
    Wilmer HARRIS v. UNITED AGENTS INSURANCE CO. OF LOUISIANA, et al.
    No. 00-1314.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2001.
    Katherine Marie Loos, Briney & Foret, Lafayette, LA, Counsel for Defendants/Appellants United Agents Insurance Company of Louisiana and Thomas R. Le-Blanc.
    Bennett Boyd Anderson, Jr., Anderson and Boussard, Lafayette, LA, Counsel for Plaintiff/Appellee Wilmer Harris.'
    Court composed of DOUCET, Chief Judge, WOODARD, PETERS, AMY, and SULLIVAN, JJ.
   JjDOUCET, Chief Judge.

This case arises out of a two-vehicle accident on January 10, 1997, in Iberia Parish, in which Defendant, Thomas R. LeBlanc, ran a stop sign. Because of Mr. LeBlanc’s action, Plaintiffs vehicle struck Mr. LeBlanc’s vehicle. Mr. LeBlanc’s liability (and consequently that of his insurer, United Agents Insurance Company of Louisiana) was determined via a motion for summary judgment. Following a jury trial on the issue of damages, the Plaintiff filed a motion for a judgment notwithstanding the verdict seeking additional damages and alternatively for a new trial. The trial court granted the motion, increasing the awards for general damages, past lost wages, and future loss of earnings or earning capacity. The alternative motion for new trial was also granted. Defendants appeal.

FACTS

Following the accident, Plaintiff sought treatment for headaches, neck, and back pain. Initially, the Plaintiffs physician, Dr. John Humphries, recommended physical therapy and indicated that the Plaintiff was disabled from heavy work. In April 1997, the Plaintiff attempted to return to work. However, his pain returned, ultimately driving him from work. In December 1997, the Plaintiff saw Dr. Louis Blan-da, an orthopedic surgeon. Dr. Blanda performed a two-level lumbar fusion in April 1998. According to Dr. Blanda, the surgery was only partially successful, with the lower level of the fusion only partially healed. The Plaintiff continued to complain of pain, and declined a follow-up surgery offered by Dr. Blanda because he was afraid of the possible untoward results.

Following a three-day jury trial, the jury returned the following verdict in favor of Plaintiff, Wilmer Harris:

| ^Physical pain and suffering (past, present, and future) $ 25,000.00
Mental pain and suffering (past, present, and future) $ 15,000.00
Past medical expenses $ 42,586.75
Future medical expenses $ 10,000.00
Past lost wages $ 11,718.00
Future loss of earnings/earning capacity $ 32,000.00
Loss of enjoyment of life $ 7,500.00
Permanent physical impairment/disability $ 15,000.00

Subsequently, the Plaintiff filed a “Motion for Judgment .Notwithstanding the Verdict (JNOV), or in the Alternative, For Additur or For New Trial.” The motion for JNOV was granted by the trial judge, who found the awards for general damages, past lost wages, and loss of future earning capacity unreasonably low and increased the awards as follows:

Physical pain and suffering (past, present, and future) $100,000.00
Mental pain and suffering (past, present, and future) $ 75,000.00
Past lost wages $ 45,000.00
Future loss of earnings/earning capacity $100,000.00
Loss of enjoyment of life $ 50,000.00
Permanent physical impairment/disability $ 50,000.00

The medical damages remained unchanged. The motion for new trial, filed in the alternative, was conditionally granted on the issue of damages alone, i.e., should the JNOV be over-turned on appeal.

laThe Defendants appeal, presenting the following issues for review:

1. When considering the Motion for Judgment Notwithstanding the Verdict, did the trial court resolve all inferences or factual questions in favor of Thomas R. LeBlanc and United Agents Insurance Company of Louisiana?
2. Did the trial court weigh the evidence and substitute its judgment of the facts for that of the jury?
3. Did the trial court pass on the credibility of the witnesses?
4. Was the jury’s verdict one which could have been reached by reasonable people?

