author: McCLENDON, J.

text:
    Jacobee LEE v. LOUISIANA BOARD OF TRUSTEES FOR STATE COLLEGES, and Grambling State University
    2017 CA 1431
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 13, 2019
    Jeffrey Mitchell, Monica C. Sanchez, Hugo L. Chanez, Metairie, Louisiana, Counsel for Plaintiff/Appellant, Jacobee Lee
    Brandon J. Decuir, Linda L. Clark, Baton Rouge, LA, Counsel for Defendants/Appellees, The Board of Supervisors for the University of Louisiana System and Grambling State University
    BEFORE; McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

In this personal injury suit, the plaintiff appeals a trial court judgment that found the jury's award for future earning capacity subject to the State's limitation for general damages. For the following reasons, we affirm.

RELEVANT FACTS AND PROCEDURAL HISTORY

Eighteen-year old Jacobee Lee, the plaintiff in this matter, graduated from high school in Shreveport in 2009 and accepted a full basketball scholarship to Grambling State University (GSU) beginning in the fall semester of 2009. On August 14, 2009, Jacobee suffered an exertional heatstroke following a mandatory four-mile outdoor disciplinary run called the Tiger Mix around the campus at GSU. The Tiger Mix was part of an unauthorized basketball team practice at the university. After completing the run, Jacobee made it back to the gym, but shortly thereafter lost consciousness. He was hospitalized for two days, after which he was discharged with diagnoses of heat exhaustion and mild rhabdomyolysis, which is the breaking down of skeletal muscle that can be caused by extreme physical activity. Since the Tiger Mix, Jacobee has suffered elevated creatine phosphokinase (CPK) levels and has been diagnosed with depression, anxiety, and post-traumatic stress disorder (PTSD).

On August 6, 2010, Jacobee filed a Petition for Damages against the Board of Supervisors for the University of Louisiana System and GSU (collectively Grambling) for the personal injuries he suffered as a result of the run. On March 23, 2016, following a seven-day trial, the jury found Grambling at fault for Jacobee's injuries and awarded him $ 2,529,229.00 in damages, as follows:

Past and Future Physical Pain and Suffering $ 200,000.00 Past and Future Mental Pain and Suffering $1,000,000.00 Past Medical Expenses $ 15,229.00 Future Medical Expenses $ 24,000.00 Past Lost Wages $ 90,000.00 Loss of Earning Capacity $ 600,000.00 Loss of Enjoyment of Life $ 600,000.00 _____________ Total $2,529,229.00

Jacobee filed a proposed judgment on April 1, 2016. On April 4, 2016, Grambling submitted its own proposed judgment. The matters were heard by the trial court and taken under advisement. Thereafter, on September 16, 2016, the trial court issued its ruling, finding that the judgment was subject to the State's $ 500,000.00 limitation on general damages. Specifically, the trial court found that past and future physical and mental pain and suffering, loss of earning capacity, and loss of enjoyment of life were all collectively subject to the State's $ 500,000.00 cap on general damages. The trial court signed a judgment on February 13, 2017, awarding Jacobee past and future physical and mental pain and suffering, loss of earning capacity and loss of enjoyment of life in the amount of $ 500,000.00; awarding past medical expenses in the amount of $ 15,229.00; awarding past lost wages in the amount of $ 90,000.00; capping future medical expenses at $ 24,000.00, payable through the Future Medical Care Fund; and awarding expert cost and deposition cost in the amount of $ 29,998.50, in addition to all costs of court and legal interest, for a total amount of $ 659,227.50.

Jacobee has appealed the trial court's judgment. In his sole assignment of error in this appeal, Jacobee asserts that the trial court erred in vacating the jury's future economic losses award as being subject to the State's cap on damages.

DISCUSSION

The Louisiana Governmental Claims Act, LSA-R.S. 13:5101 et seq. , was adopted in 1975 pursuant to an amendment to the Louisiana Constitution giving constitutional status to the proscription against sovereign immunity from substantive tort liability. Fecke v. Board of Supervisors of Louisiana State University , 15-1806 (La. 9/23/16), 217 So.3d 237, 244. See also LSA-Const. art. XII, § 10. The Act establishes procedural rules that apply to any suit in contract or for injury to person or property against the state, a state agency, or a political subdivision of the state. LSA-R.S. 13:5101 ; Fecke , 217 So.3d at 244. The Act limits general damages for personal injury or wrongful death to $ 500,000.00, exclusive of property damages, medical care and related benefits, loss of earnings, and loss of future earnings. LSA-R.S. 13:5106B.

Louisiana Revised Statutes 13:5106B(1) provides:

The total liability of the state and political subdivisions for all damages for personal injury to any one person, including all claims and derivative claims, exclusive of property damages, medical care and related benefits and loss of earnings, and loss of future earnings, as provided in this Section, shall not exceed five hundred thousand dollars, regardless of the number of suits filed or claims made for the personal injury to that person.

Additionally, LSA-R.S. 13:5106C(1) provides:

C. If the state or a state agency or political subdivision is held liable for damages for personal injury or wrongful death, the court shall determine:
(1) The amount of general damages exclusive of:
(a) Medical care.
(b) Related benefits.
(c) Loss of earnings and/or support.
(d) Loss of future earnings and/or support.

Louisiana Revised Statutes 13:5106D(2) defines "loss of future earnings" as "any form of economic loss which the claimant will sustain after the trial as a result of the injury or death which forms the basis of the claim." It is undisputed that both the Board of Supervisors for the University of Louisiana System and GSU are constitutional and statutory agencies of the State of Louisiana.

In his appeal, Jacobee argues that the jury's award for loss of earning capacity is not subject to the State's damages cap, asserting that he sufficiently proved at trial the pecuniary loss he suffered. Specifically, he maintains that the award was for non-speculative future economic losses and is therefore excluded from the $ 500,000.00 statutory cap. To the contrary, Grambling contends that the trial court properly limited the jury award, arguing that the jury's award for "Loss of Earning Capacity" was a general damages award subject to the cap. It argues that Jacobee failed to show with reasonable certainty that the damages awarded were economic losses and not speculative conjecture. Thus, the narrow issue for review is whether, under the particular facts of this case, the trial court correctly determined that the jury's award for "Loss of Earning Capacity" was not an award for "loss of future earnings" as defined in LSA-R.S. 13:5106, and therefore subject to the State's limitation on general damages.

