Frederick Franklin VS AIG Casualty Company, CRST, Inc. and Orlando Stanley (2013CA0226 Consolidated With 2013CA0227)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT il V D NO 2013 CA 0226 FREDRICK FRANKLIN VERSUS AIG CASUALTY COMPANY CRST INC AND ORLANDO STANLEY CONSOLIDATED WITH NO 2013 CA 0227 OLD REPUBLIC LIFE 1NSURANCE COMPANY VERSUS CRST VAN EXPEDITED INC ORLANDO L STANLEY AND AIG INSURANCE COMPANY Judgment Rendered UN 7 2 3 On Appeal from the 21 st 7udicial District Court In and for the Parish ofLivingston State of Louisiana Trial Court No 125466 Consolidated With Trial Court No 125873 Honorable Ernest G Drake 7r Judge Presiding x Steven A DeBosier Jill LeBlanc Attorneys for Plaintiff Appellee Fredrick Franklin Brady Baton Rouge LA i1 1 J s c ss fi f pw c S J Michael H Rubin Jamie D Seymour Brook L Thibodeaux Attorneys for Defendants Appellants CRST International Inc Orlando Stanley and New Hampshire Insurance Company Baton Rouge LA Paul A Eckert New Orleans LA Willie G Johnson Jr Rouge LA Attorney for Plaintiff Appellee Intervenor Baton Old Republic Life Insurance Company z BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J 2 HIGGINBOTHAM J In this action for personal injury damages arising out of a collision between the tractor portions of two eighteen trucks at a truck cab wheeler stop parking lot the parties appeal a final judgment rendered in accordance with a jury verdict in favor ofplairitiff Fredrick D Franklin For the reasons that follow we affirm the judgment of the trial court FACTS AND PROCEDURAL HISTORY Just after noon on Sunday October 12 2008 plaintiff Fredrick D Franklin was sitting in his tractor rig at the Pilot Travel Center parking trailer lot in Denham Springs Louisiana He was waiting in a line of trucks that were ready to exit the truck stop parking lot At the same time another truck driver Orlando L Stanley while in the course and scope of his employment with CRST Intemational Inc CRST was operating his tractor rig trailer in the same parking lot Mr Stanley rig somehow rolled out of its parked s position and collided with the tractor portion of Mr Franklids rig collision injured Mr Franklin neck and lower back s The As a result of his injuries Mr Franklin underwent two back surgeries for herniated discs His 1 On November 12 2009 two cases arising out of the accident at issue were consolidated in the 21 st Judicial District Court in Livingston Parish Fredrick Franklin v AIG CasuaZry Company CRST Inc and Orlando Stanley Trial Court Number 125466 was consolidated with Old Republic Life Insurance Company v CRST Van Ezpedited Inc Orlando L Stanley and AIG Insurance Company Trial Court Number 125873 Tlus court declined to consolidate three appeals that arose out of these related matters howevex the appeals were all assigned to the same panel for consideration on the same docket See Franklin v AIG Casualty Company 2012 c 2012 2013 c 2013 1698 w 1699 0069 w 0070 and 2013 c 2013 La App lst Cir 2 0226 w 0227 unpublished 13 15 order This particular appeal Franklin v AIG Casualty Company 2013 c 2013 La 0226 w 0227 App lst Cir 6 hereafter refened to as Franklin 3 concerns the personal injury 13 7 damage amounts awazded by the jury after a trial regazding quantum issues 3 treating physician Dr Huraldo J Villalobos indicates that a third back surgery may be required in the future Mr Franklin filed a personal injury action against defendants Mr Stanley CRST and New Hampshire Insurance Company hereafter collectively referred to as Chartis On 7u1y 2012 a jury trial was 18 17 held on the sole issue of quantum for Mr Franklin damages since the issues s of liability causation employee status insurance coverage and subrogation rights were all resolved by summary judgments signed two days before trial After presentation of evidence testimony and argument to the jury the jury ruled in favor ofMr Franklin awarding the following damages Physical Pain and Suffering Future Physical Pain and Suffering Past Medical Expenses Future Medical Expenses Past Past Lost Wages Future Lost Wages Loss of Earning Capacity Past Mental Anguish Future Mental Anguish Loss of Enjoyment of Life OOOAO 150 00 400 250 10 079 122 00 000 100 00 000 200 00 000 300 00 000 75 00 000 55 00 000 55 00 000 250 10 079 557 1 TOTAL 2 One day before trial on July 16 2012 the trial court signed a summazy judgment finding that 1 Mr Stanley was acting within the course and scope of his employment with CRST at the rime of the accident 2 Mr Stanley was 100 at fault for causing the accident 3 the accident was the sole and pxoximate cause of Mr Franklin injuries and s his subsequent medical treatment including the recommended future treatment and 4 s CRST liability insurer New Hampshire Insurance Company provided insurance coverage for the negligent conduct of CRST employee Mr Stanley We affirmed the s summary judgment on the