Opinion
No. 9520.
November 8, 1978. On Rehearing December 6, 1979. Writ Granted February 8, 1980.
APPEAL FROM 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, DIVISION "K", STATE OF LOUISIANA, HONORABLE ALVIN RUDY EASON, J.
Occhipinti, Grace, Berger Dunford, John A. Occhipinti, Christopher T. Grace, Jr., New Orleans, for plaintiff-appellant.
Sessions, Fishman, Rosenson, Snellings Boisfontaine, Robert E. Barkley, Jr., Linda S.A. Burke, Porteous, Toledano, Hainkel Johnson, Ben C. Toledano, New Orleans, for defendants-appellees.
Before SAMUEL, GULOTTA and BEER, JJ.
Before SAMUEL, REDMANN, GULOTTA, BOUTALL and BEER, JJ.
Though a number of issues are fairly stated and vigorously argued by able counsel for appellant, such contentions may be essentially mooted and, for all practical purposes, obviated by a finding on our part that the quantum awarded by the jury (and sustained by the trial Judge's refusal to grant an additur) does not constitute an abuse of the trial court's discretion.
Accordingly, we turn first to that consideration.
Mr. Suhor experienced a back injury in a typical rear-end automobile collision, and appellee's legal responsibility for the dam ages incurred is not at issue here.
The accident happened on November 3, 1975, and resulted in Suhor's conservative, though fairly intensive, treatment by Dr. Kenneth Adatto until February, 1976 — about three months post accident — when, with his condition showing no improvement, a myelogram, indicating objective findings, was performed.
As a result, Suhor Underwent a laminectomy on March 31, resulting in his hospitalization Until April 15.
The record, and particularly the testimony of Dr. Adatto, indicates that the fusion sought in operative procedures was "not solid," but there is a difference in professional opinion between the medical experts who testified in this case regarding the implications of this result.
Likewise, the record reveals other differences of expert opinion concerning the overall effect of the injury and subsequent operative procedures described above. Dr. Richard W. Levy was of the view that Suhor's post operative recovery had been quite satisfactory, that his comprehensive examination demonstrated no neurological abnormalities and that Suhor was fully capable of returning to generally unrestricted gainful employment. Suhor, himself, supported to some extent by the testimony of Dr. Marvin Miller, a psychiatrist, and by Ms. Susan Smith, an occupational therapist and vocational evaluator, contended that his employment options had been markedly limited by his injury, that such limitation had caused mental problems which, in turn, had exacerbated the situation, and that his spotty work record since the accident and resulting surgery indicated an essentially static situation which would, most likely, confront him for the balance of his work life expectancy.
Plaintiff also relied upon the testimony of Dr. Melville Wolfson, an expert in computation of wage loss and present value analysis, to support his wage loss claim.
Thus, the jury had before it a clear issue of credibility with respect to the severity and the long term implications of Suhor's injury and resulting disability. The record leaves no doubt about the fact that Suhor had been injured; that surgery had been necessary as a result of the injury; and that some recompense is obviously due.
If, however, the jury made a factual determination that Suhor's situation was essentially as described by Dr. Levy — and confirmed to some extent by Dr. Adatto — the proper quantum range for such recompense would be quite a bit lower than if the jury determined that Suhor's injury had resulted in the permanent type situation described by Suhor himself and supported in various ways by the testimony of the psychiatrist, Dr. Miller, Ms. Smith and Dr. Wolfson, the economics experts. Specifically, the jury was confronted by the necessity to make certain clearly defined credibility determinations, including, inter alia, the extent of Mr. Suhor's permanent disability and the effect thereof upon his continued gainful employment.
Our examination of the record with respect this critical issue convinces us that there was reasonable support for the jury's apparent conclusion that Suhor, though clearly required to undergo considerable discomfort, hospitalization. operative procedures, and a period of recuperation was, nevertheless, able to get back to work and into the mainstream of life in all important respects and within a reasonable time frame.
Just as true is the observation that the record also reasonably supports a much more drastic and far longer termed conclusion with respect to disability. It's a question of which version the jury chose to accept.
Guided by the Supreme Court's mandate, we direct our consideration to this narrowed premise:
Granting the jury their broad powers in the determinative process of fact finding, and recognizing the support provided by the record as noted previously, we ask ourselves if the award of $25,000 was so low as to constitute a breach of discretion and, thereby, require us to substitute our judgment for theirs. We think not. The award is low — even applying the rules noted above. But it is not so low as to require our intervention — particularly in light of those restraints which we are bound to follow. See: Anderson v. Welding Testing Laboratory, 304 So.2d 351 (La. 1974), and Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976).
