author: GARRETT, J.

text:
    Jose R. ENRIQUEZ and Irma Enriquez, Plaintiffs-Appellees v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, et al., Defendant-Appellant
    No. 52,425-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    W. BRETT CAIN, Shreveport, Counsel for Appellant
    ANTHONY J. BRUSCATO, Monroe, Counsel for Appellees
    Before WILLIAMS, GARRETT, and STONE, JJ.
   GARRETT, J.

The defendant, Safeway Insurance Company of Louisiana ("Safeway"), appeals from a trial court judgment awarding damages for loss of use, inconvenience, and mental anguish to the plaintiffs, Jose R. Enriquez and Irma Enriquez, caused by a car crashing into their house. For the following reasons, we affirm in part, amend in part, and reverse in part the trial court judgment.

FACTS

The plaintiffs, residents of Delhi, Louisiana, were in the master bedroom in the back of their home at approximately 7:40 a.m. on the morning of June 4, 2016. Suddenly, a 2000 Lincoln Town Car driven by DuJuan Johnson ("DuJuan") crashed into the two front bedrooms of the house. DuJuan stated the brakes failed while he was backing up. The back of the car impacted the front of the house, crashing into the interior, causing extensive damage.

The car was owned by Demonte Johnson and insured by Safeway. Although initially disputed, it was eventually determined that DuJuan was using the vehicle with permission and the accident was covered under the Safeway policy.

The plaintiffs had a homeowners' insurance policy with State Farm Insurance Company ("State Farm"), which paid $10,201.24 for repairs to the house, minus a deductible of $1,000. Insurance property damage assessments took several months to complete. The repairs began in September and were finished in October 2016.

In December 2016, the plaintiffs filed a petition for damages naming DuJuan and Safeway as defendants. A bench trial was held in January 2018. Along with pictures of the damage and the completed repairs, the declaration page of the Safeway policy was introduced into evidence. The policy provided a $25,000 limit for property damage liability, and a $15,000 limit for each instance of bodily injury liability. The parties stipulated that Safeway was liable and would be responsible for the $1,000 deductible the plaintiffs were required to pay under their homeowners' insurance policy. The plaintiffs' counsel stated that the recovery sought did not exceed the policy limits. The only issue in dispute was the amount of damages. The elements of damages sought by the plaintiffs were the deductible, loss of use of the house, inconvenience, and mental anguish, which was referred to as "the trauma of what happened when the car ran into the house."

Officer Derrick Whitney with the Delhi Police Department investigated the accident. He testified that, when he responded to the accident, DuJuan was present and did not seem to be impaired. The plaintiffs and one of the neighbors were also present on the scene. According to Whitney, the plaintiffs were surprised and upset, but were coherent.

Mrs. Enriquez testified that she and Dr. Enriquez had been married for 35 years. They had lived in their house since 1990, and had a 30-year-old daughter and a 27-year-old son. Their son was in medical school and came home approximately once a month. Mrs. Enriquez said that, on the morning of the accident, the couple were in bed in the back of the house when they heard a squeaking noise and a boom, which shook the house. They discovered that a car hit the house and the two front bedrooms of the house were impacted. She said the driver of the car was present and was talking on a cell phone. He did not speak to them. Mrs. Enriquez said that she was shaking and could not speak. Her husband spoke to the police.

Mrs. Enriquez said that there was a large hole in the front of the house and one of the brick columns was knocked over. One of the bedrooms was penetrated and the closet in another bedroom was damaged. The plaintiffs put wood panels over the hole, which remained for more than four months before repairs were completed. The contents of the rooms had to be moved into the living room. Bugs and insects crawled into the house and they had to put towels at the bottom of the doors to seal this off from the remainder of the house. When they had visitors, one person slept in the guest bedroom and the other had to sleep on the couch. The brick on the house could not be matched, so bricks from the columns were used and white columns replaced the brick columns. Mrs. Enriquez did not work outside the home, and was at home with the damage for the months it took to complete the repairs.

Mrs. Enriquez did not see a doctor, health care professional, or mental health care professional about any emotional trauma she suffered because of the accident. She took over-the-counter sleeping pills once or twice to calm down the week after the accident. The couple did not rent a storage room and were able to continue living in the house until the repairs were made.

Dr. Enriquez, a physician at the Delhi Clinic and Hospital, testified that he was shocked and surprised to see that a car had hit the house. He got someone to help him board up the hole, but the heat, dust, mosquitoes, and bugs came into the house because it was not possible to get a good seal. The couple made approximately four trips to surrounding brick yards in search of matching bricks to repair the house, but they were unsuccessful. Dr. Enriquez was able to continue working during the time it took to complete repairs to the house. He did not seek counseling from a mental health care professional or take any medication to deal with the trauma of the damage to the house.

After reviewing post-trial briefs, the court rendered judgment in favor of the plaintiffs. In its reasons for judgment, the trial court found that the plaintiffs' claims for loss of use, inconvenience, and mental anguish were well-founded. The court noted the extreme damage to the home and the inconvenience suffered by the plaintiffs for several months before the repairs were completed. The court determined that the plaintiffs established that they suffered psychic trauma as a result of the accident and were entitled to damages for mental anguish, even though they did not seek outside medical help. The court observed that, because Dr. Enriquez is a physician, he could have attended to any of their medical needs.

The court awarded the plaintiffs the $1,000 property damage deductible, classified as a property damage award; $6,750 to each plaintiff for loss of use, classified as a property damage award; $13,500 to each plaintiff for inconvenience, classified as general damages; and $3,500 to each plaintiff for mental anguish, classified as general damages. The total award was $48,500. The plaintiffs were also awarded legal interest on the judgment from the date of judicial demand. Safeway appealed suspensively.

On appeal, Safeway asserts that the trial court erred in making excessive damage awards to the plaintiffs for loss of use and inconvenience, in making any award for mental anguish, and in determining that the damages for inconvenience and mental anguish are to be classified as general damages.

LOSS OF USE AND INCONVENIENCE

Safeway contends that the awards for loss of use and inconvenience in this case were excessive and represented an abuse of discretion. We find that the award for loss of use was not excessive. However, the trial court abused its discretion in making an excessively high award for inconvenience.

Legal Principles

One injured through the fault of another is entitled to full indemnification for damages caused thereby. Wainwright v. Fontenot , 00-0492 (La. 10/17/00), 774 So.2d 70 ; Antley v. Rodgers , 52,168 (La. App. 2 Cir. 6/27/18), 251 So.3d 607. See also La. C.C. art. 2315. Special damages are those that can be determined with some degree of certainty. The plaintiff bears the burden of proving special damages by a preponderance of the evidence. An award of special damages is reviewed pursuant to the manifest error standard of review. Baw v. Paulson , 50,707 (La. App. 2 Cir. 6/29/16), 198 So.3d 186 ; Antley v. Rodgers , supra .

Damages for loss of use are special damages. They are recoverable whether the property is used for business or personal purposes. The normal measure of damages for loss of use is the rental value of similar property and perhaps necessary incidental expenses. It is not necessary, however, that a plaintiff actually rent substitute property in order to recover damages due for loss of use. Rental (which accomplishes the substitution of the use of similar property for that of the injured property) does not determine entitlement to damages, but only provides a fair measure of damages in appropriate cases. The period of compensatory loss of use is the time required to secure the repair of the property in the exercise of proper diligence. See FIE, LLC v. New Jax Condo Ass'n, Inc. , 2016-0843 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, writ denied , 18-449 (La. 5/25/18), 243 So.3d 544, and writ denied , 18-446 (La. 5/25/18), 243 So.3d 545 ; Chriss v. Manchester Ins. & Indem. Co. , 308 So.2d 803 (La. App. 4 Cir. 1975).

