened as the Gilmores described, with Fumar making a wide right turn and the motorcycle striking her vehicle at an angle. The objective evidence does not contradict the Gilmores' story so as to render it implausible. Considering the foregoing, we fmd no manifest error in the trial court' s determination that Fumar was at fault for creating a sudden emergency that caused the Gilmores' motorcycle to collide with her vehicle. We likewise find no merit to the defendants' contention that the trial court erred in failing to apply the presumption of fault attributable to a rear- ending The trial court' s motorist. conclusion that Fumar was one hundred perc nt at fault in causing the accident is reasonably supported by the recqrd and will not be disturbed. Cf. Duncan v. Kansas City Southe n Railway Co.; 00- 0064 ( La. 10/ 30/ 00), 773 So. 2d 670, 680, cert. dismissed, 532 L'.S. 992, 121 S. Ct. 1651, 149 L,. Ed. 2d 508 ( 2001). DAMAGES The trial court' s judgment awards damages to William Gilmore in the amount of $18, 918. 79, and to Bridget Gilmore in the amount of $44, 750.29. On appeal, Fumar challenges elements of those awards, as itemized in the trial court' s written reasons far judgment. However, the judgment at issue sets forth an in globo award far each that is not itemized. Appeals are taken from judgments not written reasons for judgment. Wooley v. Lucksinger, 09- 0571 ( La. 4/ 1/ 11), 61 So. 3d 507, 572. Written reasons serve as an explication of the trial court' s determinations, but do not alter, amend, or affect the final judgment being appealed. Id. The trial court is not required to itemize the damages it awards, and does not err in awarding damages in globo. See Gray v. Holiday Inns, Inc., 991292 ( La. App. 1 Cir. 6/ 23/ 00), 762 So. 2d 1172, 1176; Smith v. Travelers Indem. Co. of Rhode Island, 374 So. 2d 708, 712 ( La. App. 1 Cir. 1 979). Accordingly, we review each of the in globo awards as a total award to each plaintiff, considering Fumar' s challenges to specific elements of those awards as challenging the total awards as abusively high. Judgments awarding damages in globo are normally presumed to award all items of damages claimed. See Valentine v. Wells, 540 So. 2d 344, 345- 46 ( La. App. 1 Cir. 1988), writ denied, 546 So. 2d 178 ( La. 1989). Both William and Bridget Gilmore sought damages including ( 1) medical bills, (2) past, present, and future physical pain and suffering, ( 3) past, present, and future emotional pain and suffering, ( 4) ecomonic loss, ( 5) diminution of earning capacity, and ( 6) loss of s life. of enjoyment Thus, the in awards gloha Wil iam and Bridget Gilmore t presumably in lude t ese genexa,l and s; eial c ainages. General damages are in± ended to co. mpensate a injured plaintiff far mental or physical pain and rafferi: g, inconvenience, loss of gratification or intellectual or physical enjc ym nt, or. other lasses af lxff stj-l ths t can not b mea ur d definitely in terms of ee T6 n. sr v zrh i money: ' 5/ 7/ 10), 40 So. 3d 989, lOUP, Mental anguish is a writ recognized a` h xn yder, 09- 146? f, -a. App. 1 Cir. L denied, 1G 12y5 {, a. 4/ 24I10), 45 So. 3d 1074. ca mponent of a general damages award. See Duncan, 773 Sa 2d at 682. The trier of fact is accorded great discretion in assessing general damages, such that 2324. 1; its award Guillory v. Maritime Overseas should rarely be disturbed on_ appeal. La. Civ. Code art. Lee, 09- 0075 ( La. 6/ 26,'09), 16 So. 3d 1104, 1117; Youn v. Corp., 623 So. 2d 1257, 1261 ( La. 1993), cert. denied, 510 U. S. 1114, 114 S. Ct. 1059, 127 L.Ed. 2d 379 ( 19 4). There is no mechanical rule for calculating general damages, and reasanable persons frequently disagree about their measure : n a particular case. See Youm; 623 So. 2d at 126I; Stockst ll v. C.F. Industries, Ine.; 94- 2Q72 { La. App. i Cir. i2.15/ 95), 66S So. 2d 802, 817, wrtt denied, 96- 0149 ( La. 3/ 15/ 96); 669 Sa 2d 42, ' reviewing general damages As not tr decid award, but Wainwright rather v. to review th Fontenot, QO- 0492 (, he role of aaa appellate court in vhat it consic ers to be an appropriate xercise of discretion by the trier of facx. a. 101i7IG0), 774 So, 2d 70, 74. It is only when the award is ] ess or more than a reasonab[ e trier of fact cvuld assess for the effects of the particular injury to the particular plaintiff that an appellate court should alter the award. Youn, 623 So. 2d at 1261. Additionally, a plaintiff may ordinariiy recover reasonable medical expenses incuzred as a result oi an inyury. Mack v. Wiley, 07- 2344 ( La. App. l Cir. 5%2/ 08), 991 So. 2d 479, 489, writ ci'enied, 08- 1181 ( La. 9/ 19/ 08), 992 So. 2d 932. Past 9 medical expenses are specl.a: damages that are capable of being determined with reasonable mathematical c rta nty and, as su4ka, rr ust be proven by the person seeking them by a derance prepor. of the evidence. Id. When claims for the accrued medical expenses ar sup o- t d by med% bills, these expenses should be cal awarded unless bills is Yherz are unrelated con ra?.:, Tor; I. to the accident. evidence ar r asonable As zza th us icion that the ase of general damages, a fact finder is afforded great discretion i: its assessmen of a uantum of special damages. Travis v. Spitale' s Bar; Inc., 12- 1366 ( La. 1 Cir. 8/ 14/ 13), _ App: So. 3d In consideration of these legal principles, we now review the in globo awards made to each plaintiff to determine if the triai court abused its discretion. William Gilmore The trial court awarded William Gilmore damages totaling $ 18, 918. 