LAW AND DISCUSSION

Last year the Louisiana Supreme Court addressed the trial court’s granting of a JNOV and the standard of review in such a case. In Davis v. Wal-Mart Stores, Inc., 00-445, pp. 4-5 (La.11/28/00); 774 So.2d 84, 89, the court stated as follows:

La. Code of Civil Procedure art. 1811(F) is the authority for a JNOV. This article provides that a motion for judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both. The standard to be used in determining whether a JNOV has been properly granted has been set forth in our jurisprudence as follows:
A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Smith v. Davill Petroleum Company, Inc. d/b/al Piggly Wiggly, 97-1596 (La.App. 1 Cir. 12/9/98), 744 So.2d 23. See also Powell v. RTA, 96-0715 (La.6/18/97), 695 So.2d 1326; Anderson v. New Orleans Public Service, 583 So.2d 829 (La.1991); State of Louisiana, DOTD v. Scramuzza, 95-786 (La.App. 5 Cir. 4/30/96), 673 So.2d 1249; Seagers v. Pailet, 95-52 (La.App. 5 Cir. 5/10/95), 656 So.2d 700; Engolia v. Allain, 625 So.2d 723, 728 (La.App. 1 Cir.1993); Adams v. Security Ins. Co. Of Hartford, 543 So.2d 480, 486 (La.1989).
The standard of review for a JNOV on appeal is a two part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Anderson v. New Orleans Public Service, Inc., at p. 832.

An appellate court determines whether the trial court erred in granting a JNOV by employing the same criteria as the trial judge. In this case, the trial court found the JNOV necessary, stating that: “The verdict of the jury seemed inconsistent with respect to the awards for general damages as compared to the award for one hundred percent of the past medical expenses and is abusively low with respect to the evidence offered at trial.”

We have examined the record, keeping in mind the issues the Defendants presented for review. Our examination of the record convinces us the trial judge was correct in granting Plaintiffs motion for JNOV. Having so decided, we must now examine the JNOV to determine if the trial judge’s award abused his much discretion.

The standard for appellate review for abuse of discretion in the award of general damages is difficult to express and is necessarily non-specific. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). In Youn, this court recognized that:
[T]he 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. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either j .¡direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Cone.v. Nat’l Emergency Services, Inc., 99-0934, pp. 8-9 (La.10/29/99); 747 So.2d 1085, 1089-90. See also Reck v. Stevens, 373 So.2d 498 (La.1979).

Upon examining the award made by the trial judge after he granted the JNOV, we find no abuse of discretion in his general damage award. However, we find that his awards for past lost wages and future loss of earnings are not supported by the record.

This court set forth the standard in determining past lost wages and stated that: “Lost wages ‘need not be precisely proven, they must be shown with reasonable certainty.’ ” Taylor v. Premier Ins. Co., 98-1935, p. 7 (La.App. 3 Cir. 6/30/99); 742 So.2d 35, 40 (citations omitted). “An award for lost past wages can be ‘computed on the amount the plaintiff would have in all probability’ earned had he been able to work.” Id. at pp. 7-8; at 40. (Citations omitted).

Skipper v. Berry, 99-1433, p. 8 (La.App. 3 Cir. 3/15/00); 762 So.2d 56, 61. Plaintiffs employment history shows that he earned $3,198.00 in 1994, $7,863.00 in 1995, and $13,733.00 in 1996. During those years he was 24, 25 and 26 years old, respectively. The accident which caused Plaintiffs injuries happened January 10, 1997. Evidence in the record reveals that Mr. Harris earned $8,946.78 in 1997. We find no evidence of his earnings in 1998 or 1999. Using the above figures, the highest award for past lost wages supported by the record is $28,818.97 ($13,733.00/year times 2.75 years minus $8,946.78).

As to the award for future loss of earnings, the record reveals that'Plaintiffs major source of income had been from heavy manual labor. In 1997, when working for McDermott, Mr. Harris earned $5.60 per hour. We see no reason, except his |fiinjuries, which would have prevented him from continuing to earn somewhere in this range. Since his operation in April of 1998, he is incapable of heavy manual labor, but is employable. Even at a job paying the Federal Minimum Wage, Mr. Harris would be able to earn $5.15 per hour. Thus, he has lost future earnings of $0.45 per hour. With a work life expectancy of 35 years (he was 30 years old at the time of the trial) this equates to $32,760.00 (2080 hours per year times $0.45 per hour times 35 years).