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Thomas v. Morris , 51,112 (La. App. 2 Cir. 1/11/17), 211 So.3d 647, writ denied , 17-0442 (La. 4/24/17), 219 So.3d 1099 ;

Antley v. Rodgers , supra . An appellate court may disturb a general damage award only when the record clearly reveals that the trial court abused its discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. See Baw v. Paulson , supra . The discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Baw v. Paulson , supra .

Only after finding that the trier of fact abused its great discretion may the appellate court resort to prior awards, and then only to determine the highest or lowest point reasonably within that discretion. An abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. Baw v. Paulson , supra .

Discussion

According to Safeway, the awards for loss of use and inconvenience were excessive. Safeway points out that the plaintiffs did not have to rent a storage unit; the contents of the damaged rooms were stored in the living room. The plaintiffs were unable to use a bedroom that was only used once a month when one of their children came home from school, but their son still came home to visit. Therefore, Safeway contends that the total awards of $13,500 for loss of use and $27,000 for inconvenience are excessive.

The defendants cite Thompson v. Simmons , 499 So.2d 517 (La. App. 2 Cir. 1986), writ denied , 501 So.2d 772 (La. 1987), in which the several plaintiffs experienced roof damage when a passing truck ripped some cable television wires off their houses. When it rained, one plaintiff experienced water entering the house through a ceiling fan over a bed. It took several months for repairs to be made. The trial court awarded $2,500 for inconvenience and mental anguish to that plaintiff. This court found that the plaintiff did not prove entitlement to mental anguish damages. We held that the plaintiff was entitled to damages for loss of use and inconvenience and determined that the appropriate award was $500.

The defendants also cite Sierra v. American Alternative Ins. Corp. , 2013-1808 (La. App. 1 Cir. 6/18/14), 147 So.3d 1125, where a house was damaged when a fire truck hit it, causing a family with several children, including a special needs child, to live in a hotel for a month. The plaintiff father chose to complete the repairs to the house himself, in his spare time. Therefore, the repairs took longer than they would have if the work had been done by a contractor. The family was out of the house during the holiday season and could not use some of the equipment the special needs child normally used.

The court in Sierra also combined several elements of damages and awarded a total of $6,000 to the parents for inconvenience, loss of use, and mental anguish. The award only covered the two weeks that the repairs would have taken if they had been done by a hired contractor. Safeway argues that the circumstances in Sierra were more severe than those present here. It urges this court to lower the awards for loss of use and inconvenience to a reasonable amount.

The case of Thompson v. Simmons , supra , is somewhat instructive on the proper amount to award for loss of use and inconvenience for damage to a house. However, it is important to note that the case was decided more than 32 years ago. We find Sierra v. American Alternative Ins. Corp. , supra , to be less persuasive because the award included not only loss of use and inconvenience, but also mental anguish. As discussed below, the plaintiffs here have not proven entitlement to damages for mental anguish.

Regarding the loss of use of the house, the plaintiffs in this case were not deprived of its use entirely. However, their use was limited during the four months it took to complete repairs. The plaintiffs could have chosen to move out of the house until the repairs were completed. As stated above, the normal measure of damages for loss of use is the rental value of similar property, and perhaps incidental expenses. It is not necessary that a plaintiff actually rent substitute property in order to recover damages for loss of use. Here, the total award to the plaintiffs for loss of use was $13,500. We cannot say that this amount was so high as to constitute an abuse of the vast discretion accorded the trial court in these matters. Accordingly, we affirm the award for loss of use.

In addition to loss of use, the trial court made an award to each plaintiff of $13,500 for inconvenience, for a total award of $27,000. This inconvenience included the inability to effectively seal the house from the elements in order to keep insects, heat, and dirt out of the house. The plaintiffs also made several unsuccessful trips to brick yards in search of bricks to match the house. The plaintiffs eventually had to use brick from the columns on the house and install white columns in their place. The plaintiffs lived with a damaged house that was in disarray for four months until repairs could be completed. The parties do not dispute that the repairs were accomplished as quickly as possible.

In this matter, even though the plaintiffs were inconvenienced by the damage to their house, where the house was repaired for $10,201.24, and the repairs were completed in four months, a total award of $27,000 for inconvenience is excessive and an abuse of the trial court's discretion. Therefore, we must now resort to an examination of prior awards to determine the highest amount the trier of fact could have reasonably awarded.

In Pollock v. Talco Midstream Assets, Ltd. , 46,302 (La. App. 2 Cir. 5/18/11), 70 So.3d 835, writ denied , 11-1295 (La. 9/23/11), 69 So.3d 1166, a 92-year-old property owner was awarded $1,000 per month for 36 months for aggravation and inconvenience when a pipeline company destroyed her culvert, resulting in flooding of the property where her home was located. This limited or prevented access to the property. Other family members living on the property were awarded $500 per month.

In Ollis v. Miller , 39,087 (La. App. 2 Cir. 10/29/04), 886 So.2d 1199, the plaintiffs were awarded $5,000 for inconvenience and aggravation where numerous repairs were necessary to correct dry rot and other damage that was not readily observable in a newly purchased home.

In Collins v. City of Shreveport , 35,172 (La. App. 2 Cir. 10/31/01), 799 So.2d 630, the plaintiffs were awarded $7,500 for continuing inconvenience where their house flooded due to the city's failure to maintain a drainage culvert in front of the house. The plaintiffs were awarded $9,627 to repair the house.

In the present case, we amend the award for inconvenience and find that the highest amount that could be made for this element of damages is a total award of $10,000. This sum represents $1,250 per month to each of the two plaintiffs, for each of the four months it took for the repairs to be completed. This award comports with the awards for inconvenience made in the cases discussed above.

MENTAL ANGUISH

Safeway maintains that the trial court erred in making any award for mental anguish. This argument has merit.

Legal Principles

An award for mental anguish as a result of damage to property is permitted in the following instances: (1) the property was damaged by an intentional or illegal act; (2) the property was damaged by acts for which the tortfeasor will be strictly or absolutely liable; (3) the property was damaged by acts constituting a continuing nuisance; and (4) the property was damaged at a time in which the owner thereof is present or situated nearby and the owner experiences trauma as a result. 1900 P'ship v. Bubber, Inc. , 27,475 (La. App. 2 Cir. 11/1/95), 662 So.2d 808, writ denied , 96-0037 (La. 2/28/96), 668 So.2d 369 ; Kemper v. Don Coleman, Jr., Builder, Inc. , 31,576 (La. App. 2 Cir. 7/29/99), 746 So.2d 11, writs denied , 99-2954, 99-2955 (La. 1/7/00), 752 So.2d 861; Heard v. Affordable Movers, Inc. , 40,432 (La. App. 2 Cir. 12/14/05), 917 So.2d 722.

The mental anguish which gives rise to a claim for damages must be real mental injury. Kemper v. Don Coleman, Jr., Builder, Inc. , supra ; Demery v. City of Shreveport , 45,615 (La. App. 2 Cir. 11/3/10), 55 So.3d 37, writ not cons. , 10-2710 (La. 2/4/11), 56 So.3d 982. Every incident of property damages is necessarily accompanied by some degree of worry and consternation over such things as possible financial loss, settlement of insurance claims, and discomfort or inconvenience while awaiting and undergoing repair work. Sierra v. American Alternative Ins. Corp. , supra . The owner of damaged property may not recover for mental anguish unless he or she proves a psychic trauma in the nature of or similar to a physical injury, directly resulting from the property damage. Demery v. City of Shreveport , supra ; Heard v. Affordable Movers, Inc. , supra . Since the question of whether an owner experiences trauma is a factual determination, the manifest error rule applies to the fact finder's review of the issue. Wells v. Morgan Gas Co. , 26,641 (La. App. 2 Cir. 3/1/95), 651 So.2d 951, writ denied , 95-0784 (La. 5/5/95), 654 So.2d 327.