The fourth circuit has addressed this issue in Cooper v. Public Belt R.R. , 03-2116 (La.App. 4 Cir. 10/6/04), 886 So.2d 531, writ denied, 04-2748 (La. 1/28/05), 893 So.2d 75. In Cooper , the court initially noted the difference between "loss of future earnings" and "loss of earning capacity," citing the supreme court case of Folse v. Fakouri , 371 So.2d 1120 (1979). The fourth circuit stated that the supreme court in Folse drew a distinction between a "pecuniary loss" and "loss of earning capacity." Cooper , 886 So.2d at 539. As a result, the Cooper court found that the term "pecuniary loss" as used in Folse was synonymous with "economic loss" as employed in LSA-R.S. 13:5106D(2). Cooper , 886 So.2d at 539. The court then concluded:

By noting that proof of loss of future earning capacity does not require proof of future monetary loss, the Folse opinion reinforces the conclusion of this Court that loss of future earning capacity is not an "economic loss" within the intendment of [LSA-]R.S. 13:5106D(2).
* * *
[I]n addition to the establishment of the $ 500,000.00 limitation subject to the exclusions set forth in [LSA-]R.S. 13:5106B(1), the manner in which those exclusions are specifically referenced again in [LSA-]R.S. 13:5106C(1) emphasizes the legislative consciousness of the specific nature of the enumerated exclusions and concomitantly serves to support the conclusion that the legislature by creating such a specific list did not intend to include items of damage customarily considered separately, such as loss of earning capacity.

Cooper , 886 So.2d at 539. The Cooper court, in finding that "loss of earning capacity" was properly contained within general damages, also stated that because the items excluded from the limitation are "exceptions," they should be strictly construed consistent with the general rules of statutory construction and that this was especially true where the strict construction of the exceptions advanced the public policy expressed in LSA-R.S. 13:5106E of protecting the public health, safety and welfare from the excessive depredations of judgments against public entities. Cooper , 886 So.2d at 539.

Thereafter, in Iles v. Ogden , 09-0820 (La.App. 4 Cir. 2/26/10), 37 So.3d 427, writs denied, 10-0863, 10-0986 (La. 9/3/10), 44 So.3d 694, 695, the fourth circuit considered whether a claim for loss of the value of an inheritance was included in LSA-R.S. 13:5106C(1)(d), "loss of future support." Iles , 37 So.3d at 444. The Iles court agreed with the result in Cooper with regard to the "loss of earning capacity," and noted that the Cooper case did not involve LSA-C.C. arts 1607 and 1608, which were at issue in Iles . However, with regard to the claim for a lost inheritance, the court in Iles concluded that if a claim was properly supported by the record, that is, if the evidence is not speculative and is capable of mathematical calculation, then the loss is a specific damage and not a general damage. Id. In Iles , under the unique and specific facts of that case, the loss of the value of the inheritance could readily be determined from the record, and the precise value of the plaintiff's loss was not speculative, but was ascertainable and essentially a sum certain. Id.

In Menard v. Cox Communications Louisiana, Inc. , 15-1628 (La.App. 1 Cir. 8/31/16) (unpublished) (2016 WL 4586027), writ denied, 16-1902 (La. 12/5/16), 210 So.3d 813, this circuit also recognized the distinction between an award for loss of future earnings and an award for loss of earning capacity in the context of LSA-R.S. 13:5106. We stated that because loss of future earning capacity, unlike loss of future wages, is not necessarily determined by actual loss, Louisiana courts have held that damages for loss of future earning capacity are not "economic losses" and remain subject to the $ 500,000.00 statutory cap on damages under LSA-R.S. 13:5106B(1), and, conversely, damages for loss of future earnings are excluded from the statutory cap on damages. Menard, 15-1628 at p. 7.

In Menard , the plaintiff was employed as a legal secretary prior to her accident. Ms. Menard's vocational rehabilitation expert testified at trial that the accident severely limited Ms. Menard's employability and earnings. Based upon the vocational rehabilitation expert's opinion and Ms. Menard's documented earnings, her economist calculated what Ms. Menard would suffer in future lost wages. Following the submission of evidence, the trial court instructed the jury on the law applicable to loss of future income and submitted a verdict form to the jury that listed future loss of wages as a compensable item of damages. There was no objection to the jury instructions or the jury verdict form concerning the itemization of compensable damages. Accordingly, this court found no error in the jury's award of damages for future loss of wages based on the evidence introduced at trial, which was excluded from the statutory cap under LSA-R.S. 13:5106B(1). Id.

Shortly thereafter, the supreme court decided the Fecke case. In Fecke , the plaintiff was unemployed at the time of an injury to her ankle, although she was just two weeks from graduating with her Bachelor of Science in Kinesiology. Thereafter, she returned to school to obtain a certification as a physical therapist assistant. She began working as a physical therapy assistant, but the job entailed long hours of standing, walking and weight-bearing activity, all of which proved difficult with her injured ankle. As a result, by the time of trial, plaintiff had already changed employment to a less demanding physical therapy assistant position with fewer hours and less pay. At trial, the Feckes' expert vocational rehabilitation consultant and life care planner testified with specificity regarding plaintiff's education, work history, current earnings and future vocational prospects, in light of her physical limitations which would affect her future earnings. Also, the Feckes' expert in the projection of economic losses, Harold Asher, reviewed the vocational rehabilitation consultant's report regarding future life care and calculated plaintiff's economic outlook, including loss of future earnings. Fecke , 217 So.3d at 253.

The supreme court concluded that the expert testimony and reports of the two witnesses established that the plaintiff's future loss of earnings was pecuniary in nature, rather than speculative and uncertain. Accordingly, the Fecke court determined that the jury instruction and verdict form citing "loss of future earnings" were proper and not an abuse of the trial court's discretion. Id.