For a reviewing court's consideration, we turn to able counsel's other contentions, which are as follows:
The trial court erred in permitting the defendants to introduce evidence as of their inability to pay or respond in judgment.
In the event the "ability to pay" doctrine may be properly considered in determining the amount of damages to be awarded, then the trial court erred in refusing to allow plaintiff to introduce into evidence insurance policy limits to rebut defendant's defense of inability to pay. The trial court erred in charging the jury that the ability or inability of defendants to pay or respond in judgment, over and above insurance policy limits, may be properly considered in determining the amount of damages, when the jury was not informed of said insurance policy limits.
Our views concerning both the constitutionality and general acceptability of the "inability to pay" rule were discussed in detail in Davis v. Moore, 353 So.2d 740 (La.App. 4th Cir. 1977), writs refused, February, 1978. It serves no useful purpose to reiterate.
Granting the premise that defendant's ability to pay is a proper jury consideration, appellant, nevertheless, contends that monetary limits of the various applicable policies are also relevant to the issue and should have been available for the jury's consideration. Appellee argues that failure to actually seek introduction of this evidence waived the issue on appeal. Alternatively, if the issue is preserved, appellees contend that the policy limit is analogous to evidence of wealth or affluence and, hence, an improper consideration under the ability to pay doctrine.
In Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1st Cir. 1975), writ den. 323 So.2d 478 (La. 1975), the Supreme Court noted its disapproval of a trial court decision not to disclose the amount of insurance coverage to the jury, and took issue with the appellate court's reasoning that such evidence violated the established rule against admission of evidence of the defendant's affluence or wealth. Thereafter, in Domingue v. Continental Insurance Company, 348 So.2d 209 (La.App. 3rd Cir. 1977), our brothers in the Third Circuit held that it was not reversible error to allow the jury to see the insurance policy including the dollar amount limits.
Here, however, able counsel for Suhor attempted to present such evidence indirectly — by various objections during the course of the trial. Actual evidence of policy limits was neither directly introduced nor directly proffered at the trial, and such tactical considerations as may have precipitated the non-introduction and non-proffer leave us little range within which we can act. This is not a case where the trial judge sustained an objection to the admissability and/or relevance of the evidence and, thereby, excluded it. The record is void of any clear cut, affirmative offer to introduce (or, failing that, to proffer) the policy limits, although we take note of counsel's objections to the introduction of "ability to pay" testimony without the ability to introduce the policy limit evidence. So, it is apparent that counsel for Suhor labored under the assumption that he was prevented from introducing the policy limit evidence.
Finally, appellant contends that the jury charge with regard to consideration of defendant's ability to pay over and above insurance coverage, without specifying the policy limits, was prejudicial and erroneous. However, appellee, State Farm, argues that appellant's objection to the jury charge was not sufficiently specific and, thus, precluded by La.C.C.P. art. 1793.
Plaintiff's able counsel did not request a jury charge on the issue of insurance coverage but during the charge conference, he apparently requested that the various pertinent policies be submitted to the jury.
When the jury retired to deliberate, plaintiff's counsel made an objection to the jury charge dealing with ability or inability of Donald Bellow and Darlene Bellow Gusse to pay but was specific within the unequivocal terms of La.C.C.P. art. 1793, which requires counsel to state ". . . specifically the matter to which he objects and the grounds of his objection." Watts v. Aetna Casualty Surety Company, 309 So.2d 402 (La.App. 2nd Cir. 1975), writ den. 313 So.2d 601 (La. 1975); Katz v. Insurance Company of North America, 150 So.2d 879 (La.App. 4th Cir. 1963), writ ref., 244 La. 476, 152 So.2d 565 (1963)
Although the foregoing observations form the basis for our view that error, if any there was, forms no proper basis for reversal or remand, certain trial tactics provoke comment:
The evidentiary presentation of Bellow's alleged inability to pay appears to have been orchestrated by the insurer whose coverage would only come into effect if the amount of the jury verdict exceeded the primary coverage on the negligently operated automobile. Since we conclude that neither the jury nor the trial judge, in his denial of the motion for additur, has breached their much discretion in assessing damages, we feel constrained from considering the effects of such manipulation. Even so, it was a less than savory procedure and, in our view, abused the spirit and the intent of La.C.C. art. 1934.
One way to have obviated this questionable tactic was for the trial court to have carefully followed the Ashley rule, supra.
