The plaintiff alleges injury as a result of an accident between his vehicle and a front-end loader engaged in removing debris related to a 1997 ice storm in Lake Charles. A jury found in favor of the plaintiff, apportioning fault between the operator of the front-end loader, a contractor for whom the driver was found to be a borrowed employee, and the primary contractor performing the work for the City of Lake Charles. Damages totaling $2,267,483.71 were awarded. The defendants appeal. For the following reasons, we affirm.
Factual and Procedural Background
Waste Management of Louisiana, LLC entered into a contract with the City of Lake Charles to remove debris associated with a January 1997 ice storm. Because Waste Management did not have the necessary employees and equipment, it engaged Delta Exports, Inc. to perform the required work. Delta Exports then engaged Jack Gibson d/b/a J & P Logging to undertake the clean-up.
Mr. Cobb reported to his physician on the Monday following the accident and began a continuous course of treatment for back and neck complaints. He eventually underwent several surgeries, including a lumbar fusion and a cervical fusion. Mr. Cobb maintains that he had to quit working within a few days of the accident and has been unable to return. He contends that he continues to experience pain and that, in addition to being unable to work, his daily activities have been curtailed.
Mr. Cobb filed suit, naming as defendants the City of Lake Charles, Waste Management, Delta Exports, Jack Gibson d/b/a J & P Logging, and the driver of the front-end loader, James Wright. Delta Exports' insurer, Penn-America Insurance Company was also named as a defendant. Summary judgments were originally entered in favor of the City of Lake Charles, Waste Management, and Delta Exports, but were reversed on appeal to this court. See Cobb v. Delta Exports, Inc., 03-33 (La.App. 3 Cir. 6/4/03), 847 So.2d 739, writs denied, 03-1906 (La.10/31/03), 857 So.2d 483, 03-1936 (La.10/31/03), 857 So.2d 485.
After the matter proceeded to trial, a jury found that Mr. Wright, Delta Exports, and Waste Management were at fault in causing the accident. The plaintiff, Jack Gibson d/b/a J & P Logging, and the City of Lake Charles were found not to be at fault. Mr. Wright was also found to be the borrowed employee of Delta Exports. The jury apportioned 25% of the fault to Mr. Wright, 25% to Delta Exports, and 50% to Waste Management.
The jury awarded the following damages:
Past Medical Expenses $233,813.71 Future Medical Expenses $110,000.00 Past Loss of Earnings $668,785.00 Future Loss of Earnings/Loss of Earning Capacity $754,385.00 Physical Pain and Suffering, Past and Future and Physical Disability $500,000.00 Property Damage $ 500.00
Delta Exports, Penn-America, and Waste Management (hereinafter "the defendants") filed a Motion for Judgment Notwithstanding the Verdict and for Conditional New Trial, or, Alternatively, for New Trial. The motion was denied by the trial court.
The defendants appeal, assigning the following as error:
After discovery requests and a motion to compel directed toward one-time-defendant Jack Gibson, d/b/a J & P Logging were not satisfied, the plaintiff requested that the trial court advise the jury of several presumptions regarding this failure to comply with discovery requests. The plaintiff requested that the trial court "instruct the jury that because Mr. Gibson has not produced the following items that they should presume that such documents or things requested do not exist." The trial court ultimately advised the jury as follows:
The defendants contend that this information suggested to the jury that Jack Gibson, d/b/a J & P Logging was either uninsured or insolvent and, therefore, unduly prejudicial to the remaining defendants. The plaintiff asserts that the information was not suggestive of insolvency and, further, was relevant to his claim for negligent hiring, his claim that Waste Management and Jack Gibson, d/b/a J & P Logging did not have a contract, and the analysis of Waste Management's fulfillment of its contract. The plaintiff also contends that the information was related to the question of whether Mr. Wright was the borrowed servant of Delta Exports.