With this framework in mind, we now turn to the case before us. At trial, Jacobee testified that he made the varsity basketball team at the end of his sophomore year at Huntington High School. Jacobee stated that he was an average student, but was hoping for a basketball scholarship in college. He testified that he signed with GSU early in his senior year to play basketball and that he attended two sessions of summer school at both Southern University in Shreveport (SUSLA) and GSU in the summer of 2009 in order to raise his grade point average (GPA) to be eligible to play basketball. Jacobee made a 3.0 GPA in both sessions. Jacobee testified that he chose Grambling University because it was a family school, stating that his grandfather, aunts, and uncle went there, and that Grambling promised to help him academically, with study halls and tutoring. He also stated that his mother is a college graduate, as are his grandmother and several members of his family.

After the Tiger Mix, Jacobee did not rejoin the team, struggled academically, and eventually withdrew from the university at Christmas. Jacobee enrolled at SUSLA for the spring 2010 semester. One weekend in February of 2010, Jacobee played in a basketball tournament. A few days later, Jacobee was admitted to the hospital with fever, a skin disorder, and a urinary tract infection. Jacobee had a CPK level of 7955. After being in the hospital for one week, Jacobee withdrew from SUSLA citing medical reasons. He reenrolled and attended SUSLA in the fall of 2010 and the spring of 2011. Jacobee then left SUSLA and enrolled at Stephen F. Austin State University in Nacogdoches, Texas, but did not do well there and withdrew from school. At that time, Jacobee had earned fifty hours towards a college degree with an overall GPA of 2.58. Subsequently, Jacobee began working and has not returned to college. At the time of trial, Jacobee was working selling phones and phone plans, making minimum wage.

While in the hospital in February of 2010, Dr. Robert Goodman, a rheumatologist, was called in to try to determine the cause of Jacobee's elevated CPK level. According to Dr. Goodman, Jacobee experienced a second episode of rhabdomyolisis after playing basketball in February of 2010. It was his opinion that, because of the Tiger Mix, Jacobee would no longer be likely to play college or professional basketball and that Jacobee's other future job opportunities were limited as well, stating that employment such as heavy manual labor or the military were no longer viable options.

Todd S. Capielano, Jacobee's vocational rehabilitation consultant, testified that, until the Tiger Mix, Jacobee's actions were more and more in line with his dream to play basketball. Mr. Capielano testified that basketball was Jacobee's focus, which kept him motivated to get his degree. Mr. Capielano stated that while Jacobee was not a star student, he was motivated and had potential. Jacobee needed structure, and with academic support systems in place, Mr. Capielano believed that Jacobee would have graduated from college. Mr. Capielono testified that this was taken away from him because of the Tiger Mix. Mr. Capielano stated that, after the Tiger Mix, Jacobee was going to be limited to entry level lower skill to semi-skill types of employment, like a call center operator or a customer service representative, which matched Jacobee's interests and were in line with the results of his testing. Further, a military career, which Jacobee had expressed an interest in, was no longer possible because of the physical exertion requirements.

Harold Asher, a certified public accountant and Jacobee's expert in the field of damage calculation and economic losses, formed an opinion regarding Jacobee's loss of economic capacity. Mr. Asher provided three different employment scenarios. The first scenario was where Jacobee graduated with a bachelor's degree and started to work. According to Mr. Capielano, Jacobee's average earnings over his work life would be $ 54,000.00 a year compared to jobs of $ 25,743.00 per year average, which was what he was currently able to make. The second scenario was where Jacobee graduated and played professional basketball internationally for ten years. Although salaries varied widely, between $ 15,000.00 and $ 500,000.00 per year, Mr. Asher used a salary at the lower end of $ 40,000.00 per year. After ten years, Jacobee would then become a college basketball coach. Mr. Asher testified that basketball coaches and assistants make between $ 80,000.00 and $ 400,000.00 a year. As an assistant coach, Mr. Asher used the amount of $ 80,000.00 per year for Jacobee. The third scenario involved a situation where Jacobee actually had a skill set that would have allowed him to go from the low end of $ 15,000.00 internationally per year to $ 450,000.00 a year at the end of his tenth year. Under that scenario, Jacobee would then retire and become a college assistant basketball coach starting at $ 80,000.00 and ending at $ 120,000.00 per year. Under the first scenario, Mr. Asher calculated a loss of $ 1,406,404.00. The middle scenario resulted in a loss of about $ 2.4 million dollars, and under the third scenario, Mr. Asher calculated a $ 5,489,162.00 loss.

Grambling's own forensic economic expert, Dr. Robert Hebert, testified at trial. Dr. Hebert first critiqued Mr. Asher's report, finding it exaggerated, and made his own calculations. The calculations were based on two alternatives, that is, a non-sports-related career path and a sports-related career path. Dr. Hebert compared both Mr. Capielano's calculations and those of Gramblings's vocational rehabilitation expert, Sandra Kreuter, which he included in his report in summary tables. According to Dr. Hebert, if, but for the events of August 14, 2009, Jacobee would have earned the average wage income of a black male with a bachelor's degree, the discounted present value of his potential lost earning capacity was between $ 367,804.00 (based on Ms. Kreuter's assessment) and $ 661,525.00 (based on Mr. Capielano's assessment). Also, in the non-sports-career path, if, but for the Tiger Mix, Jacobee would have earned the average wage income of an entry-level computer specialist with some college but no degree, the discounted present value of his future potential lost earning capacity was between zero (Ms. Kreuter) and $ 629,101.00 (Mr. Capielano). Further, on the sports-career path, if, but for the Tiger Mix, Jacobee had pursued a professional basketball career through a player development league with subsequent employment as a coach or scout, the discounted present value of his potential lost earning capacity was between zero (Ms. Kreuter) and $ 269,357.00 (Mr. Capielano).