Thus, we conclude that the better practice would have been for the trial court to have instructed the jury regarding the provisions of La.C.C. art. 1934, and to have also pointed out to them that such considerations played a part in their quantum deliberations only if the verdict exceeded the combined total of the applicable insurance policy limits of $350,000.00. Stated another way, we believe that the introduction of evidence relative to the insured defendant's inability to pay forms a proper basis for the full disclosure of policy limits. Otherwise, the evidence adduced in support of the Article 1934 thesis is little more than a sham.
For the reasons discussed in the first portion of this opinion, the judgment is, with some reluctance, affirmed.
AFFIRMED.
GULOTTA, J., dissents.
ON REHEARING
DECREE
There being no majority to modify, reverse, or remand the judgment appealed from, the judgment is, for lack of a majority to change it, affirmed.
AFFIRMED.
BEER and REDMANN, JJ., concur with written reasons.
BOUTALL, J., concurs in result with written reasons.
SAMUEL and GULOTTA, JJ., dissent with written reasons.
Our order dated January 19, 1979, stated:
"A majority of the judges on the panel which heard the captioned case have concluded that a new trial should be ordered and, accordingly, that this case should be remanded to the district court for a new trial. One of the judges has dissented, being of the view that our further actions with respect to this case are controlled by the Supreme Court holding in Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975)." Accordingly, we ordered that the matter be reargued before a panel of five judges of this court and that was done on February 7, 1979.
No useful purpose will be served by a length recital of the issues. It is apparent that the jury awarded $25,000 because either (1) it believed Dr. Levy rather than Dr. Adatto or (2) although it believed Dr. Adatto, it limited damages because defendant individual were poor although insured. In case (2) the verdict requires increase; in case (1), it requires affirmance.
It is highly unlikely that the jury's $25,000 verdict gave any weight to the evidence of defendant individual's alleged inability to pay when the jury knew that those individuals were insured (even if for unknown amounts). A far more probable explanation of the verdict is that the jury believed Dr. Levy, and this is a matter entirely within the jury's function.
Remand for retrial might be preferable but is proscribed by Gonzales v. Xerox Corporation, supra. The judgment, therefore, affirmed.
I have signed the degree because I believe that to be the result of this panel's deliberations. On the merits of the case, I am convinced that the facts produced on trial demand that the judgment in favor of this plaintiff be increased considerably. I believe the amount of the verdict is woefully inadequate for the same reasons expressed in the opinion of Judge Samuel, which I adopt.
I respectfully dissent.
The low jury award in this case was influenced, in my opinion, by evidence of defendant's inability to pay. The failure to permit evidence of the existence of insurance coverage and of policy limits, where evidence of inability to pay has been introduced, understandably, places a jury in a position of awarding an unreasonably low amount. In my opinion this is what happened in this case. The jury could very well have believed plaintiff's experts' and plaintiff himself, of the dire consequences of this accident and awarded $25,000.00, when faced with evidence of defendant's inability to pay.
Although cognizant of the concept of judicial economy, I'm of the opinion that this matter should be remanded for a new trial.
Following a rehearing, this matter was reargued before a five judge panel as mandated by Article 5, Section 8(B) of the Constitution of 1974. Those five judges have come to three different conclusions. One would remand, two would affirm, and two would very substantially increase the award. I am one of the two who would so increase.
Despite a timely plaintiff objection, the trial judge allowed the defense to introduce evidence regarding the financial status of the individual defendants and their inability to respond in judgment. In addition, he instructed the jury as follow: "In determining the amount of the damages you may take into consideration the ability or inability of Mr. Bellow and Mrs. Gusse to pay the amount of damages which you award." No evidence was received regarding defense insurance coverage or the amount thereof, although there was such coverage.
The defendant vehicle was insured by Allstate Insurance Company with a liability limit of $50,000. Excess insurance apparently in the amount of several hundred thousand dollars is offered under the uninsured motorist provisions in several policies issued to plaintiff's employer by State Farm Mutual Automobile Insurance Company.
The actions were erroneous. As stated by the Third Circuit in Daniels v. Conn :
No. 7153 of the docket of the Court of Appeal, Third Circuit, State of Louisiana, ___ So.2d ___, 1979.
". . . . While a court may consider the inability of defendant or defendants to respond in judgment, such a rule does not apply in cases in which there is an impecunious defendant liable in solido with a solvent defendant."