79. With regard to his other damages, the trial court explained: Immediately after the accident, Mr. Gilmore lay pinned beneath the motorcycle for some five minutes before he was freed. During that time he saw people gathered around his unconscious wiie. When he was able to reach her side he saw that she looked " not right." He accompanied her in the ambulance ta the hospital, fearing for her safety, As for his own inju ies, he suffered head trauma and ligament damage to his foot. While the head Yrauma has resohred, the ligament damage lingers, giving him shooting pains almost daily. Mr. Gilmare' s medical expe7ses totaled $ 3, 918.79. Both the Gilmores testified that motorcycling and related activities were the' main focus of their leisure and social hours. Now Mrs. Gilmore is frightened of motorcycle riding, and the couple' s attendance at motorcycle rallies has skarply dropped of£ The trial court' s summation of W'illiam Gjlmare' s injaries, continued pain, and the effects of the accident on his lifestyle, is supported by Yhe record. It is undisputed that h s medical expenses totaled $ 3, 918. 79. Considerin this, we do not find that the total damage award of$ I8, 91&. 79, is mare than a reasonable trier o of fact could assess for the effects of this parkx, ular accident and injury to William Gilmore. Accord'zn ly, w w% ntit d:stur+ tlae awsrd. il Bridget Gilmore The trial court award d Brz lget Gilmcre damages totaling $4, 750.29. After careful conside ratbon, we find that this aznoun ia supported by the r:izdieal records, the depositi n of I)r. Kevir_ Plai anee, arid the testimony adduced ax +_ ial regarding r Bridget Gilmore' s injuries. The trial court explained in its vritten reasons: Bridget Gilmore' s injuries were xnore severe [ than William Gilmore' s injuries]. She was thrown from the motorcycle in the accident and remembers coming to at the hospitaL She suffered a severe concussion with approximately 30 minutes of unconsciousness, a torn chest muscle, a bruised left hip and tenderness in her neck in addition to various other contusions and bruises. She suffered much pain initially for more than a week, enough to make her nauseous, and she could not think clearly. She went to her family physician, Dr. Kevin Plaisance. Dr. Plaisance treated her both before and after the accident. He testified in his deposition that she had no physical complaints prior to the accident, buf that afterwards she reported tenderness on her left chest wall and left hip pain. It was his opinion that her problems, including her imental acuiry deficiencies from the concussion, were all caused by the accident. He treated her with overthe- counter anti- inflammatory medications, prescribed use of a TENS unit and ultrasound treatment, and sent her to physical therapy. With the physical therapists, Mrs. Gilmore treated far some sixteen noncontinuous weeks, returning to therapy as th., pain recurred. . . . Mrs. Gilmare testified that she feels she is not fully recovered. She is unable to exercise as much s she has in the past; this problem is aggravated by the fact that she is b profess?on a teacher of health and fitness. She finds that she can no longer show studenYs how to exercise. Her neck remains stiff, and she complains of ixritability and sleeplessness. . . . Both the Gilmores testified thai motarcycling and related activities were the main foc s of their leisure and social hours. Now Mrs. Gilmore is frightened of motorcycle riding, and the couple' s attendance at motorcycle rallies has sharply dropped off. After reviewing the record herein, we find no basis for reducing the damages awarded to Bridget Gilmore as Fumar asks. 11 ANSWER TO APPEAL Bridget Gilmore has answ r. d this a, pea1, pcabnting oui that the judgment' s in globo award to her of$ 44, 750. 