EILEEN GREGOR, ET AL. Vs. ARGENOT GREAT CENTRAL INSURANCE COMPANY, ET AL.
Annotate this Case
Download PDF
EILEEN GREGOR, ET AL. * NO. 2001-CA-1233 VERSUS * COURT OF APPEAL ARGENOT GREAT CENTRAL INSURANCE COMPANY, ET AL. * FOURTH CIRCUIT * STATE OF LOUISIANA * * ******* AN APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 97-4819, DIVISION “E” Honorable Gerald P. Fedoroff, Judge ****** Judge Miriam G. Waltzer ****** (Court composed of Judge Miriam G. Waltzer, Judge Michael E. Kirby, Judge David S. Gorbaty) On Application for Rehearing Scott LaBarre GAUTHIER, DOWNING, LaBARRE, BEISER & DEAN 3500 North Hullen Street Metairie, LA 70002 -andLeonard J. Cline, Jr. 3021 35th Street Suite A Metairie, LA 70001 COUNSEL FOR PLAINTIFF/APPELLEE Craig R. Nelson WARD NELSON, L.L.C. 1539 Jackson Avenue 6th Floor New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLANT APPLICATION FOR REHEARING GRANTED, JUDGMENT AMENDED We grant Gregor’s application for rehearing to address an issue raised by his answer to the appeal. In his answer to the appeal, Gregor demanded that this court amend the trial court’s judgment to award medical expenses. In his brief, Gregor argued only that the trial court erred by not awarding medical expenses, since the parties had stipulated to the amount of such expenses. However, he failed to address in his arguments to this court that he neglected to plead and demand special damages, including medical expenses, in his petition. However, on rehearing, he has addressed adequately the issue of concern to this court in his brief. Because we feel that the demand has merit, we grant the application for rehearing and amend the judgment to award medical expenses totaling $70,176.21. Items of special damages must be specially alleged. LSA-C.C.P. art. 861. Medical expenses are special damages, as they can be fixed to a pecuniary certainty. Mistich v. Pipelines, Inc., 609 So.2d 921, 938 (La.App.4 Cir. 1992). Generally, a trial court may not award special damages which the plaintiff did not specifically plead. However, LSAC.C.P. art. 1154 provides the only exception to this general rule. Id. LSA-C.C.P. art. 1154 provides in pertinent part, “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings.” (Emphasis added.) If evidence was admissible for any purpose, such an admission could not serve to enlarge the pleadings without the express consent of the opposing party. Laper v. Board of Commissioners of the Port of New Orleans, 617 So.2d 505, 514. DHH and Gregor agreed to certain stipulations, including “Dan Gregor incurred medical expenses in the amount of $70,176.21 as a result of the contraction of vibrio vulnificus.” DHH stipulated to both the amount of Gregor’s medical expenses and the element of causation. We do not decide whether a stipulation regarding the amount of medical expenses alone would sufficiently curtail the pleading requirement of LSA-C.C.P. art. 861. By its stipulation, DHH expressly consented to the enlargement of the pleadings, allowing recovery for past medical expenses. For these reasons, we grant Gregor’s application for rehearing and amend the judgment to award $70,126.21 in past medical expenses. APPLICATION FOR REHEARING GRANTED, JUDGMENT AMENDED
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