liability causation employxnent status and insurance coverage issues in a separate opinion rendered this day in a related appeal See Franklin v AIG Casualty Company 2013 c 2013 La App lst Cir 6 0069 w 0070 unpublished 13 7 Franklin 2 We also affirmed a second summary judgment signed by the trial court on 7uly 16 2012 allowing Mr Franklin occupational accident insurer Old s intervenor Republic Life Insurance Company to recover on a subrogated claim for medical expenses and disability benefits paid to or on behalf of Mr Franklin as a result of the accident See Franklin v AIG Casualty Company 2012 c 2012 La App lst Cix 1698 w 1699 unpublished 13 7 6 Franklin 1 3 Initially Mr Franklin petition incorrectly refened to CRST insurer as AIG Casualty s s Company 4 The trial court rendered judgment in accordance with the jury verdict s and a final judgment was signed on August 3 2012 Chartis moved for and was granted a suspensive appeal from the final judgment urging that the jury erred by awarding 200 for past lost wages 300 for future 00 000 00 000 lost wages and 75 for loss of earning capacity all without sufficient 00 000 record evidence to support such awards Mr Fredrick answered this appeal seeking an increase in the damages awarded by the jury for past physical pain and suffering future medical expenses past lost wages future lost wages and loss of earning capacity LAW AND DISCUSSION In Guillory v Lee 2009 La 6 16 So3d 1104 ll 16 the 0075 09 26 Louisiana Supreme Court reiterated well law that a jury is given great settled discretion in its assessment of quantum for both general and special damages Further the jury assessment of quantum or the appropriate amount of s damages is a determination of fact and is entitled to great deference on review Id Because the discretion vested in the trier of fact is so great and even vast an appellate court should rarely disturb a damages award on review Id at 1117 In reviewing a general damages award that cannot be fixed with pecuniary exactitude such as pain and suffering or loss of enjoyment of life the role of an appellate court is to review the exercise of discretion by the trier of fact rather than deciding what it considers to be an appropriate award See Id The Supreme Court has long held true to the following principle 4 As previously noted we affirmed the summazy judgments rendered prior to trial in the other two related appeals in Franklin 1 and Franklin 2 thus any issues other than quanhun for the damage awazds aze not a part of this appeal in Franklin 3 5 before a Court of Appeal can disturb an award made by a factfinder the record must clearly reveal that the trier of fact abused its discretion in making its award Only after malcing the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award and then only to the e of lowering it or raising it to the highest ent or lowest point which is reasonably within the discretion afforded that court Wainwright v Fontenot 2000 La 10 774 So 70 74 0492 00 17 2d uaotin Coco v Winston Indus Inc 341 Sa2d 332 335 La 1977 internal citations omitted Additionally reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are as reasonable Rosell v ESCO 549 So 840 844 La 1989 Where there 2d are two permissible views of the evidence the factfinder choice between s them cannot be manifestly erroneous or clearly wrong Id An appellate court must be cautious not to re the evidence or to substitute its own weigh factual findings just because it would have decided the case differently Perkins v Entergy Corp 2000 La 3 782 So 606 612 1372 O1 23 2d Reasonable persons frequently disagree about the measure of damages in a particular case Guillory 16 So at 1117 It is only when the award is in 3d either direction beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award Youn v Maritime Overseas Corp 623 So 1257 1261 La 2d 1993 cert denied 510 U 1114 114 S 1059 127 L 379 1994 S Ct 2d Ed As for special damages such as medical expenses and lost wages that have a market value the amount of damages theoretically may be ready 6 determined with relative certainty Guillory 16 So at 1117 An 3d 1118 appellate court must satisfy a two process based on the record as a whole step when reviewing a jury factual conclusions regarding special damages by s determining that 1 there is o reasona faetual basis for the jury le s conclusions and 2 the finding rnust be clearly wrong Id at 1118 With these principles in mind we review the evidence in the record to determine if the jury special and general damages awards were contrary to s the evidence contained in the recard and were clearly wrong or constituted an abuse of discretion We also note that when opinions of expert witnesses differ it is for the trier of fact to determine the most credible evidence and the jury determinations will not be overturned unless it is proven that the s s expert stated reasons are patently