After the submission of evidence, the trial court instructed the jury on the law, including the law applicable to loss of future earning capacity. The trial court did not instruct the jury on the law applicable to loss of future earnings, nor did the jury verdict form include future lost wages. Grambling did not object to the jury instructions or to the jury verdict form listing "Loss of Earning Capacity" as an item of damages. Accordingly, the jury awarded Jacobee $ 600,000.00 in damages for his loss of earning capacity.

Based on the evidence presented, we are unable to say that Jacobee proved that he suffered a loss of future earnings. The present case is unlike the Fecke case wherein the plaintiff was pursuing her career as a physical therapist assistant. Ms. Fecke did graduate and returned to school to obtain a certification as a physical therapist assistant, after which she began working as a physical therapy assistant. However, because of her injury, Ms. Fecke was required to change employment to a less demanding physical therapy assistant position with fewer hours and less pay. Ms. Fecke was already in a certain career or profession, but she could not continue in that job because of her injury. The evidence presented, including detailed evidence of her education, work history, current earnings, and future vocational prospects, was very specific and established with reasonable certainty her loss of future earnings. Similarly, in Menard , Ms. Menard had been employed as a legal secretary and presented evidence of her earnings. Ms. Menard's economic expert was able to calculate future lost wages based on the documented evidence.

In comparison, Jacobee had just begun college when he was injured. He was at least four years from a college bachelor's degree. It was uncertain whether he would have graduated from college. His career or professional path had not yet been decided. Mr. Asher, Jacobee's own expert in damage calculation, testified that his calculations were based on Jacobee's loss of economic capacity. What Jacobee suffered was a loss of his potential, or earning capacity, rather than a loss of future earnings. The jury's award of $ 600,000.00 in damages was estimated on his potential to earn money in the future and was not an award for "economic loss" that he would sustain in the future. Accordingly, it is a general damage award and subject to the State's $ 500,000.00 liability cap, pursuant to LSA-R.S. 13:5106B(1). Because the jury's award was a larger amount than Jacobee was statutorily entitled to receive, the trial court appropriately corrected the jury's award for general damages. Therefore, we find that the trial court correctly held that the jury's award for "Loss of Earning Capacity" was subject to the State's limitation on general damages.

CONCLUSION

For the above reasons, the February 13, 2017 judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff, Jacobee Lee.

AFFIRMED.

Welch, J. dissents & assigns reasons.

WELCH, J., dissents.

I respectfully disagree with the majority opinion because it erroneously affirms the trial court's determination that the jury's award of $ 600,000 for the plaintiff's loss of earning capacity was subject to the State's $ 500,000 limitation on liability for general damages. The majority opinion is clearly contrary to the Louisiana Supreme Court's ruling in Fecke v. Board of Supervisors of Louisiana State University , 2015-1806 (La. 9/23/16), 217 So.3d 237, which notably, was decided one week after the trial court issued its ruling herein that the plaintiff's loss of earning capacity was subject to the state's cap on general damages.

Fecke unequivocally held that if future economic losses are proven with expert testimony, such evidence is sufficient to establish that such loses are pecuniary in nature, rather than speculative and uncertain, and as such, are not subject to the State's damage cap. Furthermore, Fecke does not allow the trial court to decide, after the fact, whether the expert testimony with regard to future economic losses is sufficiently credible for the jury's award to be pecuniary or speculative. Herein, the plaintiff offered expert testimony-as did Grambling-as to the plaintiff's future economic losses and that testimony established that his future loss of earning was pecuniary in nature; thus, it was not subject to the state's damage cap.

Furthermore, the majority opinion is also inconsistent with the manner in which the loss of earning capacity award was handled in the case involving Jacobee's teammate, Henry White, who likewise suffered a heatstroke and died as a result of the Tiger Mix. See Williams v. Board of Supervisors of the University of Louisiana System , 48,763 (La. App. 2nd Cir. 2/26/14), 135 So.3d 804 (wherein the jury's award of $ 780,000 for Henry White's loss of earning capacity was apparently not subject to the state's cap on general damages, as judgment was rendered in the plaintiff's favor for the sum of $ 1,595,771.00).

Accordingly, I would amend the judgment of the trial court to include, in accordance with the jury's verdict, an additional award of $ 600,000 for the plaintiff's loss of earning capacity, which would provide for a judgment in the total amount of $ 1,259,227.50.

Thus, I respectfully dissent.

      For a more complete recitation of the facts, see Lee v. Louisiana Board of Trustees for State Colleges , 2017 CA 1433, --- So.3d ----, 2019 WL 1198551, also decided this date.

      The medical evidence shows that Jacobee suffered a heatstroke rather than heat exhaustion.

      CPKs are muscle enzymes. The level of these muscle enzymes rise as the muscle is destroyed. When Jacobee was admitted to the hospital after the Tiger Mix, his CPK level was 651. A normal CPK level is between 35 and the low 200s.

      In Mr. Lee's petition, the Board of Supervisors for the University of Louisiana System was incorrectly identified as the Louisiana Board of Trustees for State Colleges.

      On April 4, 2016, Jacobee also filed a Motion for Judgment on Offer of Judgment and to Tax Costs. On September 16, 2016, the trial court denied Jacobee's motion for judgment on offer of judgment and ruled on the motion to tax costs. The trial court signed that judgment on February 13, 2017. The denial of the motion for judgment on the offer of judgment is the subject of the related case of Lee v. Louisiana Board of Trustees for State Colleges , 2017 CA 1432, 275 So.3d 15, 2019 WL 1198390, also decided this date.

      Louisiana Revised Statutes 13:5101 provides:
      A. This Part shall be known and may be cited as the "Louisiana Governmental Claims Act".
      B. This Part applies to any suit in contract or for injury to person or property against the state, a state agency, an officer or employee of the state or a state agency arising out of the discharge of his official duties or within the course and scope of his employment, or a political subdivision of the state, as defined herein, or against an officer or employee of a political subdivision arising out of the discharge of his official duties or within the course and scope of his employment. The provisions of this Part shall not supersede the provisions of R.S. 15:1171 et seq. or R.S. 15:1181 et seq.