Our settled jurisprudence is that, even where the error committed by the trial court is consequential or prejudicial (as in the admission of refusal to admit evidence, or in instructing a jury, both present here), when the appellate court has all of the evidence before it, such error does not warrant remand and the appellate court must make its own independent conclusion as to the facts revealed in the record and render a judgment on the merits. In my view, as the entire record is before us, we are obligated to proceed to an independent consideration of the facts and to decide accordingly.
Gonzales v. Xerox Corporation, La., 320 So.2d 163; Temple v. Liberty Mutual Ins. Co., La., 330 So.2d 891; Gordon v. City of New Orleans, La.App. 363 So.2d 235. The rule is stated in Gonzales v. Xerox Corporation, at page 166, as follows. "When the entire record is before the appellate court, remand for a new trial produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process. Although the appellate court does not gain the benefit of personally viewing the witnesses, it does have a complete record and the constitutional authority to decide."
As stated in our original opinion, plaintiff was injured in a typical rear-end automobile collision and liability is not an issue. The issues are the extent of the injuries sustained by plaintiff and the amount of damages to which he is entitled therefor.
The principal medical evidence was given by Dr. Kenneth Adatto, an orthopedic surgeon and plaintiff's treating physician, Dr. Marvin Miller, a psychiatrist, and Dr. Richard Levy, a neurosurgeon who examined plaintiff on behalf of defendants.
The accident occurred on November 3, 1975 and plaintiff was seen by Dr. Adatto on November 11, 1975. His testimony was as follows:
The orthopedic examination revealed spasms in the cervical and lumbar zones and plaintiff was placed on tylenol with codeine for pain, and muscle relaxants. When seen on November 21, 1975, plaintiff had not improved. He requested different medication to relieve the pain. Physical therapy was recommended. On December 5, plaintiff showed slight improvement but was placed on new medication because of his further complaints of pain at this time.
When seen on December 19, plaintiff was much improved and it was suggested he return to work on January 5, 1976. However, he returned on January 9 and 16, because he was getting worse. He was advised to see Dr. Palmer, a neurologist, and to get further bed rest. On his visit of February 3, plaintiff was still having much difficulty.
Following consultation with Dr. Palmer, who did not rule out a disc, myelogram was recommended. The myelogram was performed in February, 1976 at St. Charles General Hospital. Defects revealed by the myelogram indicated surgery was advisable and on March 30, 1976 plaintiff was hospitalized and a laminectomy, laminotomy and spinal fusion were performed. Following surgery, plaintiff was discharged April 15, 1976. He was instructed to wear a metal brace for four to six months to protect his back. Plaintiff returned innumerable times thereafter. He was improved on his last visit on January 7, 1977.
In Dr. Adatto's firm opinion, as a result of the surgery plaintiff will not be able to stoop, lift or bend on a competitive basis, nor will he be able to lift anything over 25-50 pounds for the remainder of his life.
The purpose of fusing is to make the portion a solid fixed structure. However, x-rays showed the operation, in that respect, had not been successful; the fusion was not solid. Dr. Adatto stated plaintiff had a 25% permanent disability of the body as a whole as a result of the accident. He also testified that when a fusion is not solid another operation may be needed.
Dr. Coleman Schneider, a radiologist, confirmed Dr. Adatto's finding that the fusion was not solid.
Because of physical problems resulting from the accident, plaintiff became despondent and discouraged and was seen by Dr. Marvin Miller, a psychiatrist, on eight occasions between May 26, 1976 and February 23, 1977. The doctor concluded plaintiff experienced a neurotic depressive reaction as a result of the accident, injuries and subsequent medical events, in short that he had a serious psychiatric problem. He found plaintiff anxious to return to an active, normal life but worried about his inability to do so because his unstable back prevented him from continuing the job he had performed prior to the accident.
Dr. Levy, a neurosurgeon called by the defendants, examined plaintiff on one occasion, January 25, 1977. He was aware of the operation performed by Dr. Adatto. At the conclusion of the neurological examination, Dr. Levy stated plaintiff did not have an active or current disability which would prevent him from doing whatever he wanted to do. He found no neurological abnormality. However, he stated when an individual has a portion of two discs removed, he does have a degree of disability. He estimated plaintiff's disability as 10-15% partially of the body as a whole. He confirmed this rating did not include any disability resulting from the spinal fusion, which he admitted was not solid, as disclosed by the x-rays which revealed motion at the L4-L5 and L5-S1 level. I note this is an orthopedic problem and Dr. Adatto, an orthopedic surgeon, was the treating physician.