unsound Brown v City of Madisonville 2007 La App lst Cir 11 5 So 874 881 writ 2104 08 24 3d denied 2008 La 2 1 So 498 2987 09 20 3d Past and Future Lost Wa es Chartis assigns error c that the jury awards fox past ntending s 00 000 200 and future 300 lost wages awarded to Mr Franklin were abusively high Mr Franklin on the other hand maintains that those awards were abusively low A plaintiff seeking damages for lost wages bears the burden of proving lost earnings as well as the duration of time missed from wark due to the accident Brown 5 So3d at 887 The jury has broad discretion in assessing awards for lost wages but there must be a factual basis in the record for the award Id Where there is no basis for a precise mathematical calculation of a lost wage claim the trier of fact can award a reasonable amount of damages without abusing its discretion Id 7 At the time ofthe accident Mr Franklin was 55 years old and was self employed as a truck driver After retirixig from working over ten years in food service management for the United States Arrs Mr Franklin worked y for the next 20 years as a truck driver sQmetimes working far trucking companies and sometimes work as ar indepencient owner When rng operator the accident occurred Mr Franklin was operating a 1996 Western Star trailer tractor rig of which he owned the tractor portion Since the accident in October 2008 Mr Franklin has been unable to wark as a truck driver or at any other job Even if Mr Franklin experiences an excellent outcome after he undergoes the proposed third back surgery he will only be released to wark on a restricted part sedentary basis time requiring very little walking no bending stopping squatting or climbing no lifting anything over five pounds and no driving longer than 20 minutes at a time Truck driving does not fit those work restrictions Mr Franklin stated that he typically drove 70 hours per week in addition to maintaining his rig when he worked as an operator owner truck driver According to Mr s Franklin treating physician Mr Franklin will never be a truck driver again At trial the jury was presented with testimony from several expert witnesses Stephanie Chalfin who was accepted as an expert vocational rehabilitation consultant testified on behalf ofMr Franklin She stated that it would be difficult to place Mr Franklin in a sedentary job because he does not have any clerical ar camputar skills he lives in a rural area and most sedentary jobs would require too long of a commute in violation of VIr s Franklin restrictions Ms Chalfin fiuther testified that given his skill set Mr Franklin could earn the most money as a truck driver but that he will 8 never be able to earn that amount of wages again since he will never be able to work as a truck driver again Additionally Ms Chalfin stated that Mr Franklin gross earnings as s an experienced owner truck driver during the three time period operator year before the accident was 116 in 2006 134 in 2007 and 00 000 00 000 00 000 124 in 2008 until the accident in October She also testified that Mr Franklin could earn an average annual salary of 48 if he worked 00 000 for another trucking company from his home base of North Carolina Ms Chalfin stated that Mr Franklin enjoyed being a truck driver and had always planned to work as a truck driver until he retired at the earliest age 65 On cross examination Ms Chalfin indicated that Mr Franklin expenses for his s operator owner trucking business ranged from 63 in 2006 to 00 985 00 339 77 in 2007 resulting in net annual earnings of 52 to 00 015 00 661 56 Dr George Randolph Rice was accepted as an expert in the field of economics who testified on behalf ofMr Franklin Dr Rice stated that from the time of the accident until the time of trial Mr Franklin could have earned a gross income of 507 as an owner truck driver Dr Rice 00 488 operator clarified that gross receipts do not take into account business expenses such as maintenance and repairs on Mr Franklin used trucks He also testified that s Mr Franklin remaining work life his labor market activity from the time s of trial until age 65 was 5 years Dr Rice calculated that it would take 72 00 648 758 which included a cost adjustment to replace Mr living of slost future gross wages as an owner truck driver Dr Rice Franklin operatar 5 Ms Chalfin testified that Mr Franklin income tax returns showed a reported business s income in 2006 of 16 and 4in 2007 00 328 00 620 9 also determined that under a scenario where Mr Franklin worked far a trucking company rather than as an owner with gross annual operator earnings of 44 his past lost wages would equal 169 and his 60 969 00 283 future lost wages would amount to 253 00 062 Dr Kenneth J Boudreaux was accepted as an expert economist who testified on behalf of Chartis Dr Boudreaux opined that Mr Franklin had a little over eight years worth of work life