      After the supreme court declared LSA-R.S. 13:5106 unconstitutional in 1993, holding that the $ 500,000.00 cap on general damages in a personal injury suit against the State contravened the proscription against sovereign immunity from tort liability provided for in LSA-Const. art. XII, § 10 (A), the legislature proposed a constitutional amendment to the article, which was approved by the voters in 1995. Also in 1995, the legislature increased the maximum liability of the State for general damages in wrongful death cases at $ 750,000.00. Fecke , 217 So.3d at 244-45. Thereafter, in an effort at tort reform, the legislature in 1996 amended LSA-R.S. 13:5106B to limit general damages in suits against the state, a state agency, or political subdivision for personal injury or wrongful death to $ 500,000.00. Id.

      The Folse court stated:
      Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.
      Folse , 371 So.2d at 1124.

      Louisiana Revised Statutes 13:5106E provides:
      E. The legislature finds and states:
      (1) That judgments against public entities have exceeded ability to pay on current basis.
      (2) That the public fisc is threatened by these judgments to the extent that the general health, safety, and welfare of the citizenry may be threatened.
      (3) That the limitations set forth in this Section are needed to curb the trend of governmental liability abuses, to balance an individual's claim against the needs of the public interests and the common good of the whole society, and to avoid overburdening Louisiana's economy and its taxpaying citizens with even more new and/or increased taxes than are already needed for essential programs.
      (4) That the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the constitution.

      Although the Menard case was decided before the supreme court's decision in Fecke , we find instructive its discussion therein regarding loss of future earnings and loss of earning capacity in the context of LSA-R.S. 13:5106.

      We note that Mr. Asher is also Jacobee's expert economist in this matter.

      Testimony at trial indicated, however, that even before the Tiger Mix Jacobee was not very strong in math and science and, although he expressed an interest in computer science, a career in that field did not seem likely.

      The trial court's closing instructions included the following:
      Loss of earning capacity damages are damages for the plaintiff's ability to earn money in the future and not what he actually earned before the injury. When determining loss of earning capacity, the damages are estimated on the injured person's ability to earn money in the future. It must be proved by a preponderance of the evidence and it requires the presentation of medical evidence which indicates with reasonable certainty that there exists a residual disability causally related to the injury. It is not a loss of earnings, but rather a loss of future earning capacity. You should consider whether and how much his current condition disadvantages him in the work force.

      We note that in both Fecke and Menard , the jury instructions and jury verdict form were regarding future lost wages as opposed to loss of earning capacity.

      Additionally, in response to interrogatories in which Grambling requested that Jacobee itemize the damages he sustained, Jacobee responded, in his supplemental answer, that he suffered a loss of earning capacity.


source: Caselaw Access Project

license: Public Domain

text:
    Jacob STEVENSON, Jesse Stevenson, Individually and on Behalf of His Minor Son, Logan Stevenson v. PROGRESSIVE SECURITY INSURANCE COMPANY and Anthony J. Leblanc
    2018 CA 1105
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MARCH 25, 2019
    A. Catharina Vastbinder, Nicholas J. Zeringue, Thibodaux, Louisiana, Counsel for Plaintiffs/Appellants, Jacob Stevenson, Jesse Stevenson, individually and on behalf of his minor son, Logan Stevenson
    John J. Erny, III, Metairie, Louisiana, Counsel for Defendants/Appellees, Progressive Security Insurance Company and Anthony J. Leblanc
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

The plaintiffs seek review of a judgment that granted the defendants' exception raising the objection of prescription and dismissed plaintiffs' action against the defendants. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises out of a car accident that occurred on December 13, 2016. Jesse Stevenson and Logan Stevenson were passengers in a vehicle driven by Jacob Stevenson. As a result of the accident, the Stevensons filed suit against Anthony J. Leblanc, Jr., the other involved driver, and his insurer, Progressive Security Insurance Company, on December 14, 2017. The defendants answered the petition and filed an exception raising the objection of prescription. The plaintiffs opposed the exception, citing a series of unfortunate events as the cause of their inability to file the petition on the final day of the prescriptive period.

Plaintiffs' counsel obtained the plaintiffs' file from their previous attorney on December 13, 2017 at 2:00 p.m. As counsel was preparing the petition for filing, an electrical breaker tripped in her law office followed by a power surge. This delayed counsel's ability to complete the petition prior to 4:30 p.m., the close of the clerk of court's normal business hours. Counsel attempted to fax file the petition with the Terrebonne Parish Clerk of Court at 4:57 p.m. on December 13, 2017. She tried several more times, to no avail. Unbeknownst to plaintiffs' counsel, the Terrebonne Parish Clerk of Court's fax machines are turned off at 4:30 p.m. Consequently, the petition was not filed until December 14, 2017, the day after the prescriptive period expired. Because the petition was filed "only one day late" and because the defendants were aware of the plaintiffs' claims, the plaintiffs argued that the defendants were not prejudiced by the delinquent filing and, therefore, the exception should be denied.

The plaintiffs further argued that the exception should be denied because Progressive interrupted prescription by acknowledging its obligation, and since Progressive and Leblanc are solidary obligors, Progressive's acknowledgment also interrupted prescription against Leblanc. To support this argument, the plaintiffs relied on letters sent by Progressive to the plaintiffs' prior counsel on April 4, 2017 and June 20, 2017. In its April 2017 letters, Progressive acknowledged the letter of representation received on behalf of each plaintiff and stated, "In order to properly evaluate your client's claim, please forward to us copies of supporting documentation as you receive it." Similarly, in June 2017, Progressive requested documentation to complete its investigation of the plaintiffs' claims for medical and economic damages. At that time, Progressive also advised the plaintiffs of its insured's policy limits. According to the plaintiffs, this communication, coupled with Progressive's failure to expressly deny liability, amounted to an acknowledgment of the plaintiffs' rights against the defendants which served to interrupt prescription. The defendants disputed this contention, arguing that Progressive's effort to obtain information and potentially negotiate a settlement was not an acknowledgment of any alleged obligation owed to the plaintiffs.