We note that the presumption issue was first presented to a panel of this court on the defendants' application for writs during the course of the trial. Reviewing the trial court's decision to permit the court's instruction, this court ruled: "WRIT DENIED: We find no abuse of discretion in the ruling of the trial court." Cobb v. Delta Exports, Inc., 04-483 (La. App. 3 Cir. 4/13/04). Pursuant to the law of the case doctrine, an appellate court typically will not reconsider its own rulings of law in the same case. Trahan v. State ex rel. Dep't of Health and Hosp., 04-743 (La.App. 3 Cir. 11/10/04), 886 So.2d 1245. Application of the doctrine avoids repetitive
Having considered the trial court's determination and the plaintiff's claims, we conclude that this court's decision to deny the writ was not palpably erroneous. Neither does the application of the law of the case doctrine result in manifest injustice. Accordingly, we do not reconsider the prior decision of this court.
Borrowed Employee Status
The defendants also question the jury's determination that Mr. Wright was the borrowed employee of Delta Exports. They contend that the evidence demonstrated that Jack Gibson, d/b/a J & P Logging was the employer, as he provided Mr. Wright's compensation and retained the ability to terminate his employment. Thus, the defendants contend, the plaintiff failed to carry his burden of proving that Mr. Wright was a borrowed employee.
In Morgan v. ABC Manufacturer, 97-956 (La.5/1/98), 710 So.2d 1077, the Louisiana Supreme Court noted that jurisprudential interpretation of La.Civ.Code art. 2320
In considering whether a borrowed servant relationship exists, the courts consider several factors, including: 1) Which employer has control over the employee and his or her work, beyond the mere suggestion of details or cooperation; 2) Which employer's work is being performed; 3) Whether an agreement existed between the general employer and the borrowing employer; 4) Whether the employee acquiesced in the situation; 5) Whether the general employee terminated his relationship with the employee; 6) Which employer furnished the necessary tools and the place where the work was performed; 7) Whether the new work situation was over a considerable period of time; 8) Which employer had the right to terminate the employee; and 9) Which employer had the obligation to pay the employee's wages. Barnett v. Meridian Res. & Exploration, 01-1114 (La.App. 3 Cir. 2/6/02), 815 So.2d 1016, (quoting, Vaughn v. BFI Waste Sys. of North America, Inc., 01-1105 (La.App. 4 Cir. 7/25/01), 793 So.2d 410), writs denied, 02-630 (La.5/3/02), 815 So.2d 105,
Although the determination as to the existence of a borrowed servant relationship has been viewed as a legal one, the determination is necessarily one that is fact bound. Barnett, 815 So.2d 1016. Having reviewed the record, we do not find reversible error in the jury's determination that Mr. Wright was a borrowed employee of Delta Exports.
Although not all of the above factors are present in this matter, sufficient evidence was presented by the plaintiff to support the jury's determination that Mr. Wright was a borrowed employee of Delta Exports. First, the jury was clearly able to find that the work being pursued was that of Delta Exports, a company that performed storm debris removal. Further, the equipment operated by Mr. Wright on the day of the accident, the front-end loader, was leased by Delta Exports. Testimony indicated that Delta Exports typically leased such equipment for its subcontractors and the rental fee was then factored into the subcontractor's invoices to Delta Exports.
The jury was further permitted to take into consideration that the relationship between Delta Exports and Jack Gibson d/b/a J & P Logging appears to have been based only on an oral agreement. Testimony indicated that Jack Gibson refused to sign the contract presented by Delta Exports due to questions regarding the compensation rate. As for control, the jury was aware that Mr. Gibson himself was not in the state at the time of the accident in question, instead leaving supervision to his foreman, Jean Paul Chappel. Mr. Gibson responded affirmatively when asked whether he took orders from Delta Exports. He also explained that any problems that arose were reported to Delta Exports.
Finally, the jury could have concluded that the seeming closeness of the businesses' financial arrangements were important in the borrowed employee analysis. Although Mr. Wright's salary was apparently paid by Mr. Gibson, Delta Exports provided cash advances to those employees of its subcontractors who sought assistance during their stay in Lake Charles. Further, the motel rooms in which the J & P Logging crew stayed while in Lake Charles were among those reserved by Delta Exports. Also, the jury was aware that Mr. Wright had an earlier history with Delta Exports, having worked directly for the company on an earlier storm debris job in North Carolina. According to Jeanne Gibson, who handled the paperwork for Delta Exports' subcontractors, the subcontractors on the Lake Charles job would arrive at her office most nights with invoices and load tickets for processing. In reviewing invoices during her deposition, she explained that some of the J & P Logging invoices were completed on Delta Exports forms, some even in her handwriting.