expectancy at the time of the accident with five years allocated to future lost wages and three and a half years allocated to past lost wages Dr Boudreaux testified that according to the tax returns Mr Franklin actual business earnings were 16 in s 00 328 2006 4 in 2007 and 3 in 2008 through the date of the 00 620 00 323 accident Thus Dr Boudreaux testified that Mr Franklin average annual s earnings in the three years leading up to the accident were 8 While 00 728 acknowledging that this rate of earning was less than minimum wage Dr Boudreaux used that rate to calculate Mr Franklin slost wages testifying that Mr Franklin actual past lost wages were 27 and his future lost s 00 372 wages were actually 48 00 102 Dr Boudreaux criticized Dr Rice figures because Dr Rice used gross s earnings without removing expenses from those actual eamings to arrive at Mr Franklin true income Dr Boudreaux also stated that no expert could s testify as to whether Mr Franklin could earn 44 per year working for 00 000 another trucking company after his accident since Mr Franklin tax records s t don support that amount of annual earnings However Dr Boudreaux opined that if he made that calculation based on an annual salary of 10 00 000 44 the lost wages figure would be 170 for past lost wages 00 000 and 260 for future lost wages 00 000 Dr Todd Capielano testified on behalf of Chartis and was accepted as an e vocational rehabilitation expert Dr Capielano opined that Mr pert Franklin could not return to wark as a truck driver even if his third back surgery was successful because truck driving requires more than what light to sedentary work restrictions will allow Dr Capielano testified that experienced truck drivers in North Carolina where Mr Franklin lives earn anywhere from 38 to 44 per year Dr Capielano stated that 00 00 251 075 after a successful third surgery Mr Franklin would be able to wark at light to sedentary positions such as a trucking dispatcher escort vehicle driver order clerk or security guard However when Ms Chalfin was called to testify on rebuttal she countered that Mr Franklin future job prospects s were guarded because he would only be able to return to work on a part time basis in a sedentary position not light work and that is only if he experiences a very good outcome from the third surgery The jury was instructed without objection that any award for lost wages should be based on gross income figures The jury apparently found merit in some of each of the competing experts testimony regarding wages for owner versus drivers working for trucking companies The operators amounts awarded Mr Franklin for past and future lost wages actually fell between the highest figures presented by Dr Rice and the lowest figures offered by Dr Boudreaux for owner truck drivers Further the operator 6 The general rule is that gross rather than net earnings are the appropriate measure of damages for calculating lost wages See Brown 5 So at 888 n Crane v Exxon 3d 7 Corp U 613 So 214 225 La App lst Cir 1992 xeheazing denied writs A S 2d 226 granted in nart on other rounds and remanded 620 So 858 La 1993 and Sorrells v 2d Eddie Knippers Associates Inc 544 So 556 562 La App 1 st Cir 1989 2d 11 amounts awarded were vell within the range of projected estimates and were very consistent with the evidenee presented by all expert witnesses for gross wages earned by a truck driver that worked for a trucking company which the evidence showed NLr Franklin had done for much of his trucking career Where as here a conflict in the evidence exists and no party presents evidence that is wholly inconsistent implausible on its face or unbelievable in light of objective evidence the appellate court must defer to the s factfinder decision unless that decision is manifestly erroneous or clearly wrong Cotton v State Farm Mut Auto Ins Co 2010 La App lst 1609 Cir 5 65 So 213 224 writ denied 2011 La 9 68 11 6 3d 1084 11 2 3d So 522 Brown 5 So at 888 Having reviewed the evidence presented 3d we cannot say that the amounts awarded Mr Franklin for past and future lost wages were an abuse of the s jury discretion Accordingly we reject s Chartis and Mr Franklin sassignments of errar so alleging Loss of Earning Canacitv Chartis also maintains that the jury award of 75 for Mr s 00 000 s Franklin loss of earning capacity was clearly wrong in that it was duplicative of the future lost wages award and highly speculative Mr Franklin counters that the award was abusively low considering the fact that he has been unable to be gainfully employed due to his permanent medical restrictions In many cases as in this one lost earning capacity and lost future wages are different elements of damages Haydel v Hercules Transport Inc 94 La App lst Cir 4 654 So 418 435 writ denied 95 1246 95 7 2d ll 72 La 6 656 So 1019 A loss of earning capacity award is not 95 23 2d 12 based