Discussion

In its reasons for judgment, the trial court stated that the plaintiffs' claims for mental anguish were well-founded. The court stated, "In the opinion of the Court, the plaintiffs proved that they indeed suffered psychic trauma, when considered in light of the cases of Heard v. AffordableMovers, Inc. , [supra ], and Trim v. South Eastern Exp., Inc. , [562 So.2d 26 (La. App. 5 Cir. 1990) ]." The trial court was manifestly erroneous and clearly wrong in this finding of fact.

The cases cited by the trial court do not support its finding. In Heard v. Affordable Movers, Inc. , supra , this court affirmed the grant of a partial summary judgment dismissing the plaintiff's claim for mental anguish damages arising from property damage and loss. In Heard , the plaintiff lost numerous family heirlooms, stored by a moving company, when they were destroyed in a fire and a subsequent rain storm. We found that, although the plaintiff in that matter suffered distress as a result of the destruction of family heirlooms, many of which were irreplaceable, he did not suffer any real mental injury or psychic trauma in the nature of or similar to a physical injury.

Also, Trim v. South Eastern Exp., Inc. , supra , does not support the trial court judgment. The plaintiffs in this case argue that, because they were present in their home when the impact occurred, this should be treated the same as a passenger who is shaken up in a car accident, but does not suffer any physical damage. Because they were present when the accident occurred, they claim entitlement to recover for mental anguish damages without the need for showing any special circumstances. They cited Trim for the proposition that, where the homeowner is present when an accident occurs, and is frightened for his safety as a result of the tortfeasor's damage to his house, there is sufficient evidence to support an award for general damages. Trim simply does not support the plaintiffs' argument or the trial court judgment. In Trim, the fifth circuit reversed a grant of summary judgment on the issue of mental anguish damages, finding there was a genuine issue of material fact as to whether such damages were suffered. The matter was remanded to the trial court to determine if the plaintiffs could prove entitlement to mental anguish damages. Mental anguish damages were not awarded by the fifth circuit in that case and no new rule for the award of such damages was announced.

According to the jurisprudence set forth above, in order to recover mental anguish damages as a result of property damage or loss of property, one of four specific circumstances pertaining to the loss or damage must be proven. One of these specific instances is that the plaintiff was present or nearby at the time of the damage or loss. Then, the plaintiff must also show a psychic trauma in the nature of or similar to a physical injury, directly resulting from the property damage. The trial court was manifestly erroneous in finding that the plaintiffs proved that they suffered a psychic trauma.

The record clearly shows that the plaintiffs did not suffer the psychic trauma required to support a damage award for mental anguish. Dr. and Mrs. Enriquez experienced only the normal worry and consternation that accompanies damage to property. Mrs. Enriquez took over-the-counter sleep medication on two occasions shortly after the accident. Dr. Enriquez did not testify to anything which could remotely be classified as psychic trauma on his part. He was able to talk to the police immediately after the incident, continued working, had no difficulty sleeping, and exhibited no unusual anxiety. He did not require or seek treatment for any mental trauma.

In awarding mental anguish damages, the trial court noted that neither plaintiff sought medical treatment, but stated that, as a physician, Dr. Enriquez could attend to their medical needs. Notably, the record fails to show that the plaintiffs had any medical needs or that Dr. Enriquez used his medical expertise to meet those needs.

A survey of the jurisprudence supports a finding that the plaintiffs are not entitled to an award for mental anguish. In Moss v. Town of Rayville , 50,189 (La. App. 2 Cir. 11/18/15), 181 So.3d 809, a plaintiff was denied damages for mental anguish when a building he owned was torn down, destroying the contents.

In Demery v. City of Shreveport , supra , a homeowner was not entitled to damages for mental anguish where a drainage pipe leaked and created a sinkhole in the yard of the house.

In Kemper v. Don Coleman, Jr., Builder, Inc. , supra , plaintiffs were not entitled to damages for mental anguish where their houses in a subdivision flooded due to drainage problems.

In 1900 P'ship v. Bubber, Inc. , supra , a plaintiff was not entitled to damages for mental anguish where a neighbor's crop dusting damaged the plaintiff's crops.

In Farr v. Johnson , 308 So.2d 884 (La. App. 2 Cir. 1975), a plaintiff was not entitled to damages for mental anguish where a car hit her house. She was not at home when the accident occurred. The court found that the plaintiff experienced only normal worry and mental consternation over the damage to her house and contents. The repair work took about three weeks to complete.

In Creel v. Southern Nat. Gas Co. , 2003-2761 (La. App. 1 Cir. 10/14/05), 917 So.2d 491, writ denied , 06-0161 (La. 4/24/06), 926 So.2d 543, plaintiffs were not entitled to damages for mental anguish where an erroneous survey showed a natural gas pipeline in the wrong location and the plaintiffs constructed their house close to the pipeline.

In Zaveri v. Husers , 2016-866 (La. App. 3 Cir. 6/21/17), 224 So.3d 389, writ denied , 17-1286 (La. 11/6/17), 229 So.3d 475, plaintiffs were not entitled to damages for mental anguish where the defendants built a huge, structurally unsound retaining wall next to the plaintiffs' property.

In Freyou v. Iberia Par. Sch. Bd. , 94-1371 (La. App. 3 Cir. 5/3/95), 657 So.2d 161, the plaintiff was not entitled to damages for mental anguish where a school's sewage treatment facility released sewage onto the plaintiff's property.

In Chriss v. Manchester Ins. & Indem. Co. , supra , plaintiffs were not entitled to damages for mental anguish when a car hit their house, even though the husband was disabled by hypertension prior to the accident and the plaintiffs were without utilities for an extended period of time.

Cases allowing mental anguish damages for damage to property are clearly distinguishable from the present matter on their facts and the degree of trauma proven by the plaintiffs. In Vincent v. City of Iowa , 2017-951 (La. App. 3 Cir. 4/11/18), 244 So.3d 22, writ denied , 2018-0750 (La. 9/21/18), 252 So.3d 912, the third circuit affirmed mental anguish awards of $35,000 and $40,000 to the plaintiffs whose home and its contents were damaged when a city sewer line discharged into the house. Fecal matter permeated the house and its contents. Many items of personal property were completely destroyed. The plaintiffs and their family had to relocate to a hotel for two months while repairs were made. The plaintiffs did not think the smell was ever completely eliminated from the house. The wife had depression which was worsened due to the property damage, and her medication was increased. The trial court noted that, in court, the wife was still suffering from the incident. She testified that, during the repairs, she was frequently so stressed that she had headaches and vomited. The husband experienced stress which caused him to be unable to sleep well for months. He also developed mouth ulcers which made it difficult to eat.

In Nikolaus v. City of Baton Rouge/Par. of E. Baton Rouge , 2009-2090 (La. App. 1 Cir. 6/11/10), 40 So.3d 1244, writ not cons. , 10-1638 (La. 10/8/10), 46 So.3d 1256, a homeowner proved sufficient psychic trauma to support an award of $3,500 in mental anguish damages the first time the house flooded and $5,500 for the second flood, caused by the city's failure to maintain the drainage system. The plaintiff presented testimony regarding her emotional distress, which was corroborated by the testimony of other witnesses.

In Wells v. Morgan Gas Co. , supra , a plaintiff was awarded $25,000 in mental anguish damages after her house was converted from natural gas to propane and there was an explosion soon after, while the plaintiff was in the house. The house burned down and the plaintiff developed post-traumatic stress disorder.