The trial on the exception took place on March 19, 2018. The trial court rejected the plaintiffs' arguments, particularly finding that Progressive did not acknowledge an obligation allegedly owed to the plaintiffs, and granted the defendants' exception, dismissing the plaintiffs' suit. A judgment was signed on April 11, 2018.

The plaintiffs appealed, asserting that the trial court erred in granting the exception of prescription, because: (1) the plaintiffs attempted to timely file the petition before the accrual of prescription, (2) the defendants interrupted prescription by acknowledging their obligation to the plaintiffs, and (3) the rules of procedure are not "intended to be an end in themselves" and there would be no injustice against the defendants by maintaining the action.

DISCUSSION

The objection of prescription may be raised by a peremptory exception. LSA-C.C.P. art. 927A(1). Ordinarily, the party urging an exception of prescription bears the burden of proving that the prescriptive period has elapsed. However, if the plaintiff's claims are prescribed on the face of the petition, the burden shifts to the plaintiff to prove that the prescriptive period has not elapsed. Calloway v. Lobrano, 16-1170 (La.App. 1st Cir. 4/12/17), 218 So.3d 644, 650. Evidence may be introduced to support or controvert an exception of prescription. LSA-C.C.P. art. 931. When evidence is introduced and evaluated at the trial of an exception of prescription, the trial court is not bound to accept as true the allegations of the plaintiff's petition, and an appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions. Krolick v. State ex rel. Dep't of Health & Human Res., 99-2622 (La.App. 1st Cir. 9/22/00), 790 So.2d 21, 25, writ denied. 00-3491 (La. 2/9/01), 785 So.2d 829. See also Calloway, 218 So.3d at 650. Pursuant to this standard, the trial court's ruling must be affirmed unless a reasonable factual basis does not exist for the finding of the trial court, and the record establishes that the finding is clearly wrong. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

The prescriptive period applicable in the case sub judice is the one-year liberative prescription for delictual actions, commencing the day the injury or damage is sustained. LSA-C.C. art. 3492. This statute, like all prescription statutes, is strictly construed against prescription and in favor of maintaining the cause of action. Martin v. Decker, 07-1838 (La.App. 1st Cir. 3/26/08), 985 So.2d 752, 755, writ denied. 08-1405 (La. 10/3/08), 992 So.2d 1014. The accident giving rise to the instant suit occurred on December 13, 2016; therefore, the Stevensons' petition, filed on December 14, 2017, was prescribed on its face. Accordingly, the plaintiffs bore the burden of proof to show that the action was not prescribed. Hanley v. Allstate Ins. Co., 18-0433 (La.App. 1st Cir. 11/28/18), 267 So.3d 110, 112-13, 2018 WL 6204949, *2.

ASSIGNMENTS OF ERROR ONE AND THREE: Attempt to File and Lack of Prejudice

Prescription is interrupted when the obligee commences an action against the obligor in a court of competent jurisdiction and venue. LSA-C.C. art. 3462. A civil action is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction. LSA-C.C.P. art. 421.

Louisiana Code Civil Procedure art. 253 provides, in part:

A. All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of the court for such purpose. The clerk shall endorse thereon the fact and date of filing and shall retain possession thereof for inclusion in the record, or in the files of his office, as required by law. The endorsement of the fact and date of filing shall be made upon receipt of the pleadings or documents by the clerk and shall be made without regard to whether there are orders in connection therewith to be signed by the court.
B. The filings as provided in Paragraph A of this Article and all other provisions of this Chapter, may be transmitted electronically in accordance with a system established by a clerk of court. When a clerk of court establishes such a system, he shall adopt and implement procedures for the electronic filing and storage of any pleading, document, or exhibit. The official record shall be the electronic record. A pleading or document filed electronically is deemed filed on the date and time stated on the confirmation of electronic filing sent from the clerk of court. Public access to electronically filed pleadings and documents shall be in accordance with the rules governing access to written filings. [Emphasis added.]

Similarly, Louisiana's fax filing statute, LSA-R.S. 13:850, provides, in part:

A. Any document in a civil action may be filed with the clerk of court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time the facsimile transmission is received by the clerk of court. No later than on the first business day after receiving a facsimile filing, the clerk of court shall transmit to the filing party via facsimile a confirmation of receipt and include a statement of the fees for the facsimile filing and filing of the original document. The facsimile filing fee and transmission fee are incurred upon receipt of the facsimile filing by the clerk of court and payable as provided in Subsection B of this Section. The facsimile filing shall have the same force and effect as filing the original document, if the filing party complies with Subsection B of this Section. [Emphasis added.]

As the defendants point out, neither LSA-C.C.P. art. 253 nor LSA-R.S. 13:850 require Louisiana clerks of court to accept electronic filings after the close of business. Instead, the legislature has given clerks of court broad discretion to develop and implement electronic filing procedures appropriate for the needs of their parish and the court's capabilities. For instance, the Deputy Clerk for the Terrebonne Parish Clerk of Court explained, via affidavit submitted by the plaintiffs, that the clerk's fax machines are turned off at 4:30 p.m. because the machines "encounter problems, such as paper jams, with high volume filings being filed after hours." The Deputy Clerk further advised that the fax machines may be left on or an employee of the clerk's office may remain at the office after the close of business if an attorney advises the clerk's office that she intends to file a pleading after 4:30 p.m. Plaintiffs' counsel apparently did not contact the clerk's office prior to the close of business on December 13, 2017 to inquire about the clerk's procedure. Counsel admits that "a simple telephone call to the Terrebonne Parish Clerk of Court's Office would have been able to cure the dilemma."

Jurisprudence interpreting LSA-R.S. 13:850 demands mandatory satisfaction of the statute's requirements. See Taylor v. Bayou Fabricators, 09-0317 (La.App. 1st Cir. 9/11/09), 22 So.3d 186, 189 ; Smith v. St. Charles Parish Public Schools, 17-475 (La.App. 5th Cir. 5/1/18), 246 So.3d 821, 825 writ denied, 18-1001 (La. 10/8/18), 253 So.3d 802 ; Antoine v. McDonald's Restaurant, 98-1736 (La.App. 3rd Cir. 5/5/99), 734 So.2d 1257, 1260, overruled on other grounds by Hunter v. Morton's Seafood Restaurant & Catering, 08-1667 (La. 3/17/09), 6 So.3d 152.