merely upon the difference b a person earnings before and tw s after a disabling injury but also on ihe loss or reduction of an injured person s ability to earn money Hobgood v Aucoin 574 So 344 346 La 1990 2d Earning capacity is not necessarily detez7nined by the actual loss damages may be assessed for what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity Thus damages for a person loss of eaming capacity are calculated on the person s s ability to earn money rather than what he actually earned before his injury Haydel 654 So at 435 It also encompasses the loss of the person 2d s earning potential or capacity the loss or reduction of a person capability to s do that far which he is equipped by nature training and experience David v Our Lady of the Lake Hosp Inc 2002 La App lst Cir 6 1945 03 27 857 So 529 533 2d Because awards for loss of earning capacity are inherently speculative and are intrinsically incapable of being calculated with mathematical certainty the trier of fact is given much discretion in fixing such an award Jenliins v State ex rel Dept of Transp and Development 2006 La 1804 App lst Cir 8 993 So 749 772 writ denied 2008 La 08 19 2d 773 2471 08 19 12 996 So 1133 2d Nevertheless a projection of Ioss of future earning capacity must have a factual basis in the record and an award may not be based upon speculation possibility or conjecture Id at 775 All of the experts ack that Mr Franklin is basically owledged unemployable at this point and even if Mr Franklin has a successful outcome from a third back surgery and is able to return to some kind of part time light to sedentary work he will never be able to drive a truck again because 13 of his medical restrictions The vocational rehabilitation consultant Ms Chalfin further testified that due to Mr Franklin lack of clerical s computer skills his intellectual and educational capabilities and his physical limitations he would never again earn the wages he could have earned as an operator owner truck driver There was no countervailing evidence that Mr Franklin could earn the same amount or mare at a different job if his third surgery is successful The record contains little evidence that is helpful in determining a specific amount for an appropriate award due to the economic impact of Mr Franklin s physical limitations but the loss of his earning capacity was certainly proved in a general sense Given the evidence in the record we cannot say that the jury abused its discretion in its 75 award to Mr Franklin for his loss 00 000 of earning capacity implicitly finding that Mr Franklin would be able to earn more money after his future surgery if he did not have medical restrictions limiting him to part sedentary wark Accordingly we find no time to light merit to these assignments of error Physical Pain and Sufferin In his answer to Chartis appeal Mr Franklin assigns error to the s s jury award of 150 for his past physical pain and suffering arguing 00 000 it is abusively low considering his two failed surgeries and the agonizing pain he endured over the almost four years between the accident and trial The jury considered the video deposition testimony of Mr Franklin treating s physician Dr Villalobos who was accepted as an expert in the field of neurosurgery Dr Villalobos testified about the significant and large disc herniation in Mr Franklin lower back and he gave his opinion that the s 14 herniation was caused by the accident He also testified about Mr Franklin s radiating nerve pain into the leg and foot and the tingling and numbness Mr Franklin experiences from nerve compression Dr Villalobos further stated that Mr Franklin experienced failed back surgeries and has residual pain due to instability in his back The jury also heard the live testimony of Mr Franklin and his sister Wanda Franklin Land Ms Land testified that her brother lives with her in North Carolina and has lived with her ever since he came to stay with her after his first surgery She stated that Mr Franklin pain and nausea were s bad after the surgery that he was weak and pale that he is depressed much of the time that walking hurts him and he drags his foot that sitting too long hurts him and that he cries and he falls Mr Franklin testified that he initially felt pain the day after the accident He stated that his neck and back were hurt in the accident and that he had radiating pain to his fmgers and toes along with numbness on his left side Mr Franklin underwent painful physical therapy injections in his neck and back and two back surgeries but his pain is worse not better He indicated that he is still in pain and is in need ofa third surgery Even though Mr Franklin is fearful about the future third surgery he stated that he will undergo the surgery to help him have a chance to walk again without dragging his left leg and falling Mr Franklin testified that he feels pain and