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Hebert v. ANCO Insulation7/31/2002
Hebert's loss of consortium claim was viable, and the trial court committed legal error in granting Dow's summary judgment and dismissing this claim.
On appeal, plaintiffs have requested that this court remand the matter to the trial court for trial of Mrs. Hebert's loss of consortium claim. When an appellate court has all the facts before it, the trial court's legal error does not warrant remand. Rather, the appellate court should review the record de novo and render judgment of the merits. See Gonzales v. Xerox Corporation, 320 So. 2d 163, 165-166 (La. 1975); Noveh v. Broadway, Inc., 95-2081, p. 6 (La. App. 1st Cir. 5/10/96), 673 So. 2d 349, 353, writ denied, 96-1431 (La. 9/13/96), 679 So. 2d 109.
In the instant case, Mr. and Mrs. Hebert had been married for forty-six years. They had six children and fifteen grandchildren. Mrs. Hebert related that upon her husband's diagnosis, she was devastated, scared and anxious and that she cried often. While Mr. Hebert had been very actively involved with his family prior to his diagnosis, his condition had rendered him unable to perform most activities. He was no longer able to assist Mrs. Hebert around the house, and his illness clearly interfered with the parties' sexual relationship.
Accordingly, based on the record on appeal, I would find the record supports an award to Mrs. Hebert of the sum of $125,000.00 for loss of consortium.
CONCLUSION
For the above reasons, while I agree with the majority's conclusion that the November 8, 1999 judgment, maintaining the exceptions of lack of personal jurisdiction filed by Harold Hoyle, Benjamin Holder and Harold Gordon should be affirmed, I respectfully disagree with the majority's decision to vacate the March 13, 2000 amending judgment in favor of plaintiffs on the merits and to remand for further proceedings. Instead, I would amend the March 13, 2000 amending judgment on the merits to reflect that Dow is liable for a 1/6 virile share, rather than a 1/8 virile share, rendering it liable to plaintiffs in the amount of $354,166.66 (1/6 of the jury's award as amended by the trial court to reduce the award of medical expenses from $500,000.00 to $125,000.00).
Additionally, with regard to the judgment of the trial court rendered October 25, 1999, and signed July 25, 2000, granting Dow's motion for summary judgment and dismissing Mrs. Hebert's loss of consortium claim, I would reverse that judgment and render judgment on the loss of consortium claim in favor of plaintiff, Marion Hebert, and against Dow in the amount of $20,833.33 (1/6 of the award of $125,000.00 for loss of consortium).
Accordingly, I respectfully concur in part and dissent in part.
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