Inasmuch as we affirm the trial judge’s granting of the JNOV, the issue of the motion for a new trial is moot.

Accordingly, for the reasons stated, we amend the judgment of the trial court to award Plaintiff $28,818.97 in past lost wages and $32,760.00 in future lost earnings; in all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Defendants, Thomas R. LeBlanc and United Agents Insurance Company of Louisiana.

AFFIRMED AS AMENDED.

AMY and WOODARD, JJ., dissent and assign reasons.

IvAMY, J.,

dissenting.

I respectfully dissent from the majority’s determination that the Motion for Judgment Notwithstanding the Verdict should be amended and affirmed. As pointed out by the trial court in its reasons for ruling, the jury awarded the past medical expenses requested by the plaintiff. It follows that the jury, therefore, concluded that the accident caused the herniation requiring the surgery performed by Dr. Blanda.

Turning first to the award for general damages, it is important to note that the jury awarded a total of $62,500. Drawing all inferences in favor of the defendant, as is required in review of a JNOV, I conclude that the record does not require the trial court’s increase of this portion of the damages award. Instead, the evidence permitted the jury to recognize that while the plaintiff underwent a two-level lumbar fusion that only partially healed, Dr. Blan-da testified that the surgery was partially successful with the possibility of further natural healing and that another surgery was an option. Further, the plaintiffs pain was improved after the surgery and the leg pain complained of resolved. Dr. Blanda testified that, at the time of trial, Mr. Harris could return to light/sedentary work for six months and, after this period, he would see what developed with regard to working capabilities. He testified that another surgery was a possibility in order to promote the fusion, but that the plaintiff was uninterested. While the plaintiff testified regarding his continuing complaints of pain, these complaints were not so severe nor the limitations on his personal life so |(>great that the trial court was required to raise the general damages award. This evidence, I find, supports the award for general damages determined by the jury, barring the granting of a motion for JNOV.

With respect to the trial court’s increase of the past lost wages award of $11,718 and the future loss of earnings or earning capacity award of $32,000,1 find that, here too, the record supports the jury’s award, when considered in the light most favorable to the defendant, as is required by the standard for evaluating a motion for JNOV. As for the award for past lost wages, the figure awarded reflects the jury’s acknowledgment that the plaintiffs work history over the years prior to the accident revealed only partial employment at low-paying jobs. In fact, prior to trial, the plaintiffs highest yearly earnings had been $13,733. Furthermore, Dr. Blanda released the plaintiff to return to light duty work in December 1998. While the jury could have concluded that the plaintiff would have been unable to obtain light duty work, due to limited educational qualifications, as urged by the plaintiff, the jury was also free to accept the testimony of the defendant’s vocational rehabilitation expert regarding light/sedentary jobs for which she found the plaintiff suited. Despite the plaintiffs argument to the contrary, she testified that the plaintiff would be employable even with educational limitations and a right arm palsy, a physical disability the plaintiff had lived and worked with since birth.

Similarly, I conclude that the record supports the jury’s $32,000 award for loss of earning capacity. Inherent in this award is a recognition that the plaintiff may not be able to return to a manual labor position, but that he can return to employment. The defendant’s expert in determining economic loss testified that if the plaintiff returned to a position paying six dollars per hour, four months after trial, he would have a loss of earning capacity in the range of $25,000-$32,200. The $32,000 ^awarded by the jury reflects an acceptance of this type of earning capacity. Furthermore, the jury was free to accept that the plaintiff had no loss of earning capacity given the testimony of the defendant’s vocational rehabilitation expert about the availability of light/sedentary positions for which she found the plaintiff suited.

For these reasons, I conclude that this above evidence indicates that the jury’s award in this area is supported by the record and was inappropriate for a JNOV. Accordingly, I would reverse the JNOV in full and, for the same reasons, would reverse the trial court’s granting of the conditional new trial. See Joseph v. Broussard Rice Mill, Inc., 00-628 (La.10/30/00); 772 So.2d 94.

| WOODARD, J.,

dissenting.

