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Thibeaux v. Trotter9/29/2004
AFFIRMED.
The defendants, Schilling Distributing Company, Inc., Chuck R. Trotter, and Westport Insurance Company (collectively referred to as Schilling), appeal a jury verdict awarding the plaintiff, John Nathan Thibeaux, damages for future lost wages/loss of earning capacity and future medical expenses. For the following reasons, we affirm.
FACTS
Thibeaux filed suit against Schilling after he was rear-ended by one of its delivery trucks on August 4, 2000. Schilling does not dispute liability. This matter proceeded to trial solely on the issue of damages. Following a jury trial, the jury awarded Thibeaux damages totaling $800,092.77. The jury award was broken down into the following categories:
GENERAL DAMAGES
Physical injury suffered $75,000.00 Pain & Suffering, both physical $75,000.00 and mental Physical impairment $0 Permanent disability, if any $0 Loss of enjoyment of life $0 SPECIAL DAMAGES Past Lost Wages $30,000.00 Future Lost Wages/Loss $560,000.00 of Earning Capacity Past Medical Expenses $25,092.77 Future Medical Expenses $35,000.00
In response to this verdict, Schilling filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial arguing that the jury's award for future lost wages/loss of earnings capacity was inconsistent with its finding that Thibeaux suffered no permanent disability. It further argued that the award of $35,000 in future medical expenses was purely speculative and should be reduced to the amount proven at trial, $1500. Subsequent to a hearing, the trial court denied the motion finding that the awards made by the jury were "amply supported by the evidence that was presented." This appeal by Schilling followed.
ISSUES
On appeal, Schilling reurges its JNOV arguments that the award of damages for future lost wages/loss of earning capacity was inconsistent with the finding of no permanent disability and seeks a reduction of the future medical expenses from $35,000 to $1500.
We further note that Thibeaux has raised three assignments of error in his appellate brief asking for an increase in the awards for past and future lost wages/loss of earning capacity and future medical expenses. However, since he failed to answer the appeal or appeal in his own right, as required by La.Code Civ.P. art. 2133, he waived his right to seek a modification of this judgment. See Matthews v. Consol. Cos., Inc., 95-1925 (La. 12/8/95), 664 So.2d 1191. Thus, we shall not address his assignments of error.
FUTURE LOST WAGES
The jury awarded Thibeaux $560,000 in future lost wages/loss of earning capacity, but found that he suffered no monetary loss for permanent disability from the August 4, 2000 accident. Thus, Schilling argues that the jury award is inconsistent and should be reversed.
The types of damages awarded in a personal injury action consist of general and special damages. General damages, are speculative in nature and, thus, incapable of being fixed with any mathematical certainty. They include pain and suffering, physical impairment and disability, and loss of enjoyment of life. Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70. Special damages, however, may be determined with some degree of certainty and include past and future lost wages and past and future medical expenses. Id. In this instance, the jury awarded Thibeaux special damages in the absence of an award for general damages.
In Wainwright, the supreme court held that it was not, per se, error for a jury to award a plaintiff special damages (medical expenses), but not to award general damages (pain and suffering). Rath
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