We conclude that the evidence was sufficient for the jury to make inferences in favor of the plaintiff with regard to borrowed servant status. We do not reverse that determination on review.
The jury apportioned 25% of the fault for the accident to Mr. Wright, 25% of the fault to Delta Exports, and 50% to Waste
The plaintiff's theory of recovery against the defendants was one of negligence, as was the defendants' claim of comparative fault on the part of the plaintiff. Louisiana Civil Code Article 2315(A) provides that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." The duty/risk analysis assists in the determination as to "fault" and requires the establishment of the following elements:
Benjamin v. Housing Auth. of New Orleans, 04-1058, p. 6 (La.12/1/04), 893 So.2d 1, 5, (citing, Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606). A fact finder's factual determinations made during the course of the duty/risk analysis may not be set aside absent manifest error or unless the findings are clearly wrong. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173. Our review of the record reveals no such error in the jury's determinations as to fault.
Given the evidence presented, the jury was free to conclude that the accident in question was caused in some measure by the lack of traffic control at the worksite. Although differing testimony regarding the presence, or lack thereof, of barricades and flagmen was presented, the jury was able to conclude that any traffic control present was insufficient. Furthermore, the entity responsible for traffic control was less than clear.
A Waste Management official testified that the company did not delegate the responsibility for traffic control. He also explained that, to his knowledge, Waste Management did not train Delta Exports' workers as to traffic control, barricading, or the proper use of flagmen. Finally, the Waste Management official explained that he did not know whether Waste Management ascertained the extent of Delta Exports' capabilities.
With regard to the finding of fault on the part of Delta Exports, we have above affirmed the determination that Mr. Wright was working as Delta Exports' borrowed employee. Accordingly, we find no error in the determination that Delta Exports was vicariously liable for his actions/inactions while in pursuit of Delta Exports' work. See Morgan, 710 So.2d 1077.
These arguments regarding fault lack merit.
The defendants next assert that the jury abused its discretion in awarding unreasonably high damages. We consider each of the awards in turn.
The defendants question the $233,813.71 awarded in past medical expenses and the $110,000.00 awarded for future medical expenses. The defendants point out that the plaintiff had previously undergone neck and back surgery. They also argue that some of his ongoing complaints were unrelated to this accident.
As noted by the supreme court, an award for future medical care must be established with a degree of certainty. Duncan v. Kansas Southern Railway Co., 00-66 (La.10/30/00), 773 So.2d 670. On appellate review, a fact finder's determination as to quantum is owed great deference. Trunk v. Med. Center of Louisiana, 04-181 (La.10/19/04), 885 So.2d 534.
With regard to past medical expenses, the parties stipulated as to the amount of incurred medical expenses, $233,813.71, leaving the question of causation to the jury. The record supports the determination that the entirety of the stipulated figure was necessitated by the accident. Although the plaintiff had previous neck and back complaints, even earlier neck and back surgeries, Mr. Cobb and his neurosurgeon indicated that his earlier surgeries were successful and that he was able to function well until the time of the accident. The jury heard Mr. Cobb explain that he would occasionally have pain after his earlier surgeries, but that it would resolve within a few days and that he was always able to work and participate in recreational activities. He testified that his pain substantially changed following the accident. Furthermore, although the defendants assert that the figure stipulated to included expenses associated with carpal tunnel syndrome and a rotator cuff injury that were unrelated to the accident, the defendants failed to present testimony as to what those costs were and in what way they should have been deducted from the stipulated figure.
The jury awarded $754,385.00 for future loss of earnings. This figure reflects testimony of the plaintiff's experts indicating that, if Mr. Cobb could return to sedentary employment, he could earn an hourly rate of ten dollars. The estimated earnings were compared with Mr. Cobb's earlier position and the fact this earlier position included a benefits package and the prospect of an annual three percent merit raise.
