Poche v. Allstate Insurance Co.3/1/2005
AFFIRMED
The Defendant, United Services Automobile Association (USAA), and the Plaintiffs, Jeanne Poche and Francis Poche, appeal from a personal injury judgment and a subsequent judgment setting costs. We affirm.
Jeanne Poche, a 21 year old student, injured her left shoulder and neck in an automobile accident on July 3, 1995, when a car she was driving was struck by a car driven by Defendant, Jan Corpora (Corpora). The car driven by Jeanne Poche was owned by her father, Francis Poche. On June 3, 1996, the Plaintiffs filed suit against Corpora and her insurer, Allstate Insurance Company (Allstate), and USAA, Francis Poche's uninsured/underinsured motorist carrier.
In August of 1998, Corpora and Allstate were dismissed from the suit, following a settlement for policy limits of $25,000, plus interest. A jury trial was held on February 4 and 5, 2002. The jury returned a verdict in favor of Jeanne Poche in the amount of $20,000 for past pain and suffering and $6,400 (out of a total of $38, 454.66) in medical expenses. The award totaled $26,400. The jury did not award any damages for mental anguish, permanent physical impairment or loss of enjoyment of life. The jury verdict was reduced to judgment, which included credits for the settlement amount of $25,000 plus interest and for $40,000 tendered by USAA prior to trial. The Plaintiff filed a motion for JNOV or New Trial. The new trial was granted on October 21, 2002. Supervisory writs were taken by USAA, challenging the judgment granting the new trial. Writs were denied both by this Court in January of 2003 and the Louisiana Supreme Court in April of 2003.
Prior to the new jury trial, the Plaintiff filed a notice to take a second deposition of her surgeon, Dr. Felix Savoie, whose first deposition was used in lieu of live testimony. USAA filed for a protective order. Following a hearing, the trial judge denied the protective order, allowing the Plaintiff to take the second video deposition, which would also be used in lieu of live testimony. In January of 2004, both parties filed motions in limine related to Dr. Savoie's deposition. Of relevance here is the Plaintiff's request to insert portions of the first video deposition into the second video deposition. The trial judge granted the Plaintiff's motion over USAA's objection, but ordered the Plaintiff to indicate, for the benefit of the jury, which portions of the first deposition had been inserted.
A second jury trial was held on January 27, 28 and 30, 2004. The jury awarded Plaintiff $35,040 for past physical pain and suffering, $1,480 for future physical pain and suffering, $4,380 for past mental anguish and distress, $1,480 for future mental anguish and distress, $38,454.66 for past medical expenses, $0 for future medical expenses, $14,600 for permanent physical impairment and $22,265 for loss of enjoyment of life. The award totaled $117,699.66. A judgment in conformity with the verdict was rendered on February 5, 2004, which gave the same credits as the first judgment and awarded costs to the Plaintiff, with the amount to be fixed by a subsequent rule. The following day, the Plaintiff filed a Motion to Fix Fees of Experts and Recognize Court Costs requesting a judgment in the full amount of their costs, $25,622.26. The matter was heard on March 22, 2004. On May 19, 2004, the trial judge rendered a judgment in favor of the Plaintiff for costs in the amount of $19,280.91. USAA and the Plaintiff appealed from both judgments.
USAA raises three issues on appeal. It first contends that the trial judge erred in granting the motion for new trial, that he erred in allowing the second deposition to be supplemented with inserts from the first deposi
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