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Cox v. Moore12/12/2001
bring an action for the wrongful death of a sibling. Obviously, Brandie does not have a right of action for the wrongful death damages of her sister because her mother is still living.
However, the trial judge intended to compensate Brandie for her injuries; he just allocated the damages to the wrong items. Established law does not require a trial court to itemize a general damage award. Harper v. Falrig Offshore, Inc., 00-694 (La.App. 3 Cir. 12/20/00); 776 So.2d 620, writs denied, 01-751, 01-816 (La. 5/11/01); 792 So.2d 735, 737. We also keep in mind that it is the total award of general damages, and not the individual items, that we must review in determining if there was an abuse of discretion. Thissel, 476 So.2d 851.
There is no question that Brandie was seriously injured in this accident and suffered damages as a result. In making his award the trial judge in reasons for judgment stated that it relied upon the amounts suggested in the post-trial memorandum by Plaintiff's counsel. The post-trial memorandum listed two $350,000 items, one for physical and mental injuries including loss of memory, and the other for the wrongful death of her sister. The trial judge quoted from award descriptions and awarded these amounts exactly as presented in the brief, but omitted an award to Brandie for physical and mental injuries including loss of memory in the amount of $350,000. It is clear that the trial judge intended to compensate Brandie for her injuries in the amount of $350,000, but copied the wrong descriptive language in its reasons for judgment. The trial judge did not err in awarding Brandie damages. Therefore, we find that a total general damage award of $350,000 to Brandie for her injuries was not an abuse of discretion.
LOUISIANA REVISED STATUTE 13:5106
The DOTD claims that the trial court erred in awarding general damages to Rebecca in excess of $500,000 in violation of Louisiana Revised Statute 13:5106. Relying on Chamberlain v. State Through DOTD, 624 So.2d 874 (La.1993), which held that the $500,000 cap was unconstitutional when applied to this 1989 accident, we find that this argument has no merit.
For the reasons discussed in this opinion, we reverse the judgment in part, amend the judgment in part, and affirm the judgment in part. The DOTD is assessed with 80% of the fault, and Moore is assessed with 20% of the fault.
The damage award to Jerry Cox, Jr. is reversed.
The damages awarded to Rebecca Cox are affirmed except to reduce the general damage award by $550,000, for a total general damage award of $850,000. The special damages for the funeral bill of $3,571.01 was not appealed by the DOTD and remains unchanged for a total damage award of 853,571.01.
The damage award in the amount of $150,000 to Rebecca Cox on behalf of Brandie Cox for witnessing her sister's death is reversed. The general damage award of $350,000 on behalf of Brandie is affirmed.
Costs of this appeal are assessed equally to the DOTD and Rebecca Cox.
REVERSED IN PART; AMENDED IN PART; OTHERWISE AFFIRMED.
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