Simms v. Progressive Insurance Co.9/29/2004
, 95-0292 (La. 3/24/95), 651 So. 2d 295; and Cortez v. Zurich Ins. Co., 98-2059 (La. App. 1st Cir. 12/28/99), 752 So. 2d 957.
The record establishes that Simms' recovery restricted her lifestyle for at least a year. However, the record also establishes minimal long-term impact on her ability to enjoy life. Although she complains of some recurring pain, particularly when sitting or walking for long periods, she has been able to resume her regular life activities. We find that the highest award reasonably within the trier of fact's discretion for Simms' loss of enjoyment of life is fifty-thousand dollars ($50,000).
We also find that the award of $150,000 for scarring and disfigurement was abusively high. In Morris v. Flores, 36,932 (La. App. 2d Cir. 3/7/03), 840 So. 2d 1257, the plaintiff was awarded $25,000 for facial scarring along with other injuries. Total general damages of $35,000 were awarded in De Los Reyes v. USAA Cas. Ins. Co., 28,491 (La. App. 2d Cir. 6/26/96), 677 So. 2d 668, to a plaintiff with significant scars on her leg and foot, lacerations, lumbar strain, and a neck injury . On the lower end, an award of $12,000 for bad scarring and disfigurement was granted to a plane crash victim in Marien v. Gen. Ins. Co. of America, 2002-545 (La. App. 3d Cir. 12/11/02), 836 So. 2d 239, writ not considered, 2003-0578 (La. 5/9/03), 843 So. 2d 384, and writ denied, 2003-0474 (La. 5/9/03), 843 So. 2d 396 and 2003-0513 (La. 5/9/03), 843 So. 2d 397. A lower award of $5,000 for permanent scarring and discoloration from a leg injury was granted in Ludwig v. Jefferson Performing Arts Society, 98-48 (La. App. 4th Cir. 1/25/00), 802 So. 2d 655. Based on our consideration of the record and review of cases, we find that the highest award reasonably within the trier of fact's discretion for the scarring of Simms' forearm, hip, and leg to be $25,000.
Finally, we turn to the award of $103,000 to Sidney Simms for loss of consortium. An award of loss of consortium is made to compensate the claimant for loss of love and affection, loss of society and companionship, impairment of sexual relations, loss of performance of material services, loss of financial support, loss of aid and assistance, and loss of fidelity. Etheridge v. St. Paul Mercury Ins. Co., 35,832 (La. App. 2d Cir. 4/3/02), 814 So. 2d 119. Sidney Simms' testified about the care he gave his wife during her recuperation and recovery from her injuries. During the two months she was bedridden and during her long recovery, Mr. Simms helped to care for his wife. He missed fifteen days of work. Once he began working, he returned home to take care of the chores that his wife had ordinarily done. He testified that their life slowed down considerably after the accident. Initially, Sara could not leave the house because of her injuries, and she was later embarrassed about her arm and leg. Mr. Simms also testified that their romantic life considerably changed. Finally, he claimed that their plans to travel after retirement are on hold, since Sara can only ride in a vehicle for short periods of time.
Clearly, Mr. Simms's testimony shows some basis for an award for loss of consortium. During Sara's recovery, he was without the services, assistance, and personal companionship she normally provided. However, there was no indication of marital strain due to Sara's condition. The testimony simply does not establish a reasonable basis for an award of $103,000. Such awards are generally made in instances where there is severe marital strain due to the serious, life-changing, or disabling nature of the injuries suffered. See Laing v. American Honda Motor Co., Inc., 628 So. 2d 196 (La. App. 2d Cir. 1993), writ denied, 94-0375 (La. 3/25/94), 635 So.
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