In Carroll v. State Farm Ins. Co. , 427 So.2d 24 (La. App. 3 Cir. 1983), a plaintiff was awarded $7,500 in mental anguish damages when, although not physically injured, she was almost struck in the head by a boat which became airborne, flew over her head, and hit her barge and dock. The plaintiff immediately went into hysterics, which worsened over the next few hours. She had difficulty sleeping for four to five months after the accident and had nightmares. She would often scream and curse the boat driver in her sleep.

In Elston v. Valley Elec. Membership Corp. , 381 So.2d 554 (La. App. 2 Cir. 1980), an oversized transformer was mistakenly installed at the plaintiff's house, causing an electrical surge which destroyed all the appliances. The homeowner established a psychic trauma in the nature of or similar to a physical injury directly caused by the damage to the home. She was awarded $5,000 for mental anguish.

Based upon the facts presented here, the plaintiffs failed to prove the psychic trauma or mental injury required to support an award for mental anguish. They proved only the expected degree of worry and consternation over such things as possible financial loss, settlement of insurance claims, and discomfort or inconvenience while awaiting and undergoing repair work. The trial court was manifestly erroneous in making awards for mental anguish to the plaintiffs based upon the sparse record before us. We reverse the trial court judgment on this issue.

GENERAL OR PROPERTY DAMAGES

Safeway asserts that the trial court erred in classifying the awards for mental anguish and inconvenience for the destruction of property as general damages, not property damage, under the policy. This argument was not raised below, is not properly before us, and discussion of the issue is unnecessary.

Legal Principles

The scope of appeal and the action to be taken on appeals is set forth in La. C.C.P. art. 2164 :

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

As a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. See Segura v. Frank , 630 So.2d 714 (La. 1994) ; Jacobs v. GEICO Indem. Co. , 52,372 (La. App. 2 Cir. 9/26/18), 256 So.3d 449 ; Burch v. Burch , 51,780 (La. App. 2 Cir. 1/10/18), 245 So.3d 1138 ; U.R.C.A. Rule 1-3.

Discussion

Safeway's argument on appeal on this issue is vague and not well-developed. Essentially, it argues that all items of damages awarded by the trial court should have been classified as property damages. The policy provided a limit of $25,000 for property damage and $15,000 for each instance of bodily injury. Therefore, if the plaintiffs had proven bodily injury, the policy limit would have been $55,000. The trial court awarded a total of $48,500, but Safeway contends that all the damages should have been classified as property damage, subject to a policy limit of $25,000. At the beginning of the trial, the plaintiffs stipulated that they would not seek damages in excess of the policy limits and Safeway stipulated that there was no issue as to liability, only the quantum of damages. There was a discussion between counsel and the court as to whether inconvenience and loss of use damages would be classified as property damage or bodily injury damages. The issue was not resolved, and plaintiffs' counsel stated that the classification issue would be addressed in post-trial briefs. The trial court's total award was $48,500, an amount in excess of the property damage limit of $25,000.

The plaintiffs argue that Safeway did not include any discussion of this issue in its post-trial brief, and did not file any motions for reconsideration or for new trial after the judgment was rendered. Therefore, they contend that any objection to the classification of damages was waived. The plaintiffs maintain that allowing Safeway to argue the issue on appeal would be prejudicial to them because only the declarations page of the policy was introduced into evidence, rather than the entire policy which might have included definitions of bodily injury and property damage.

Although there was some brief discussion of this issue in the trial court, Safeway did not clearly frame it as an issue for decision by the trial court. After the trial court rendered its judgment, Safeway did not file a motion for new trial or employ other procedural means to raise in the trial court an objection to the classification of damages. Safeway failed to properly raise this issue in the trial court and it is not properly before us on appeal.

Even if this issue were properly before us, Safeway chose to introduce into evidence only the declarations page of the policy. The entire policy, which might have included definitions of property damage and bodily injury, along with other definitions and information that might have been pertinent, is not before us. However, given our amendment of the award for inconvenience from $27,000 to $10,000, and our rejection of any award for mental anguish, the total amount of the award is $24,500. This amount falls within the property damage limits of the policy. Therefore, any discussion of this issue is unnecessary.

CONCLUSION

For the reasons stated above, we affirm that portion of the trial court judgment ordering the defendant, Safeway Insurance Company, to pay to the plaintiffs, Jose R. Enriquez and Irma Enriquez, the $1,000 property deductible and $6,750 to each plaintiff, a total award of $13,500, for loss of use of the house. We amend the trial court judgment regarding inconvenience, reducing the award to $5,000 to each plaintiff, for a total ward of $10,000 for this element of damages. We reverse the trial court award to the plaintiffs for mental anguish, finding that entitlement to this element of damages was not proven. Costs in this court are assessed one-half to the plaintiffs, and one-half to the defendant.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART.

      The minimal trial court testimony covered only approximately 30 pages.

      A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues. La. C.C.P. art. 1971. Peremptory grounds for a new trial are set forth in La. C.C.P. art. 1972. A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. La. C.C.P. art. 1973.


source: Caselaw Access Project

author: WILLIAMS, C.J.

license: Public Domain

text:
    Karen C. JONES and Calvin R. Jones, Plaintiffs-Appellants v. FINANCIAL INDEMNITY COMPANY, James A. Frith, Foremost Insurance Company, Sarah L. Coleman, and Farmers Texas County Mutual Insurance Company, Defendants-Appellees
    No. 52,421-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    PATRICK ALAN STEGALL, Shreveport, Counsel for Appellants
    LUNN, IRION, SALLEY, CARLISLE & GARDNER By: Alexander J. Mijalis, Shreveport, Counsel for Appellee, Farmers Texas County Mutual Insurance Company
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   WILLIAMS, C.J.

The plaintiffs, Karen C. Jones and Calvin R. Jones, appeal a trial court judgment which they claim awarded insufficient damages for Karen's injuries resulting from an automobile accident and for Calvin's claim for loss of consortium. The plaintiffs also appeal the trial court's application of Texas law in calculating medical expenses. For the following reasons, we affirm.

FACTS

On October 23, 2013, the plaintiff, Karen C. Jones, a resident of the State of Texas, drove to Shreveport, Louisiana to attend a work-related training session at Willis-Knighton Medical Center. She was stopped at a traffic light at the intersection of Interstate 20 and Greenwood Road. James A. Frith was stopped behind Karen's vehicle when he was rear-ended by a vehicle being driven by Sarah L. Coleman. The collision caused Frith's vehicle to slide into the rear of Karen's vehicle.

At the time of the accident, the vehicle being driven by Coleman was covered by an automobile insurance policy issued and delivered by Foremost Insurance Company; Frith was insured by Financial Indemnity Company; Karen had an uninsured/underinsured motorist insurance policy that was issued by Farmers Texas County Mutual Insurance Company ("Farmers"). Karen's policy was negotiated, issued and delivered in the State of Texas.

Following the accident, Karen, who was 56 years old, drove herself to the emergency room at Willis-Knighton with complaints of pain in her neck and lower back. After being diagnosed with cervical and lumbar strain, Karen was released with prescriptions for a muscle relaxer and pain medication and she was given instructions to follow up with her physician. Thereafter, Karen drove herself back to her home near Dallas, Texas.

Karen had a preexisting back condition due, in part, to injuries she sustained in an automobile accident in 2004. As a result of the injuries from the 2004 accident, Karen underwent a lumber spinal fusion at the L5-S1 level in 2005.

Following the October 2013 accident, Karen was seen by Dr. Richard Marks, her prior back surgeon, on three occasions - November 5, 2013, December 17, 2013, and January 28, 2014 - during which she primarily complained of neck pain. At that time, Dr. Marks noted that Karen's back condition had not changed, with the exception of some degenerative changes, since her post-operative radiological studies in 2006. After receiving conservative treatment, such as oral medication and physical therapy for muscle strengthening, Karen did not return to Dr. Marks' office until February 2016, more than two years after the accident.