I agree with the majority’s opinion in all respects except for its decision to reverse the trial court's future loss of earnings/earning capacity award in so far as it relates to the future loss of earning capacity award.

The majority does not distinguish lost wages with future loss earning capacity. In effect, when reversing the trial court’s $100,000.00 “[fjuture loss of earnings or earning capacity” award, the majority discards the “earning capacity” factor comprised in the trial court’s decision. Instead, it finds that the trial court’s “awards [of] ... future loss of earnings are not supported by the record.” (Emphasis added.)

I respectfully disagree with both the majority’s legal analysis and its factual conclusions of the record.

Our well-settled jurisprudence distinguishes loss of future earning capacity with lost wages or future lost earnings. It is clear that earning capacity refers to a person’s potential, as opposed to actual loss only. In Folse v. Falcouri, the landmark case on this issue, the Louisiana Supreme 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 |2seen 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.

(Emphasis added.)

While lost earnings are determined by actual loss, such a standard does not necessarily reflect a plaintiffs lost earning capacity. What it compensates is a plaintiffs ability to earn a certain amount. The plaintiff may recover such damages although he/she may never have seen fit to take advantage of that capacity.

In Pierce v. Milford, we stated that:

In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages him in the work force. The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.
The very nature of lost earning capacity makes it impossible to measure the loss with any kind of mathematical certainty. The facts of each case must take into account a variety of factors, including the plaintiffs condition prior to the accident, his work record prior to and after the accident, his previous earnings, the likelihood of his ability to earn a certain amount but for the accident, the amount of work life remaining, inflation, and the plaintiffs employment opportunities before and after the accident.

(Citations omitted.) Furthermore, plaintiff has the burden of proving entitlement to loss earning capacity by a preponderance of the evidence. On appeal, we review a trial court’s loss earning capacity award under the abuse of discretion standard.

lain the case sub judice, contrary to the majority’s conclusions, I find that the record clearly supports the trial court’s future loss of earnings/earning capacity award. Dr. Louis Charles Blanda testified that Mr. Harris has lost the capacity to perform heavy manual labor. Mr. Hebert, a vocational rehabilitation expert, stated that before his accident, Mr. Harris could have earned $20,000.00 to $22,000.00 per year working as a galley-hand, which entails heavy manual labor. However, he opined that he can no longer secure this type of employment because of his post-accident physical restrictions. Mr. Harris’ unrebut-ted testimony was that he had received a permanent $7.00 per hour employment offer prior to the accident.

Notwithstanding, the majority suggests that we calculate his loss of future earnings/earning capacity based on the difference between his past earnings, $5.60 per hour, and his suggested post-accident earnings, namely $5.15 per hour. This calculation is obviously in error. At the least, under the aforementioned jurisprudence, the trial court had a rational basis to determine that Mr. Harris could have earned more than $5.60 per hour, namely, $7.00 per hour as he testified, or $20, 000.00/$22,000.00 per year as Mr. Hebert opined.

Accordingly, I find that the trial court did not abuse its vast discretion when it awarded Mr. Harris $100,000.00 in loss of future earnings/earning capacity. 
      
      . Burnaman v. Risk Management, Inc., 97-250 (La.App.6/18/97); 698 So.2d 17, writ denied, 97-1832 (La.10/31/97, 703 So.2d 23); Sloan v. Dailey, 95-906 (La.App. 3 Cir. 12/6/95); 664 So.2d 792.
     
      
      . Batiste v. New Hampshire Ins. Co., 94-1467 (La.App. 3 Cir. 5/3/95); 657 So.2d 168, writ denied, 95-1413 (La.9/22/95); 660 So.2d 472.
     
      
      . 371 So.2d 1120, 1124 (La.1979).
     
      
      . Batiste, 657 So.2d 168.
     
      
      . Id.
      
     
      
      . Id.
      
     
      
      . 96-92 (La.App. 3 Cir. 9/25/96); 688 So.2d 1093, 1095.
     
      
      . Pierce, 688 So.2d 1093.
     
      
      . Batiste, 657 So.2d 168.
     