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Warren v. Sabine Towing and Transportation Company10/30/2002
could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.
In the instant case, while on the high side, we do not find that the survival damages award is an abuse of the trial court's vast discretion under the particular facts of this case.
The defendants additionally assert that " he hospital `wrote off' $291,875.54 . . . as required by the Medicare statutes and its contract with Medicare." Thus, they assert that the trial court failed to account for the portion written off when the court awarded medical expenses. In Trueman v. City of Alexandria, 01-1130 (La.App. 3 Cir. 5/15/02), 818 So.2d 1021, we held that the collateral source rule applies to Medicare payments. Thus, we reject this argument.
Finally, the defendants contend that the trial court erred in awarding judicial interest on the punitive damages award from the date of judicial demand rather than from the date of judgment, and they seek clarification that the award of interest for the wrongful death damages runs from the date Mrs. Warren filed the amended petition for wrongful death damages rather than from the date Mr. Warren initially filed his suit for personal injury damages. Because we have reversed the award for punitive damages, we need not address judicial interest in that regard.
The trial court awarded "legal interest from the date of judicial demand" on Mrs. Warren's claim for wrongful death damages. We interpret the interest award to be from the date that Mrs. Warren made demand for that particular item of damages. We note that the rule under general maritime law is that prejudgment interest is awarded from the date of loss rather than the date of demand. Mayo v. Nissan Motor Corp. in U.S.A., 93-852 (La.App. 3 Cir. 6/22/94), 639 So.2d 773, writs granted on other grounds and case remanded, 94-1978, 94-1990 (La. 11/11/94), 644 So.2d 661. However, Mrs. Warren has not appealed on that issue, so we are unable to grant her prejudgment interest from the date of loss. Accordingly, we leave the interest award undisturbed.
DISPOSITION
For the foregoing reasons, we reapportion fault as follows: Sabine Towing-40%; Chevron, individually and as successor to Gulf-20%; Conoco-9%; Marathon Oil-0.5%; Dow-0.5%; and all other involved companies-30.0%. Additionally, we reverse the award of punitive damages. We affirm the judgment below in all other respects and assess 50% of the costs of this appeal to Evelyn Yvonne Warren and 50% percent of the costs of this appeal to the remaining defendants.
REVERSED IN PART; AMENDED IN PART; AFFIRMED IN PART.
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