Louisiana Revised Statute 13:850(A) unambiguously provides that the filing will not be deemed complete until the clerk of court receives the facsimile transmission. When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. LSA-R.S. 1:4. Borcik v. Crosby Tugs, L.L.C., 16-1372 (La. 5/3/17), 222 So.3d 672, 675. This court recently confirmed that a facsimile transmission is deemed timely, even if transmission is received after the regular business hours of the clerk's office, so long as the transmission is before the midnight deadline of the delay period. See Brehm v. Amacker, 15-1531 (La.App. 1st Cir. 12/7/17), 236 So.3d 621, 629. Here, it is undisputed that the plaintiffs did not attempt to fax file the petition prior to 4:30 p.m. when the clerk's office closed. It is further undisputed that the clerk's office never received the fax transmission. In fact, the clerk's office did not receive the petition until it was hand-delivered the day after prescription expired. Under these facts, we cannot find that the plaintiffs' failed attempt to fax file the petition was sufficient to interrupt prescription.

The plaintiffs cite Antoine; Ruello-Nicaud v. Allstate Ins. Co., 98-0610 (La.App. 4th Cir. 4/15/98), 714 So.2d 55, writ denied, 98-1308 (La. 6/26/98), 719 So.2d 1062 ; and Lloyd v. Monroe Transit Auth. ex rel. City of Monroe, 50,292 (La.App. 2nd Cir. 1/13/16), 185 So.3d 866, writ denied sub nom., Lloyd v. Monroe Transit Auth. ex rel. City of Monroe, 16-0277 (La. 4/8/16), 191 So.3d 585, and urge this court to follow precedent from the Second, Third, and Fourth Circuits, which they contend holds that an attempt to timely fax file the petition is sufficient to interrupt prescription. Upon our review of these cases, we find that neither Antoine nor Ruello-Nicaud support the plaintiffs' position. Further, we decline to follow Lloyd, finding it to be in direct conflict with the clear requirement of LSA-R.S. 13:850(A) that the document be received by the clerk of court for facsimile filing to be deemed complete.

In Antoine and Ruello-Nicaud, the plaintiff's petition was actually transmitted to the clerk's office prior to the expiration of the prescriptive period. Neither court addressed the issue of whether an unsuccessful attempt to fax file was sufficient to interrupt prescription. In Antoine, the Third Circuit concluded that, had the plaintiff satisfied the remaining requirements of LSA-R.S. 13:850, the fax filed petition would have interrupted prescription because it was timely received by the clerk's office. The court further found that the purpose of the statute is carried out by looking to the fax filing as complete for prescription purposes upon receipt of the transmission by the clerk's office. Antoine, 734 So.2d at 1260. In Ruello-Nicaud, the Fourth Circuit held that suit was commenced, for purposes of LSA-C.C. art. 3462, when the plaintiff successfully faxed the petition to the clerk's office at 5:20 p.m. on the last day of the prescriptive period. Although the clerk's office did not send receipt of the fax within the prescriptive period, the court found that prescription was timely interrupted. Ruello-Nicaud, 714 So.2d at 56.

Lloyd appears to be the only Louisiana case where an unsuccessful attempt to fax file a petition on the final date of the prescriptive period was deemed sufficient to interrupt prescription. In Lloyd, counsel first attempted to fax file the petition at 4:24 p.m., before the close of business. The clerk's fax machine was busy at the time, so counsel attempted to resubmit the fax throughout the evening, without success. Counsel was unaware of the clerk of court's procedure to turn off the fax machine at the close of regular business hours. Lloyd, 185 So.3d at 867. As a result, the petition was not filed until the following day, after the expiration of the prescriptive period. The trial court denied the defendants' exception of prescription, finding that the actions of the clerk's office regarding the operation of its fax machine were beyond the plaintiff's control and operated to shorten the prescriptive period. Id. at 868. The Second Circuit affirmed the judgment of the trial court and reasoned that, once the clerk has implemented electronic filing capabilities and procedures for its office, "the official record shall be the electronic record." Id. at 870, citing LSA-C.C.P. art. 253(B). The appellate court found that the electronic record established that the plaintiff elected to use the fully authorized electronic filing system in a timely manner. Id. at 870-71.

As previously discussed, we find Lloyd to be in conflict with the clear and unambiguous language of LSA-R.S. 13:850(A). In doing so, we recognize the inequity in the current law that allows clerks of court in Louisiana the discretion to implement electronic filing procedures that are not uniform. Revision of the statutes for electronic filing procedures is needed to ensure uniformity across the state in order to eliminate the possibility that an attempt to fax file a petition at 4:57 p.m. will be unsuccessful, and, therefore, untimely, because the clerk's fax machine was turned off at 4:30 p.m. Under the current law that same 4:57 p.m. filing may have been timely in another clerk's office. This is inequitable and unjust; nevertheless, we are constrained to follow the current law.

The plaintiffs also argue that the purpose of the rules of prescription, i.e. avoiding prejudice to defendants by requiring them to defend a stale claim, is not advanced in this instance since the defendants were aware of the plaintiff's claims and suit was filed the day after the prescriptive period expired. We find this argument unpersuasive.