On October 7, 2014, Karen filed a lawsuit naming Frith and his insurer, Coleman and her insurer, and Farmers as defendants. Karen alleged that she sustained injuries to her neck and back as a result of the automobile accident. Karen's husband, Calvin Jones, joined the lawsuit claiming loss of consortium. Subsequently, Karen settled her claims with Coleman and her insurer; Frith and his insurer were dismissed from the lawsuit on a motion for summary judgment. The matter proceeded with Farmers, Karen's UM insurer, as the sole defendant.

Subsequently, on July 11, 2017, Farmers filed a motion in limine arguing that the calculation of Karen's medical expenses should be governed by Texas law. Farmers maintained that the policy was issued in Texas to a resident of Texas, and all of Karen's medical treatment (with the exception of the initial emergency room visit) was provided in Texas. Therefore, according to Farmers, the Texas "paid-not-incurred" rule should apply. The trial court granted the motion, concluding that Karen's medical expenses were governed by Texas law.

A bench trial was conducted on January 18, 2018. On the morning of trial, the parties stipulated that Karen's medical expenses through January 28, 2014, totaled $7,593.05, and the expenses incurred thereafter totaled $138,854.86.

As stated above, the evidence adduced at trial established that Karen had injured her back in a previous automobile accident in 2004, and she had undergone a lumbar fusion at L5-S1 as a result of that accident. Following the October 2013 accident, Karen was seen by Dr. Richard Marks, her prior back surgeon on three occasions - November 5, 2013, December 17, 2013, and January 28, 2014. During the first visit, Dr. Marks noted that Karen's back problems were unchanged since 2006. After the three visits to Dr. Marks, Karen did not seek any further treatment for neck and back pain until February 2016.

Karen testified her neck and back pain never resolved and that it had "always been there since the wreck." She explained that she "just lived with [the pain]." According to Karen, she decided to return to Dr. Marks' office when the pain became so "excruciating," that she "could not stand it anymore," and it became difficult to "be normal in any form or fashion." Further, Karen testified that she did not seek medical treatment between January 2014 and February 2016 because she was afraid of having to deal with employment issues.

On cross-examination, Karen testified as follows: the impact from the collision did not cause the airbags in her vehicle to deploy; the photographs depicted minor damage to her vehicle; after the accident, she had difficulty closing the liftgate on her SUV; she did not miss any days from work as a result of the accident; Dr. Marks did not restrict her activities after the accident; she continued to drive around in the Dallas-Fort Worth area doing her job in medical devices/equipment sales; she did not seek medical treatment for her neck or her back between January 2014 and February 2016; and during her deposition in February 2016, she described her pain as "tolerable."

Further, on cross-examination, Karen admitted that according to Dr. Marks' notes from her November 2013 visit, she described her right low back and upper gluteal pain was "mild to moderate." She also admitted that Dr. Marks noted that her back pain was unchanged from before the October 2013 accident; and when she returned to Dr. Marks in February 2016, he noted that she reported "severe" left gluteal pain.

Calvin Jones, Karen's husband, testified as follows: immediately after the accident, he did not notice "anything too much out of the ordinary other than [Karen] was kind of sore and everything like that"; as time passed, he began to notice that Karen was "sleeping more restless" and she had become less active; he "put two and two together" and concluded that Karen was experiencing back pain based on his own prior issues with back pain and lumbar surgery; after he began to question Karen, she admitted that she was having back pain; after the October 2013 accident, Karen stopped doing activities she had enjoyed, such as gardening, going to the movies and attending baseball games; and he was forced to sell his boat because it was "too hard for [Karen] to get on and off the boat" and she could not tolerate being on the boat "unless the lake was absolutely glass smooth."

Dr. Marks testified via a videotaped deposition. Dr. Marks testified as follows: he had known Karen and Calvin for a number of years; he performed lumbar fusions on Karen and Calvin in the past; Karen "did very well" after her surgery in 2005; when he examined Karen in December 2013, her primary complaint was neck pain and stiffness; Karen reported that she had fallen and broken her ankle; and in December 2013, Karen "felt that her back hadn't really changed significantly" since 2006. Dr. Marks further testified that he ordered additional X-rays. With regard to those X-rays, Dr. Marks testified as follows:

No real change. And no real change not only from what had previously been done, but apparently these were compared to what was done a long time ago, six years previously, and it looked really quite similar. So nothing that looked acute. I was concerned not only about what may have happened with this fall, did she make anything worse. It didn't appear to. Her symptoms were worse, but X-rays wise, nothing was worse.

Additionally, according to Dr. Marks' notes, Karen did not complain of back pain when she was examined by him in January 2014. Karen did not return to Dr. Marks until February 2016, at which time she complained of "severe" pain in her lower back. After several visits and diagnostic testing, Dr. Marks recommended that Karen undergo a two-level fusion (L3-4 and L4-5) to improve her symptoms. He also opined that the October 2013 automobile accident "exacerbated Karen's preexisting neck issues and caused new issues." Dr. Marks also testified that he believes the treatment he provided to Karen for her back issues "are definitely related to the [October 2013] wreck." Further, Dr. Marks testified that he believes the accident was a substantial factor in causing Karen's need for back surgery and that the accident was a substantial factor in causing Karen's neck problems.

On cross-examination, Dr. Marks testified as follows: he did not mention back surgery to Karen when he saw her in January 2014; he does not know what, if anything, may have happened to Karen between her January 2014 visit and her February 2016 visit to cause her increased pain; his notes from Karen's January 2014 examination do not contain any reference to back pain; in January 2014, there was no indication, from either diagnostic testing or Karen's subjective complaints, that she would require a two-level fusion; during Karen's initial visit to him in November 2014, her X-rays showed that the level of instability at L4-5 was unchanged from her 2006 medical records; one of the risks of a spinal fusion is that more stress is placed on the levels above the site of the fusion; in January 2014, Karen's neck X-rays showed degenerative changes, which were unchanged from her 2006 X-rays; during the two-year gap in Karen's medical treatment, he does not know whether or not she was taking pain medication or receiving treatment from other physicians; and during his treatment of Karen from February 2016 to March 2017, her neck pain was secondary to her back pain.

Dr. Britain Auer, an orthopedic surgeon, also testified via a videotaped deposition. Dr. Auer testified that he conducted an independent medical examination of Karen on February 9, 2017. He stated that Karen reported to him that she initially experienced neck pain after the accident, and her back pain began approximately one month after the accident. Dr. Auer stated that Karen also reported that her "neck was doing pretty well" and that "she was not interested in any - in having surgery on her neck."

Furthermore, Dr. Auer testified that he agrees with Dr. Marks that Karen needs lumbar surgery. However, he opined that Karen's current back condition and her need for surgery are unrelated to the October 2013 automobile accident. Dr. Auer testified as follows:

[Karen] readily volunteered to me on her history that she didn't have any back pain for a month [following the October 2013 accident]; which I would say is unusual. You know, generally, with respect to the trauma, if a traumatic event is going to cause you symptoms, it will do so within - with - with low back pain within 24 to 48 hours. And she volunteered. I did not ask. I did not prompt. She said: "It didn't really bother me for about a month and then I started having back pain."
So that is one factor that would tell me that the trauma does not necessarily have anything to do with her ongoing symptoms. And then also gaps in treatment. If your back pain started hurting after a month, it does not appear to me from the medical records, unless there are other records I'm not aware of, that she sought any treatment for at least two years. If you go two years doing pretty well, it's pretty difficult for me to connect that to an incident two years ago that is traumatic.
* * *
[I]f it [was] related [to the traumatic event], it would have resulted in ongoing treatment. And sometimes in patients, I mean, they go to a chiropractor, or they go to physical therapy, or go see the doctor and get some medications, but I - from what I've been presented, I see evidence of nothing for - I don't know exactly how many months it is, but at least two years before there were any complaints to her prior surgeon who operated on her, had a relationship with her, and didn't - she just didn't go back. So you would think if you were having a significant amount of pain, you would go back.

