In this case we are called upon to decide whether a self-insured lessor of a motor vehicle is liable for damages resulting from the negligent operation of the motor vehicle by an employee of the lessee.
I. Procedural History
The plaintiffs, Alanie Aisole and Terry Aisole, sued to recover damages for injuries sustained by Mrs. Aisole resulting from a vehicular collision between the car she was driving and a school bus. The plaintiffs named as defendants: Alice M. Dean, the driver of the school bus; Douglas Dean, Mrs. Dean's husband; Lynn Oaks School Inc. (hereinafter LOS), Mrs. Dean's employer and the lessee of the school bus; and Elevating Boats, Inc. (hereinafter EBI), the owner and lessor of
The trial court found Alice Dean totally at fault and entered judgment in favor of the plaintiffs and intervenor against Alice Dean, Douglas Dean and LOS. The trial court dismissed the suit against EBI based on its conclusion that EBI, as a self-insurer, was not responsible for the actions of a person using the vehicle with express or implied consent.
We granted writs to review the lower courts' decisions.
II. Factual Background
The record indicates LOS, a non-profit organization with very few assets,
On March 25, 1984, EBI and LOS entered into an agreement pursuant to which EBI agreed to "furnish" seven school buses to the school. The agreement between the parties provided for various other long term performance obligations as well. For example, EBI agreed to lease certain land and buildings to LOS and to construct a gymnasium and swimming pool to be used by LOS. In return, LOS agreed to use the leased grounds, facilities and equipment as an educational institution, and to pay a monthly lease payment in the amount of $13,329.37 throughout the term of the ten year lease. After the rental agreement was signed by the parties, EBI continued to list the school buses it "furnished" to LOS on its annual self-insurance application and a copy of the certificate of self-insurance issued to EBI was maintained and displayed on each school bus.
III. Elevating Boat's Liability
The Louisiana Motor Vehicle Safety Responsibility Law (hereinafter LMVSRL) provides a mandatory, comprehensive scheme for the protection of the public from damage caused by motor vehicles. Specifically, La.R.S. 32:861 provides as follows:
As the registered owner of the school bus involved in the accident, EBI satisfied the above statutory requirements by applying for and obtaining a certificate of self-insurance pursuant to La.R.S. 32:1042.
Having concluded that EBI satisfied the requirements of the LMVSRL by listing the school buses on its annual application for self-insurance, we must determine whether EBI, as the self-insured lessor of the school buses, is required to provide omnibus coverage. The overall design of
Although we agree with EBI that self-insurers are not statutorily required to provide omnibus coverage, we feel the peculiar factual circumstances surrounding the instant case justify a finding of liability on other grounds. While the negligence of a lessee cannot normally be imputed to the lessor,
The evidence in the record establishes that EBI and LOS have close ties of kinship. The idea to create LOS was originally envisioned by Lynn Dean, the President of EBI. Lynn Dean and several members of his family presently serve, or have previously served, on the Board of Directors of LOS. In its brief submitted to this court, EBI admits that it has a "philanthropic concern" for LOS. In summary, EBI's relationship with LOS could easily be characterized as paternalistic in nature. It is, therefore, not unreasonable to conclude that EBI intended to facilitate LOS' operation of the school buses by insuring the school buses as part of the agreement between the parties, thereby allowing LOS to escape the financial burden associated with costly insurance premiums.
Furthermore, the course of conduct between the parties lends support to our conclusion that the parties intended for EBI to be financially responsible for any damages caused by the negligent operation of the school buses by LOS. The record reveals that EBI continuously provided LOS with a copy of its certificate of self-insurance which LOS maintained and displayed on the buses. LOS purchased no insurance of its own. When Mrs. Dean was asked by the officer at the scene of the accident if she carried insurance, she replied that the school bus was self-insured. Thus, we find the language of the agreement between the parties which provides that EBI will "furnish" the school buses to LOS, coupled with EBI's repeated furnishing of a certificate of self-insurance to LOS, indicates EBI intended to insure the school buses operated by LOS.
Based on our consideration of the lease agreement in light of the surrounding circumstances, we hold EBI liable for the damages caused by the negligent operation of the leased vehicle. Consequently, EBI is required to satisfy the judgment entered against its lessee, and must be cast as a solidary obligor.
In reaching the above conclusion, we disagree with EBI's contention that pursuant to paragraph 5 of the lease agreement,
IV. The Damage Award
The plaintiffs seek an increase in the amount of general and special damages, a reversal of the court of appeal's decision eliminating the award for "future wage loss or loss of earning capacity," and a clarification of the trial court's judgment with respect to damages. The defendants request a general reduction in the damage award as well as a reduction of the damage award based on the plaintiff's failure to mitigate damages.