In Flowers v. U.S. Fid. & Guar. Co., 381 So.2d 378 (La. 1979), the Louisiana Supreme Court, on rehearing, affirmed the lower courts' grant of the defendants' exception of prescription. There, the plaintiff filed suit less than one month following the expiration of the prescriptive period. Id. at 381. The defendant was aware of the plaintiff's claim and participated in settlement negotiations prior to the expiration of the prescriptive period. Nevertheless, the supreme court found the claims were prescribed, without discussing whether the defendant was prejudiced by the untimely filing. Id. at 383. See also Safeco Ins. Co. v. Norcold, Inc., 12-0755 (La.App. 1st Cir. 2/25/13), 113 So.3d 1104. Safeco insured an RV that erupted in fire allegedly due to faulty refrigerator parts, which were distributed by Norcold. An investigation ensued throughout the year following the fire, during which the parties communicated, until Safeco ultimately filed suit against Norcold for reimbursement of funds paid on the claim. Although Safeco's suit was filed less than fifteen days past the expiration of the prescriptive period, this court nonetheless affirmed the judgment of the trial court maintaining Norcold's exception of prescription without regard to whether the defendant was prejudiced. Safeco Ins. Co., 113 So.3d at 1109. Similarly, in Barbarin v. Wal-Mart Stores, Inc., 01-669 (La.App. 5th Cir. 11/27/01), 804 So.2d 116, the parties had numerous discussions about the plaintiff's claims prior to the expiration of the prescriptive period. The plaintiff timely filed suit, in the wrong venue, on the final day of the prescriptive period. Id. at 117. Therefore, the court found that, pursuant to LSA-C.C. art. 3462, prescription was not interrupted. Id. at 118. After the suit was transferred to the proper venue, the trial court granted the defendants' exception of prescription, and the court of appeal affirmed. Id. at 120. Again, the defendant was not required to establish prejudice.

In light of the clear and unambiguous requirements of LSA-R.S. 13:850(A) and the record before the court, we find no manifest error and agree with the trial court's conclusion that prescription was not interrupted by the plaintiffs' failed attempt to fax file the petition after the close of business on the final day of the prescriptive period.

ASSIGNMENT OF ERROR TWO: Acknowledgment

In their final assignment of error, the plaintiffs contend that the defendants interrupted prescription by acknowledging their obligation to the plaintiffs. This argument lacks merit.

An acknowledgement is the recognition by the debtor of the creditor's right that halts the progress of prescription before it has run its course. Acknowledgement interrupts prescription before it has expired, with the prescriptive period beginning to run anew from the time of the interruption. Bracken v. Payne and Keller Co., Inc., 06-0865 (La.App. 1st Cir. 9/5/07), 970 So.2d 582, 588-89. See also LSA-C.C. art. 3464, "Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe." An acknowledgment involves an admission of liability, either through explicit recognition of a debt owed, or through actions of the debtor that constitute a tacit acknowledgement. Acknowledgement may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways; or it may be implicit or inferred from the facts and circumstances. Id. at 588.

The supreme court has held the following with regard to tacit acknowledgment:

A tacit acknowledgement occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Conversely, mere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute acknowledgements. These generalizations are reflected in the host of cases addressing the issue of what constitutes a tacit acknowledgment. Our courts have added to the above generalizations other criteria that evidence an acknowledgment, including undisputed liability, repeated and open-ended reassurances of payment, and continuous and frequent contact with the creditor throughout the prescriptive period. Conversely, our courts have recognized that mere recognition of a disputed claim, conditional payments, and settlement or compromise offers or negotiations do not evidence an acknowledgement. (Footnotes omitted.)

Lima v. Schmidt, 595 So.2d 624, 634 (La. 1992), superseded by statute on other grounds. In Safeco, this court found that emails with language and requests for information similar to what was contained in Progressive's letters to the plaintiffs was not a tacit acknowledgment. Based on similar facts, the Louisiana Supreme Court reached the same result, on rehearing, in Flowers. See Flowers, 381 So.2d at 381-382. Like the defendants in these cases, Progressive did nothing more than acknowledge the existence of disputed claims and request additional information to assist it in evaluating those claims.

After a review of the record, and in accordance with this court's precedent, as well as Lima and Flowers, we cannot say that the trial court was manifestly erroneous in finding there was no acknowledgment of liability by the defendants.

CONCLUSION

For the foregoing reasons, we affirm the trial court's April 11, 2018 judgment that granted the defendants' exception raising the objection of prescription and dismissed the plaintiffs' action against Progressive Security Insurance Company and Anthony J. Leblanc, Jr. Costs of this appeal are assessed against the plaintiffs, Jacob Stevenson and Jesse Stevenson, individually and on behalf of his minor son, Logan Stevenson.

AFFIRMED.

      The petition was hand-delivered for filing with the clerk of court on December 14, 2017.

      The defendants did not allege prejudice and did not; specifically respond to this argument before the trial court.

      The plaintiffs' exhibits were admitted at the trial on the exception, over the defendants' objection based on relevancy and hearsay.

      We note the inconsistency between LSA-C.C.P. art. 253, which provides that an electronically filed document is deemed filed on the date and time stated on the confirmation of electronic filing sent from the clerk of court, and LSA-R.S. 13:850(A), which states that the filing will be deemed complete at the time the facsimile transmission is received by the clerk of court. However, based on the facts presented in this case, we need not address this issue.

      When Hunter was decided, LSA-R.S. 13:850(B) stated, "Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:..." [Emphasis added.] The Louisiana Supreme Court interpreted "forward" to mean "send" the document, so the statute was satisfied when the plaintiff sent the original to the clerk's office. Hunter, 6 So.3d at 157. By LA Acts 2016, No. 109, § 1, the legislature subsequently amended LSA-R.S. 13:850(B) in 2016 to state, "... all of the following shall be delivered to the clerk of court:..." [Emphasis added.] Although we do not search for legislative intent in our interpretation of the clear and unambiguous wording of LSA-R.S. 13:850(A), we note this clear expression of the legislature to require receipt of all referenced documents by the clerk's office.

      The remaining requirements of LSA-R.S. 13:850, which are not relevant here, must also be satisfied in order for the transmission to be deemed timely. See Brehm , 236 So.3d at 629.

      At the time, LSA-R.S. 13:850(A) provided, "Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court."

      Louisiana Revised Statute 13:756 provides, in part, "Each of the clerks of the district courts and ex officio recorders shall keep their offices open from 8:30 A.M. to 4:30 P.M. every day except Saturdays, Sundays, legal holidays, and in cases of public emergency."

      Louisiana Civil Code article 3462 provides:
      Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.