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Louviere v. Louviere6/5/2002
nterrogatory No. 9 asking the jury to decide, whether Adele George Louviere was negligent and whether her negligence was a cause of damages and also erred in including Adele George Louviere's name in Jury Interrogatory No. 10 asking the jury to assign a percentage of negligence to the negligent parties.
2. The damages awarded to Adele George Louviere for her (a) past, present and future physical pain and suffering, (b) past, present and future mental pain and suffering, embarrassment and humiliation, (c) loss of enjoyment of life, and (d) violation of her civil rights are inadequate and should be increased.
3. The attorneys' fees awarded to Adele George Louviere and Rogers George should be increased consistent with any increase in the damages awarded to Adele George Louviere and for the services in connection with the appeal of this matter.
We first address the assignments of error made by the Thibodaux defendants and Coregis Insurance Company.
ASSIGNMENT OF ERROR NO. 7 - MR. LOUVIERE'S FAULT
It is the law of this circuit, and the second and third circuit courts of appeal, that the fault of the tortfeasor should be quantified along with the fault of negligent parties.
The fundamental error of the trial court in this case was its failure to quantify the fault of all who were at fault. In Bell v. Ayio, 97-0534 (La. App. 1 Cir. 11/13/98), 731 So.2d 893, writ denied, 98-3115 (La. 2/5/99), 738 So.2d 7, this court made the following analysis:
Louisiana Civil Code article 2323 provides:
A. An any action for damages where a person suffers injury , death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury , death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury , death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.
This wording of the Civil Code article was the result of a 1996 amendment. 1996 La. 1st Ex.Sess., Acts. No. 3, ยง 1. The Louisiana Supreme Court, in Keith v. United States Fidelity & Guaranty Company, 96-2075 (La.5/9/97), 694 So.2d 180, 182-183, stated:
Comparing La.Civ.Code art. 2323, as amended, to its predecessor, it is apparent that the basic structure for comparative fault is unchanged. However, we observe that the Legislature added more specific language to Art. 2323 making it mandatory for the determination of the percentage of fault of all persons contributing to an injury , whether those persons are unidentified non-parties, statutorily immune employers, or others.
After carefully considering Act 3, we find that the legislative amendment of La.Civ.Code art. 2323 was procedural legislation.
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