The jury was aware of other estimates as to Mr. Cobb's future employment prospects, including the defendants' contention that Mr. Cobb could earn substantially more than the earnings estimated by the plaintiff's experts. They chose to accept the plaintiff's evidence indicating that Mr. Cobb could earn approximately ten dollars per hour if returned to a sedentary position. The jury's decision to credit the plaintiff's evidence is supported by the record.
With regard to the future loss of earnings inclusion of the three percent merit increase, the jury was aware that Mr. Cobb's job responsibilities at his company were assumed by his supervisor after he left. However, the jury was free to conclude that the earnings testified to were evidence of Mr. Cobb's earning potential and were reflective of what he would have been able to continue to earn if not for the accident. Again, the plaintiff's evidence was such that it provided a reasonable basis for the jury's awards as to earnings. This argument lacks merit.
The jury awarded $500,000.00 in general damages, a figure the defendants contend is excessive. Referencing figures reported in the jurisprudence, the defendants contend that $250,000.00 is the highest reasonable award in this case.
An award of general damages is reviewed on appeal under the abuse of discretion standard of review. Cone v. Nat'l Emergency Serv., Inc., 99-934 (La.10/29/99), 747 So.2d 1085. Only if there is such an abuse of discretion does the reviewing court consider prior awards in its consideration of the highest or lowest amount that was within the fact finder's discretion. Id.
Our review reveals no abuse of discretion in the jury's $500,000.00 award for general damages. The record supports a determination that the collision with the front-end loader resulted in the need for three surgeries, including both a lumber fusion and cervical fusion. Mr. Cobb explained that, although he had occasional pain prior to the accident, his condition significantly worsened afterward resulting in the inability to return to employment. Although the jury found that Mr. Cobb would be able to return to some type of
Mr. Cobb explained that he can no longer participate in the type of activities he once enjoyed and that attempts to fish and golf had proven unsuccessful. Although Mr. Cobb has traveled on occasion since his accident, he explained that visits to his children are now more time consuming given his inability to travel for long periods. Mr. Cobb also explained that he walks with a cane sixty percent of the time when outside of his home due to his concerns over falling.
Given the evidence presented, we do not find that the jury abused its discretion in awarding $500,000.00 in general damages.
Coverage of Penn-America Policy
Subsequent to the jury's verdict, the trial court addressed the parties' concerns as to whether the Penn-America policy issued to Delta Exports provided insurance coverage for Waste Management. The trial court concluded that the policy did not include Waste Management as an insured. The defendants question this determination on review, asserting that the trial court should have found Penn-America solidarily liable with Waste Management.
The portion of the Penn-America policy issued to Delta Exports that is in controversy in this assignment provides as follows:
SECTION I COVERAGES
COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY
The defendants contend that the above exclusion does not apply to the Waste Management situation due to the following definition of "Insured Contract" contained elsewhere in the policy:
The trial court concluded that the Penn-America policy was not proven to include Waste Management. We find no error in this determination given the vagueness of the Delta Exports-Waste Management relationship. The relationship was not shown to have been memorialized in a written contract. The details of an oral contract were further vague, particularly insofar as the defendants attempt to prove that Delta Exports assumed the tort liability for the actions on the scene. Again, the evidence was not sufficiently clear so as to require the trial court to find coverage under the policy. Accordingly, the judgment does not require amendment.
This assignment lacks merit.
Subsequent to the verdict in this matter, the plaintiffs moved to confirm a previously entered default judgment obtained against Mr. Wright. The defendants question this confirmation on appeal, asserting that it was inappropriate for the trial court to include Mr. Wright on the final judgment as he had not filed an answer. The plaintiffs point out that Mr. Wright failed to make an appearance of record during the history of the case. See La.Code Civ.P. arts. 1701(A)
Given the evidence presented in the record, the admitted absence of an answer filed by Mr. Wright, and the record's inclusion of the preliminary default entered against Mr. Wright, we find no error in the judgment rendered by the trial court.
This assignment lacks merit.
For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed against the appellants, Delta Exports, Inc., Penn-America Insurance Company, and Waste Management of Louisiana, LLC.