Further, Dr. Auer testified that Karen's statements to him corroborated her statements to Dr. Marks in November 2013, i.e. , that her back pain was unchanged from 2006. He opined that Karen's failure to seek medical treatment between January 2014 and February 2016 more than likely means that her low back pain was not severe enough to warrant further medical treatment. He explained as follows:

[S]he did well for a couple of years. And lots of things can happen in a couple of years. She has a very degenerative neck on her MRI, which is genetic, not accident related. And if you do well for two years and then you start having pain, it's more likely, in my opinion, due to your degenerative condition that you were born with and were going to develop than it is from trauma.

On cross-examination, Dr. Auer testified as follows: he reviewed Karen's medical records from Dr. Marks, her post-accident MRI studies, and a CT scan of her cervical spine; he examined Karen in February 2017; Karen "absolutely" had back pain when he examined her in 2017; people who have had a lumbar surgery and people with degenerative spine conditions are more likely to become injured in traumatic events such as automobile collisions; Karen's emergency room records show that she complained of neck pain and low back pain immediately after the collision; the fact that Karen complained of low back pain immediately after the accident does not change his opinion that her current back condition is not related to the accident; and he believes Karen's neck issues are related to the accident "to a certain extent."

After reviewing the evidence, the trial court noted that the damage to Karen's vehicle was "very minor and not visible upon examination without removing the bumper[.]" The court also noted Dr. Marks' admission that Karen's X-rays "both before the motor vehicle accident of October 2013 and after were basically the same albeit with some degenerative conditions present." The trial court concluded that "any back complaints that [Karen] had after January 28, 2014, are more probabl[e] than not related to her pre-existing condition rather than the October 2013 motor vehicle accident." With regard to the injuries to Karen's neck, the trial court stated:

[T]here has been no medical testimony which states that the treatment and complaints after January 28, 2014 are not related to the motor vehicle accident of October 2013. Dr. Marks and Dr. Auer related at least part of her neck problems to the motor vehicle accident of October 2013. Although there was a very long gap in treatment, January 28, 2014 until February 23, 2016, which this Court believes is an extremely long time to go without medical treatment for a condition in which a Plaintiff complains is bothering her on an ongoing bases [sic], the Court does acknowledge the fact that both medical experts testified that her neck complaints are related to the motor vehicle [accident] in question.

The court awarded to Karen damages as follows:

General Damages $22,500.00 Stipulated Medical Expenses (until January 28, 2014) $7,593.05 Medical Expenses for Neck treatment after January 28, 2014 $6,006.79 TOTAL AWARD $36,099.84

The court stated, "The above medical figures after January 28, 2014 are for neck issues only and not for low back treatment after January 28, 2014." Further, the court awarded Karen's husband damages in the amount of $1,500 for loss of consortium.

The plaintiffs now appeal.

DISCUSSION

Karen contends the trial court erred in finding that her lower back problems after January 2014 were not related to the October 2013 automobile accident. She maintains that the October 2013 accident aggravated her preexisting back condition because she "did well" from the time she recovered from her surgery until the accident. According to Karen, the fact that she did not have to undergo any X-rays or medical treatment for her back between 2006 and the October 2013 accident proves that the accident caused all of her current back problems. Further, Karen asserts that Dr. Marks' opinion that all of her neck and lower back problems are related to the accident is entitled to greater weight.

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State Dept. of Public Safety & Corr. , 2001-2123 (La. 9/4/02), 825 So.2d 1134 ; Stobart v. State through Dept. of Transp. & Dev. , 617 So.2d 880 (La. 1993) ; Jewitt v. Alvarez , 50,083 (La. App. 2 Cir. 9/30/15), 179 So.3d 645. Our jurisprudence summarizes the manifest error/clearly wrong standard of review as follows:

To reverse a factfinder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart , supra ; Jewitt , supra .
Even if an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole , supra ; Rosell v. ESCO , 549 So.2d 840 (La. 1989). Moreover, where the factfinder's conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell , supra ; Jewitt , supra .

In the instant case, our review of Karen's medical records reveals that she presented to the emergency room soon after the automobile collision. She complained of pain in her lower back and neck and was diagnosed with muscle strain. Karen was discharged with prescriptions for pain medication and a muscle relaxer, and she was instructed to follow up with her physician. The medical records also reveal that on November 5, 2013, approximately two weeks after the accident, Karen presented to Dr. Marks complaining of neck pain. According to Dr. Marks' progress notes, Karen reported that she experienced "immediate neck pain" after the accident and that she had "no exacerbation of low back pain." Further, Dr. Marks' notes provided:

* * *
As regard to her low back, she continues with mild to moderate right lower back and upper gluteal pain. This, however, is unchanged from what she had noted prior to the motor vehicle accident in this status post 360 fusion patient.
* * *
Given that there is no change in her lumbar symptoms, no specific lumbar evaluation is done today.
* * *

With regard to Karen's radiological studies, Dr. Marks noted some degenerative changes in her back and neck which he felt did not appear to be related to the October 2013 automobile accident. Dr. Marks also noted as follows:

* * *
Presently, we are not getting further study such as an MRI of the lumbar spine as she feels that the symptoms in the low back are quite comparable to what was present prior to the motor vehicle accident. If, however, the symptoms in the low back fail to abate, we would look into this area as well.
* * *

Karen's medical records also reveal that she returned to Dr. Marks on December 17, 2013. Dr. Marks discussed his observations and recommendations for treatment with regard to Karen's neck; however, he did not make any notations regarding any complaints about her back, other than recommending physical therapy to stretch and strengthen her neck, back and gluteal muscles.

Further, the medical records reveal that Karen returned to Dr. Marks on January 28, 2014, complaining of pain in her neck, headache, dizziness and difficulty maintaining her balance. Dr. Marks noted that Karen's cervical X-rays taken that day did not reveal any significant changes from those taken six years prior, other than some "anticipated progression" of the degenerative condition in her cervical spine. Dr. Marks also noted that there were no changes in the obliques "other than again what might be considered a natural progression over a period of years." Dr. Marks' progress notes from that visit do not contain any notations with regard to back pain.

Thereafter, Karen did not return to Dr. Marks' office until February 23, 2016, when she complained of "severe right gluteal pain." A subsequent MRI of Karen's lumbar spine revealed that she had an "approximately 3-mm bulge at the 4-5 level" and a "2 to 2.5-mm disc bulge at L3-4[.]"

The medical records from the visits to Dr. Marks soon after the October 2013 accident revealed that Karen's back condition was degenerative in nature and was unchanged since her X-rays in 2006. Nevertheless, Dr. Marks testified that Karen's back problems were caused by the October 2013 automobile accident. Contrarily, Dr. Auer opined that Karen's back issues were unrelated to the accident.

The trial court noted the minor impact between the vehicles involved in the collision and the inconsequential damage sustained by the vehicles. The court also noted the complaints made by Karen during her visits to Dr. Marks in November 2013, December 2013 and January 2014. Further, the court noted the opinions of both medical experts in this matter. It is apparent from the court's ruling that it found Dr. Auer's testimony, with regard to the cause of Karen's back problems, to be credible. The court reviewed the evidence of record and concluded that Karen's back complaints, after January 2014, were not related to the October 2013 automobile accident. Based on our review of the record in this case, we find that a reasonable factual basis exists to support the trial court's findings. The trial court's determinations are not manifestly erroneous or clearly wrong. This assignment lacks merit.