A. Quantum of Damages
We first address the general allegations of the parties concerning the quantum of damages awarded by the trial court. The trial judge is given much discretion in awarding general damages. Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506 (La. 1978). Because the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, absent a clear abuse of discretion, an appellate court should not tamper with the quantum of damages awarded. Coco v. Winston Indust. Inc., 341 So.2d 332 (La.1976). Our review of the record indicates the plaintiff suffered considerable pain as a result of her back injury. However, the evidence also reveals the plaintiff's injury was only temporary in nature. Consequently, we find the trial court's award is neither excessive nor inadequate.
B. Future Wage Loss or Loss of Earning Capacity
To obtain an award for future loss of wages and/or loss of earning capacity, a plaintiff must present medical evidence which indicates with reasonable certainty that there exists a residual disability causally related to the accident. Bize v. Boyer, 408 So.2d 1309 (La.1982); Naman v. Schmidt, 541 So.2d 265 (La.App. 4th Cir. 1989); Holman v. Reliance Ins. Co., 414 So.2d 1298 (La.App. 2nd Cir. 1982), writ denied, 420 So.2d 164 (La.1982). Because the trial judge found the plaintiff "suffered a temporary back injury which mostly dissipated by October, 1986" we find no error in the appellate court's decision to set aside the award for future wage loss and/or loss of earning capacity.
C. The Proper Interpretation of the Damage Award
There appears to be some disagreement among the parties as to the proper interpretation of the trial court's judgment which provides in pertinent part:
Counsel for the defendants insists the effect of the emphasized language is to reduce the total award due and owing to the plaintiff to $27,755.90 ($74,939.44 minus $47,183.54). In response, plaintiffs' counsel maintains the "Reasons for Judgment" more accurately manifests the trial court's true intent. We agree with the plaintiffs that despite the emphasized language in the trial court's judgment, the trial court intended the judgment in favor of Insurance Company of North America to be over and above the damages awarded to Mrs. Aisole.
The judgment in favor of the intervenor was composed of $2,472.75 in prior compensation benefits paid to the plaintiff and $44,710.79 in medical expenses paid on behalf of the plaintiff.
D. The Plaintiff's Duty to Mitigate Damages
In their reply brief, the defendants request a reduction in damages based on the plaintiff's failure to mitigate. Specifically, the defendants contend that because Mrs. Aisole is overweight
It is a well-established principle of law that a tortfeasor takes his victim as he finds him and although the damages caused are greater because of the victims' prior condition which is aggravated by the tort, the tortfeasor is nevertheless responsible for the consequences of his tort. Thames v. Zerangue, 411 So.2d 17, 19 (La. 1982); Walton v. William Wolf Baking Co., Inc., 406 So.2d 168, 175 (La.1981). Our jurisprudence has also recognized that an injured plaintiff has a duty to take reasonable steps to mitigate damages. Pisciotta
Our decision regarding this issue of first impression is consistent with the court's holding in Muller v. Lykes Bros. Steamship Co., 337 F.Supp. 700 (E.D.La.1972), aff'd, 468 F.2d 951 (5th Cir.1972), in which an obese plaintiff's recovery was diminished because he neglected his duty to mitigate damages by failing to follow medical advice that he reduce his weight.
Although we acknowledge the applicability of the doctrine of mitigation of damages in the instant case, our review of the record reveals the trial court's award of $55,000 for pain and suffering is not excessive under the circumstances. Accordingly, we find no reason to lower the $55,000 awarded to Mrs. Aisole for pain and suffering.
Although EBI, as a self-insurer, is not statutorily required to provide omnibus coverage to its lessee, the peculiar factual circumstances in this case arising from the lease agreement and the conduct of the parties justifies the imposition of liability upon EBI. Consequently, we find EBI liable in solido with LOS for any damages sustained by the plaintiffs.
We agree with the court of appeal that the trial court erred in awarding damages for future wage loss and/or loss of earning capacity. We find no reason to disturb the other damages awarded by the trial court. Accordingly, we remand this case to the trial court for recasting the judgment in accordance with this opinion.
REVERSED IN PART; AFFIRMED IN PART; AND, REMANDED.
LEMMON, J., concurs in the result only.
WATSON, J., concurs in the result.
DENNIS, J., concurs in the result for the reasons assigned by him in Hearty v. Harris, 574 So.2d 1234 (La. 1991).