numbness every day even while taking pain medication which tends to make him sick Mr Franklin also stated that he does not sleep well and he dislikes living his life in this way 15 A jury is entitled to great deference in assigning quantum for general damages Guillory 16 So at 1126 While we recognize the jury award 3d s is likely on the lower end of what is appropriate it is not our role to substitute our view of the evidence for that of the jury Id Based upon the evidence s in the record could have reasonably concluded 150 was an thejury 00 000 appropriate award for Mr Franklin past physical pain and suffering He s was also awarded 55 for his past mental anguish and 250 for 00 000 00 000 his loss of enjoyment of life Given the overall amount awarded for general damages we do not find the jury abused its discretion This assignment of error is without merit Future Medical Expenses Mr Franklin also assigns error to the jury award for his future s medical expenses submitting that the award of 100 was abusively 00 000 and unreasonably low Although future medical expenses must be established with some degree of certainty they do not have to be established with absolute certainty as an award far future medical expenses is by nature somewhat speculative Brown 5 So at 889 An award of future medical 3d expenses is justified if there is medical testimony that they are indicated and setting out their probable cost Id An appellate court should not disturb an award for future medical expenses absent an abuse of the trier of fact s discretion Id The only record evidence regarding the probable cost of a third back surgery was presented by Dr Villalobos who testified that a third surgery as a result of Mr Franklin accident was a possibility Dr Villalobos also s stated that the third surgery would necessarily be a fusion costing anywhere 16 from 40 to 140 depending on the length of Mr Franklin 00 000 00 000 s hospital stay the hardware used in the surgery and any complications In light of this evidence we find a reasonable factual basis exists far the jury s award of 100 for future medical expenses I the jury did not 00 000 hus abuse its discretion we find no merit t this assignment of error CONCLUSION For the outlined reasons we affirm the trial court final judgment that s was rendered in accordance with the jury verdict All costs of this appeal s are equally assessed to plaintiff Fredrick D Franklin and defendants Orlando L Stanley CRST International Inc and New Hampshire Insurance Company AFFIRMED 17 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0226 FREDERICK FRANKLIN VERSUS AIG CASUALTY COMPANY CRST INC AND ORLANDO STANLEY CONSOLIDATED WITH 2013 CA 0227 OLD REPUBLIC LIFE INSURANCE COMPANY VERSUS CRST VAN EXPEDITED INC ORLANDO L STANLEY AND AIG INSURANCE COMPANY McCLENDON reasons concurs in part dissents in part and assigns While I agree with the majority that the general rule is that gross income is the appropriate measure of damages for caiculating lost wages where a plaintiff is a self business person who has considerable expenses the employed appropriate measure of gross earnings is usually the bottom line of Schedule C or the net profit from the business See Russ Herman Louisiana Practice Personal Injury 280 4 2012 ed and Preston v Chrysler Motor Corp s 334 So 486 488 La 1 Cir writ denied 377 So 877 La 1976 2d App 2d Nevertheless given that the jury could have relied on Ms Chalfin testimony s that Mr Franklin net annual earnings from his trucking business ranged from s 00 00 015 661 52 to 56 I concur with the majority decision affirming the s The majority sets forth this premise in foomote 6 of the opinion 1 00 000 200 and 300 awards for past and future lost wages 00 000 respectively Additionally I disagree with the majority affirmation of the 75 s 00 000 award for Mr Franklin loss of earning capacity s Factors to be considered in fixing awards for loss of earning capacity are age life expectancy work life expectancy appropriate discount rate also known as the investment income factor the annual wage rate increase or productivity increase prospects for rehabilitation probable future earning capacity loss of future earning capacity loss of earning ability and the inflation factor or decreasing purchasing power of the applicable currency Brown v DSI Transports Inc 496 So 478 484 2d App La 1 Cir writ 2d denied 498 So 18 La 1986 According to Mr s Franklin rehabilitation expert Ms Chaifin given Mr Franklin age and skill set s his best earning potential was working as a truck driver Further Mr Franklin was 59 years old at the time of the accident and had a work expectancy from life the time of triai of between 5 and 8 years Considering all relevant factors I 72 conclude that the jury award of 75 for loss of earning capacity is s 00 000 abusively high 2

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