The plaintiffs also contend the trial court erred in failing to award Karen a "reasonable amount" in general damages. Karen argues that the amount awarded, $22,500, was abusively low and should be increased because the evidence shows that the accident caused the injuries for which she has required medical treatment for at least four years. She maintains that she continues to suffer from neck and back pain as a result of the injuries she sustained in the accident, and Dr. Marks has recommended that she undergo a two-level spinal fusion due to her injuries. Karen asserts that even if this Court finds that her back problems are unrelated to the accident, the award is woefully inadequate to compensate her for "continuous neck pain." Citing Melancon v. Lafayette Ins. Co. , 2005-762 (La. App. 3 Cir. 3/29/06), 926 So.2d 693 ; Stapleton v. Great Lakes Chem. Corp. , 24,386 (La. App. 2 Cir. 5/4/94), 639 So.2d 300 ; Hall v. Folger Coffee Co. , 2002-0920, 2002-0921 (La. App. 4 Cir. 10/1/03), 857 So.2d 1234 ; Gray Ins. Co. v. Hunter , 1999-0497 (La. App. 4 Cir. 9/22/99), 752 So.2d 200 ; and Andrews v. Mosely Well Serv., 514 So. 2d 491 (La. App. 3 Cir.), writ denied, 515 So. 2d 807 (La. 1987), Karen argues that she should have been awarded at least $400,000-$500,000 in general damages.

One damaged through the fault of another is entitled to full indemnification for the damages caused thereby. La. C.C. art. 2315 ; Wainwright v. Fontenot , 2000-0492 (La. 10/17/00), 774 So.2d 70. General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of lifestyle which cannot be definitely measured in monetary terms. Bellard v. American Cent. Ins. Co. , 2007-1335 (La. 4/18/08), 980 So.2d 654. The trier of fact has much discretion in the assessment of general damages.

La. C.C. art. 2324.1. The role of the appellate court in reviewing general damage awards is not to decide what is an appropriate award, but to review the exercise of discretion by the trial court. Wainwright , supra .

As stated above, in the instant case, the trial court awarded damages to Karen "[b]ased upon the medical testimony, evidence of a very minor impact between the vehicles, testimony of the Plaintiff and her husband, the preexisting conditions of Plaintiff, radiographic films, prior medical treatment, the lack of missing work as well as the long gap in treatment[.]" The court noted that, with the exception of a period of time during which she changed jobs, Karen continued to work every day after the accident, performing her employment duties in medical sales throughout the Dallas/Fort Worth area.

As stated above, the medical records established that Karen sought treatment on three occasions after the accident, primarily complaining of pain in her neck. Karen did not return to Dr. Marks until two years later, with complaints of increased back pain and little mention of neck pain. At the time of Dr. Marks' deposition, he was not providing treatment to Karen for any neck complaints. Based on our review of this record, we find that the trial court did not abuse its great discretion in awarding general damages to Karen in the amount of $22,500. This assignment lacks merit.

Karen further argues that the trial court erred in failing to award to her damages sufficient to cover the "full amount of her past medical expenses." According to Karen, the court legally erred in finding that Texas' "paid-not-incurred" law applied to the calculation of her medical expenses.

Louisiana's choice-of-law rules are set forth in La. C.C. arts. 3515 et seq. La. C.C. art. 3515 provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

In Champagne v. Ward , 2003-3211 (La. 1/19/05), 893 So.2d 773, the Louisiana Supreme Court stated that the appropriate starting point in a multistate case is to determine if there is a difference between Louisiana's law and the law of the foreign state. If so, courts should conduct a choice of law analysis, as set forth in La. C.C. art. 3515 et seq ., to determine which state's law applies.

Louisiana law and Texas law differ with regard to the amount of special damages recoverable for medical expenses. Under Louisiana law, one injured through the fault of another is entitled to full indemnification for damages caused thereby. Wainwright , supra ; Caskey v. Merrick Const. Co., Inc. , 46,886 (La. App. 2 Cir. 3/14/12), 86 So.3d 186, writ denied , 2012-0847 (La. 6/1/12), 90 So.3d 442. Further, Louisiana's collateral source rule provides that a tortfeasor may not benefit, and an injured plaintiff's recovery may not be reduced, because of monies received by the plaintiff from any sources independent of the tortfeasor's procuration or contribution.

Bozeman v. State , 2003-1016 (La. 7/2/04), 879 So.2d 692 ; Louisiana Dept. of Transp. & Dev. v. Kansas City Southern Ry. Co. , 2002-2349 (La. 5/20/03), 846 So.2d 734. Thus, under Louisiana law, payments received from the independent source are not deducted from the award the plaintiff would otherwise receive from the tortfeasor. Bozeman , supra .

Contrarily, under Texas law, "recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant." TX CIV PRAC & REM., § 41.0105. Thus, under Texas law, the recovery of damages for Karen's medical bills is limited to only those that have actually been paid or are actually owed, rather than those that have been incurred, billed or invoiced. Consequently, we are compelled to conduct a choice of law analysis to determine whether the Texas "paid-not-incurred" law applies under the facts of this case.

Our review of this record revealed the following contacts with the State of Louisiana:

1. The accident occurred in Shreveport, Louisiana;
2. Coleman, who caused the accident, is a resident and domiciliary of Louisiana;
3. Coleman's automobile insurance policy was issued to her in Louisiana;
4. Coleman is no longer a party in this matter; and
5. Immediately after the accident, Karen received treatment in the emergency room in Louisiana.

Karen's contacts in Texas include the following:

1. Karen is a resident and domiciliary of Texas;
2. Karen's UM insurance policy was formed and issued in Texas;
3. The vehicle on which Karen purchased coverage is registered in Texas;
4. The sole parties remaining in this matter are the plaintiffs, who are residents of Texas, and the UM insurer;
5. With the exception of the initial emergency room visit, all of the medical care rendered to Karen as a result of the accident was provided in Texas; and
6. With the exception of the initial emergency room charges, all of Karen's medical expenses were incurred in Texas.

Under the facts of this case, we find that Texas has a more substantial interest in the application of its laws governing the recovery of medical expenses than Louisiana has in providing a remedy to an out-of-state resident, who was injured while transitorily within the borders of Louisiana, but incurred virtually all of her medical expenses in Texas. Accordingly, we find the trial court did not err in concluding that Texas law applied to the calculation of medical expenses in this case.

Additionally, Karen contends the trial court erred in failing to award damages for future medical expenses. She argues that the medical testimony indicates, and the trial court found, that her neck injuries were caused by the accident. According to Karen, she will require cervical injections for her neck pain for the rest of her life. Karen also asserts that based on the average life expectancy of a woman her age, if she receives one cervical injection per year, damages for her future medical expenses for her neck injury would exceed $97,000. She also argues that she is entitled to damages for future medical expenses for her back surgery.

To recover the cost of future medical expenses, a tort victim must establish the probability of such expenses with supporting medical testimony and estimations of their probable cost. Menard v. Lafayette Ins. Co. , 2009-1869 (La. 3/16/10), 31 So.3d 996. The proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence that those expenses will be medically necessary. Menard , supra ; Terry v. Simmons , 51,200 (La. App. 2 Cir. 2/15/17), 215 So.3d 410.

An award for future medical expenses is by nature highly speculative and not susceptible to calculation with mathematical certainty. When the record establishes that future medical expenses will be necessary, the court should not reject such an award on the basis that the record does not provide the exact value of the necessary expenses if the court can determine from the evidence in the record a minimum amount that reasonable minds could not disagree will be required. Menard , supra . In reviewing a factual finding regarding special damages, the issue is whether the trial court's conclusion was reasonable in light of the record as a whole. Menard , supra ; Rosell , supra .