Susan Smith, qualified as an expert in occupational therapy and vocational evaluation, concluded plaintiff's physical condition at present, limits him to light work, lifting no more than 15-25 pounds (in line with Dr. Adatto's thinking), that he cannot sit for long periods, is unable to work a full 8 hour day, and can at this time work no more than three hours per day. She stated employers are reluctant to hire people with back problems.
Lay testimony of plaintiff and his mother was to the effect that prior to the accident he had been very active physically, bowling, fishing, doing yard work at home and doing very well in a job which offered future advancement. He has been unable to return to that job since the accident because it requires heavy lifting. This testimony supports the conclusions reached by Dr. Miller, the psychiatrist, and all of the other medical evidence with the sole exception of a part of Dr. Levy's testimony.
The only evidence regarding loss of wages was given by Dr. Melville Wolfson, an expert in the computation of wage loss and present valuation analysis. Basing his finding on plaintiff's age (25 years at the tile of the accident), annual wage at the time of the accident ($10,234), work life expectancy (an additional 34 years), and taking into consideration discounting, which Dr. Wolfson explained in detail, he concluded plaintiff's future wage loss was a minimal of either $159,202 or $165,718 (depending on whether plaintiff would be able to earn a lesser amount than formerly as opposed to not being able to earn any income in the future). These figures do not include what Dr. Wolfson referred to as an improvement factor, and do not take inflation into consideration.
To summarize, the overwhelming preponderance of the evidence is that plaintiff's injuries from the November 3, 1975 accident resulted in a myelogram in February, 1976, and extensive back surgery in March, 1976, which surgery included a laminectomy, laminotomy, and spinal fusion. The spinal fusion was unsuccessful and further surgery may be needed to make the fusion solid. Plaintiff was required to wear a metal brace from four to six months. He cannot stoop, lift anything over 20-50 pounds for the remainder of his life, bend on a competitive basis or work at any job which requires such activity. Twenty-six years of age at the time of trial, he is despondent and discouraged by his problems, resulting in a neurotic depressive reaction. All of the testifying doctors state he has a permanent residual physical disability, from an estimated 25% (Dr. Adatto) to 10-15% (Dr. Levy). It appears clear this active 26 year old has not, and in all probability will not, be able to continue his recreational activities, or other similar physical activities, for the rest of his life, nor will he be able to engage in the type of remunerative employment for which he is qualified.
The only evidence contained in the record which in any way tends to lessen this summarization is the testimony of Dr. Levy, which testimony is further discussed later in this dissent.
The judgment appealed from awards plaintiff a total of $25,000. However, it also includes payment of $12,539.06 by preference to a workmen's compensation insurer for medical and compensation benefits paid by that insurer to the plaintiff as a result of his injuries. Thus, plaintiff actually receives only $12,460.94 for all damages resulting from the accident including the serious operations, loss of wages both past and future, his residual physical and mental condition, the possible future surgery, all special damages, and pain and suffering. The stipulated or proven special damages are $6,504.06 in medical expenses, $12,462 in loss of wages to trial, and a minimum of $159,202 in loss of future wages, or a total of $178,568. This figure does not include expenses for future possible surgery. Thus, the $12,460.94 award actually received by plaintiff does not even approach the stipulated or proven specials to which he is entitled nor, as has been said, does it include an aware for his pain and suffering or permanent residual disability, both physical and mental.
Insofar as Dr. Levy is concerned, I simply do not believe his testimony that this plaintiff, who had undergone such serious back surgery, including an unsuccessful fusion which was not solid, did not have an active or current disability which would prevent him from doing whatever he wanted to do. It should be noted that Dr. Levy saw the plaintiff only on one occasion. His testimony is restricted to his field of neurology and, despite his conclusion, he still estimated plaintiff's disability as 10-15% of the body as a whole. However, even if this doctor's testimony were accepted, the net award of $12,460.94 is obviously inadequate. With such acceptance, the award still would be $6,505.12 less than the stipulated or proven medical expenses already incurred ($6,504.06) and the actual loss of wages to the time of trial ($12,462.00), a total of $18,966.06. Certainly, even considering only plaintiff's physical and mental injuries and the surgery be had undergone, he is entitled to an award for pain and suffering in a very substantial amount. Instead of any such award for any amount, he has received less than nothing. Under any consideration, he has received less than his proven and undisputed special damages.
In my view, affirmance of the trial court judgment results in an award to plaintiff so totally and completely inadequate as to constitute a miscarriage of justice. I trust the Supreme Court will review the matter.
For the reasons assigned, I respectfully dissent.
I dissent for the reasons assigned in my original dissent in this case.