29 is $ 5, 40. Q less than the total of the amounts itemized in the txial court' s amended ta written reasons. Shs requests that the judgment be rd her $49;75C1 9 in cc nfarmity with the vritter. rea ons for a judgment. Appellate courts review judgments, nc Y vvritten reasons for judgment. Wooley v. Lucksinger, 09- 0571 ( La. 4/ lil l), 61 So. 3d 507, 572; see also La. Code Civ. Pra art. 1918. The reasons, whether oral or written, form no part of the judgment, serving only as an explication of the trial court' s determinations. Wooley, 61 So. 3d at 572. The reasons do not alter, amend, or affect the final judgment that is before the appellate court on appeal. See Id. Mrs. Gilmore references Louisiana Code of Civil Procedure article 1951, which provides for the amendment of a fnal judgment by the trial caurt to alter the phraseology but not the substance of the judgment, or to correct an error of calculation.3 Although Article 1951 authorizes conection of clerical errors, it does not authorize substantive amendrr ents to the judgment. Derton v. State Farnz Mut. Auto. Ins. Co., 08- U483 ( La. 12/ 12/08), 99$ So. 2d 48, 52. Substantive amendments are not autkioriz d by Article 19S 1, even if the alteration is made merely to express the trial court' s actual intention. McGee v. Wilkinson, 03- 1178 La. App. 1 Cir. 4/ 2/ 04), $ 78 Sa 2d 552, 554. For correction of a substantive error in a judgment, recourse must be had through a tamely application for new trial or a timely appeal. H bert v: HEbert, 351 So. 2d 11-99, 1200 ( La. 19? 7). On appeal, the alleged error of the trial court ivould be subject to the appropriate standard of 3 Since this appeal was taken, Article 1951 was amended by 2t713 Acts La. Acts, 1Vo. 78, 1, a d now requires a hearing before a finai ju gment is amended, uriless all parties consent or no opposition to the amendment is filed ai'ter notice of the requested amendment. 12 appellaRe review, ons quant}, ti,.et i.er iFc. alle ed erz°or can sim+ly b co°rected, or must be review d und r. l:a; app l te r si w staa dard, tums can whether the error is clerical or substantive An arinendrz ent affects the substanc; McGee, ta a iudgzr. of the 878 So. 2d at SS4. nt that adds to, sub ra ts frorn, r in any way ud nieat, is c a a.sidered a substaniive amendment. I ntrast; cPerical errors9 including enors of calculation, leave no room for the exarcise of` any judicial function. See State v. F.B. Willianas Cypress Co., 61 So. 988, 994 ( La. 1913) ( explaining, " as the fact that apples fall to, and not from, the earth is established beyond judicial interference, so the facts that 2 + 2 = 4 and that a smaller number subtracted from a larger one leaves a certain, Ammutable res ainder, the amount of which may be ascertained by the use of a mechanical deviee."). We find that adding $ 5, 000. 00 to the zn gdobo damage award involves a substantive change in the judgznent, The judgrnent on appeal does not contain the calculation that is allegedly erroneous; rather, ±he written reasons for judgment differ from the in globo damages award staYed in the signed judgment. We cannot conclude as a matter of immutable fact, and without resorting to the exercise of judicial discretion and i terpretatican, that the f:r_ court intended to award ial 5, 000. 00 more than was xnci= aded in judgment cannot simply be amende e iligned judgment, Accordingly, the 4o confonn to the ivritten reasons as Nlrs. Gilmore requests. Having detet- ined tkiat tfl: e raq aes ed relief w-onld resuit in a substantive m amendment to the judgmen.t, the damage awarci can be modified only after a determinataon that the trial coixrt abused its discr, tion in award?ng 1vlrs. Gilmore damages in the amount of $449750. 29. Ccansxdering Mrs. Gilmore' s argutnent as challenging the trial court' s damage award as being abusively low, we have already determineci herein that the trial court' s in globo damage award of 13 44,750. 29 to Mrs_ Gilmore is supported by fhe medical records, the deposition of Dr. Kevin Plaisance, and t'tie t stzmony adducec at trial regar ing Mrs. Gilmore' s injuries. Therefare, we cannot conc:lude that th trial court abused its discretion in rendering judgment awardin4 th t amount, daspite ii being $S, OQO. 00 less than was set forth. in the Lastly, rit4en reas ns. we reco nize tha und. r. t ae authcsrity granted by L isiana Code of Civil Procedure article 2164, the " appeilate court shall xender any judgmenL which is just, legal, and proper upon the record on appeal." Comment ( a) to Article 2164 confirms the breadth of our authority by declaring that the " purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point was made, argued or passed on by the court below." Nonetheless, because the judgment does not reflect a clerical enor, and because we do not find that the trial court abused its discretion in making the in globo damage award, we do not find that the amendment is warranted pursuant to the authority of Article 2164. CONCLUSION Far the rea ons set forth, the judgmer_ of the trial cour is af rmed. t The relief requested in the answer to appeal is deni d. Cests af this appea are assessed to Kimberly Fumar and Allstate Insurance Company. AFFII2MED. 1R

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