In this case, Karen testified that she continues to have neck pain that prevents her from doing activities that she once enjoyed. Dr. Marks and Dr. Auer testified that Karen is not a candidate for neck surgery. Dr. Marks testified that by March 2017, Karen's neck pain was secondary to her back pain. With regard to future medical treatment for Karen's neck, Dr. Marks testified that she could benefit from epidural steroid injections approximately three times per year; however, he was unable to say how many years Karen might receive the injections.

Dr. Auer testified that when he examined Karen in February 2017, she reported to him that her "neck was doing pretty well[.]" Dr. Auer testified that "periodically, [Karen] may benefit from physical therapy [and] [s]he could benefit from injections." He stated that if Karen receives facet joint injections for her neck, she would "potentially" receive them three times a year for "as long as they work."

Our review of the record reveals that the medical testimony indicated that Karen's need for future medical treatment for her neck was speculative at best. Dr. Marks and Dr. Auer testified that Karen could "potentially" benefit from cervical injections. However, Karen failed to establish the probability, by a preponderance of the evidence, that the injections would be medically necessary to treat or resolve her neck pain. Therefore, in light of the record as a whole, we find that the trial court's conclusion that Karen was not entitled to an award for future medical expenses was reasonable.

Finally, the plaintiffs contend the trial court erred in failing to award to Calvin Jones a "reasonable amount" for loss of consortium. They argue that the amount awarded, $1,500, constitutes an abuse of discretion, and the award should be increased to at least $10,000.

La. C.C. art. 2315(B) authorizes the recovery of monetary damages for loss of consortium, service, and society by the spouse and children of an injured person. Damages for loss of consortium are general damages; the assessment of which the fact finder is given much discretion. La. C.C. art. 2324.1 ; Brammer v. Bossier Par. Sch. Bd. , 50,220 (La. App. 2 Cir. 11/25/15), 183 So. 3d 606 ; McNeill v. Landstar Ranger, Inc. , 43,362 (La. App. 2 Cir. 6/11/08), 986 So.2d 905, writ denied , 2008-1558 (La. 10/10/08), 993 So.2d 1287.

In general, a claim for loss of consortium has seven elements: (1) loss of love and affection, (2) loss of society and companionship, (3) impairment of sexual relations, (4) loss of performance of material services, (5) loss of financial support, (6) loss of aid and assistance, and (7) loss of fidelity. To be compensable, it is not necessary for a claim for loss of consortium to include damages from each type of loss. Caskey , supra ; Smith v. Escalon , 48,129 (La. App. 2 Cir. 6/26/13), 117 So.3d 576. Proof of any one of these elements is sufficient to support a damage award of loss of consortium. Caskey , supra ; Smith , supra .

During the trial, Karen and Calvin testified that they had been married 23 years. Prior to the accident, Karen did all of the cooking and household chores. With regard to loss of consortium, Karen testified as follows:

[Calvin]'s got to do the vacuuming, he's got to do, you know, sweeping of the floors, he's got to do - help me make the bed in the morning, whereas these are things I was used to doing. So it's - and intimate-wise, it doesn't happen. I mean, I can't - - it just hurts[.]

Calvin testified that Karen continues to work every day and she continues to cook all of their meals. However, according to Calvin, he and Karen are no longer able to do activities they once enjoyed doing together, such as boating, attending baseball games and going to the movies. Calvin also testified that he and Karen hired a housekeeper because Karen is unable to perform household chores such as mopping and vacuuming the floors. Further, he stated that he sometimes vacuums the floors.

The evidence of record shows that because of Karen's injuries, Calvin did some additional household chores such as sweeping and vacuuming. Although, Karen made a vague reference regarding a loss "intimate-wise," Calvin did not mention their sexual relationship. Based on the evidence before us, we cannot say the trial court abused its vast discretion by awarding Calvin $1,500 for his loss of consortium claim. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment. Costs of the appeal are assessed to the plaintiffs, Karen C. Jones and Calvin R. Jones.

AFFIRMED.

      The settlement and motion for summary judgment are not at issue in this appeal.

      Karen reported to Dr. Marks that she experienced symptoms of a concussion immediately following the accident. However, the emergency room record did not reveal such complaints. Karen testified that she received substandard medical treatment in the emergency room and she did not report her symptoms to the emergency room staff.

      Karen explained her two-year delay in returning to see Dr. Marks as follows:
      The main reason why is because when I complained about my back when I had my first wreck [in 2004], my employer, Coloplast, at the time, after I had the back surgery they got ahold of the fact that I could not work as well as I used to. So I did not want my employer to know that I was having difficulty. And if I had taken off to be seeing the doctors, it would have caused an issue.
      In January of the year following my first back surgery [2006], my company basically put me on a 90-day plan because I could not - I did not, in the previous quarter when I had my surgery and came back, was not able to do and perform at the standards of which they wanted.
      So to be honest with you, I was afraid to say anything, so I lived with it.
      * * *

      Calvin Jones testified that Dr. Marks performed a spinal fusion on him in the past.

      Dr. Marks' deposition was viewed by the trial court during the trial.

      The videotape of Dr. Auer's deposition was viewed by the trial court during the trial.

      Dr. Marks' progress notes reveal that between the November visit and the December visit, Karen had tripped, fallen and fractured her right ankle.

      As Dr. Marks noted in his testimony, sometimes, Karen complained of pain in her left gluteal area; at other times, she stated that the pain was in her right gluteal area.

      Unlike the issue in Champagne , supra , the choice-of-law issue herein does not pertain to the interpretation of the UM insurance contract. In Champagne , supra , the Louisiana Supreme Court addressed the issue of choice-of-law for insurance contracts issued in a foreign jurisdiction. In Champagne , the plaintiff was a resident of Mississippi, his vehicle was registered in Mississippi, and the vehicle was covered by a policy of insurance obtained in Mississippi. Nonetheless, the plaintiff sought to have Louisiana law apply to the interpretation of his UM coverage because under Mississippi law, the UM coverage was reduced on a dollar by dollar basis by the amount of liability coverage available from the tortfeasor. The Supreme Court held that even though an accident occurs in Louisiana and involves a Louisiana resident, courts must conduct a choice-of-law analysis to determine which state's law applies. In applying the analysis, the Court ultimately found that Mississippi law applied to the contract of insurance issued in Mississippi.

      In Haygood v. De Escabedo , 356 S.W.3d 390 (Tex. 2011), the Texas Supreme Court stated:
      As a general principle, compensatory damages, like medical expenses, "are intended to make the plaintiff 'whole' for any losses resulting from the defendant's interference with the plaintiff's rights." The collateral source rule is an exception. Long a part of the common law of Texas and other jurisdictions, the rule precludes any reduction in a tortfeasor's liability because of benefits received by the plaintiff from someone else - a collateral source. Thus, for example, insurance payments to or for a plaintiff are not credited to damages awarded against the defendant. "The theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not privy."
      * * *
      The benefit of insurance to the insured is the payment of charges owed to the health care provider. An adjustment in the amount of those charges to arrive at the amount owed is a benefit to the insurer, one it obtains from the provider for itself, not for the insured. [The plaintiff] argues that the adjustment reduces the insured's liability, but the insured's liability is for payment of taxes, if a government insurer, or premiums, if a private insurer, and for any deductible. Any effect of an adjustment on such liability is at most indirect and is not measured by the amount of the adjustment. The collateral source rule reflects "the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor." To impose liability for medical expenses that a health care provider is not entitled to charge does not prevent a windfall to a tortfeasor; it creates one for a claimant[.]
      * * *
      [T]he common-law collateral source rule does not allow [the] recovery ... of medical expenses a health care provider is not entitled to charge.
      * * *
      Id. at 394-96 (internal footnotes omitted).

      Because we have concluded that the trial court did not err in concluding that Karen's back condition, after January 2014, was unrelated to the October 2013 automobile accident, we will not address the argument regarding future medical expenses for Karen's back condition.