Another Case of Bad Facts = Bad Law in Louisiana: Rachal v. Brouillette and the Separate Elements on Verdict Form

Rachal v. Brouillette, 12-794 (La.App. 3 Cir. 3/13/13), 111 So.3d 1137, 1142-43, writ denied, 2013-0690 (La.5/3/13), 113 So.3d 217, the Louisiana Third Circuit Court of Appeal, meeting en banc, reviewed a case involving a father who filed a wrongful death action on behalf of his minor son, Nicholas, against a motorist and the motorist’s insurer in connection with a vehicle-pedestrian collision that killed the son’s mother.

After defendants admitted liability and following the jury trial on damages was held, a jury in the Ninth Judicial District Court, Rapides Parish, awarded $2,800,000.00 in compensatory and $100,000.00 in exemplary damages.

The Court of Appeal, with Chief Judge Thibodeaux writing the majority opinion, held that:

(1) verdict form that separated general damages into one line for mental anguish, grief, and anxiety, another line for loss of love and affection, and an additional line for loss of society, service, and consortium, was not duplicative, overruling Hardy v. Augustine, 55 So.3d 1019;

(2) award of $2,500,000 in general damages was not excessive;

(3) award of $300,000 in damages for loss of financial support was not excessive;

In reviewing this decision, the Court of Appeal ruled that the award of $2,500,000 in general damages was not excessive because:

1. the child was ten years old, and

2. he enjoyed a close, loving relationship with his mother though his parents were separated and he lived primarily with father,

3. his mother was extremely involved in ensuring that minor was in best environment for his attention deficit hyperactivity disorder (ADHD),

4. the minor suffered from hallucinations and suicidal thoughts and gained extraordinary amount of weight after mother’s death, and

5. his father described how minor had left school more than once to visit mother’s grave and cry.

In addition, the additional award of $300,000 in damages for loss of financial support was not excessive in wrongful death action brought on behalf of minor in connection with his mother’s death in vehicle-pedestrian collision; while mother’s income of $14,322 in the year she died was not dramatically high, the steady increase in her income each year suggested she would have continued to strive to improve her financial situation, mother financially contributed to minor’s upbringing in maintaining joint custody with father, and jury evidently believed that mother would have provided for her son until she reached the limits of her work life expectancy, some thirty years in the future.

Jury Verdict Form

The defendants in the Rachal case, State Farm and Mr. Brouillette, argued that the trial court erred by submitting a verdict form to the jury that separated the elements of the general damage award. Specifically, the jury verdict form contained a separate line for mental anguish, grief, and anxiety, to which the jury awarded Nicholas $1,000,000 and a separate line for loss of love and affection, to which the jury also awarded him $1,000,000. Defendants asserted that these two elements were duplicative, but the Court of Appeal disagreed.

The court reasoned that the Louisiana Civil Code Article 2315 mandates that “a tortfeasor must compensate a tort victim for all of the damages occasioned by his act.” Compensatory damages are divided into special damages and general damages. General damages include physical and mental pain and suffering, inconvenience, loss of gratification, and other losses of lifestyle that cannot be definitively measured with money. McGee v. A C And S, Inc., 05–1036 (La.7/10/06), 933 So.2d 770. These damages are “routinely dissected” on jury verdict forms. Id. at 774.

As long as the damage elements are conceptually distinct from one another, the trial court has discretion to separate them on the verdict form. Id. A prior panel of this court addressed this issue and determined that loss of love and affection and mental anguish, grief, and anxiety are not conceptually different and should not be separated on the jury verdict form. Hardy v. Augustine, 10–946 (La.App. 3 Cir. 2/2/11), 55 So.3d 1019. That court held that grief is the expression of the loss of love and affection that the plaintiff experiences, not a distinct element of damage.

The court of appeal in Rachal disagreed. The court of appeal in Rachel indicated that “mental anguish, grief, and anxiety, on one hand, and loss of love and affection, on the other hand, are independent concepts.

Mental anguish and grief refers to the “pain, discomfort, inconvenience, anguish, and emotional trauma” that accompany the injury. McGee, 933 So.2d at 775. In this case, it refers to the initial shock, anxiety, and distress that a ten-year old experiences as a result of the loss of a parent.

Loss of love and affection, on the other hand, goes beyond the initial grief and emotional trauma. The court stated:

“These damages compensate Nicholas for the enduring and irreversible loss of his mother. While grief and anguish will wane over time, Nicholas will always feel the absence of the traditional characteristics of the mother-son relationship. Put another way, grief is the presence of an emotion as a result of a loved one’s death. Loss of love and affection, however, is the absence of an experience; specifically, the absence of a love previously bestowed.”

These two categories are distinct and separate injuries that Nicholas experienced and will continue to experience as a result of his mother’s premature and wrongful death. Accordingly, the court of appeal affirmed the trial court’s decision to separate them on the jury verdict form.

The decision to separate the categories must still be evidentiary-based and is contingent upon adequate and sufficient proof that both damages are appropriate. Further, as always, the makeup of the jury verdict form is within the trial court’s discretion. Finally, Hardy v. Augustine is overruled to the extent that it deviates from the court of appeal’s opinion in the Rachal case.

The jury also awarded $500,000.00 to the minor child in the Rachal case for loss of society, service, and consortium. Defendants in the Rachal case also argued that loss of society, service, and consortium, which was a separate line on the verdict form, is duplicative of loss of love and affection and mental anguish and grief. The court of appeal found no merit in this argument.

The factors of a loss of consortium claim include: (1) loss of society and companionship; (2) loss of support and family income; and (3) loss of performance of material services, including educational and household help for children. Kilpatrick v. Alliance Cas. and Reinsurance Co., 95–17 (La.App. 3 Cir. 7/5/95), 663 So.2d 62, writ denied, 95–2018 (La.11/17/95), 664 So.2d 406. These factors are noticeably different from the elements of loss of love and affection and mental anguish and grief.

Further, Louisiana courts regularly allow the jury to award a separate amount for loss of service, society, and consortium. See, e.g. Brossett v. Howard, 08–535 (La.App. 3 Cir. 12/10/08), 998 So.2d 916, writ denied, 09–77 (La.3/6/09), 3 So.3d 492. Accordingly, the court of appeal affirmed the trial court’s decision to separate these categories on the jury verdict form.

General Damage Award Review

Defendants in the Rachal case also asserted that the award of $2,500,000 in general damages was excessive, in addition to the verdict form being duplicative and misleading. The court of appeal reviewed the damage award for abuse of discretion. The court of appeal noted that only if no reasonable trier of fact could award Nicholas $2,500,000 would they disturb the award. Youn, 623 So.2d 1257.

The court of appeal noted that Nicholas enjoyed a close, loving relationship with his mother. Although his parents were separated and Nicholas lived primarily with his father, he spent most weekends with his mother. Ms. Isaac and Mr. Rachal went to great lengths to ensure their son was in the best environment for him considering his struggles with ADHD. This thoughtfulness and attention shows Ms. Isaac was extremely involved in her son’s life. Defendants try to minimize the effects of Ms. Isaac’s death on Nicholas; however, the evidence suggests that Nicholas has endured severe physical and mental trauma as a result of this tragedy. Following his mother’s death, Nicholas suffered from hallucinations and suicidal thoughts and gained an extraordinary amount of weight. Nicholas’s father described how Nicholas has left school on more than one occasion to visit his mother’s grave and cry. The jury was apparently convinced that Ms. Isaac’s death had a profound effect on Nicholas. This finding is not clearly wrong; therefore, the jury did not abuse its discretion by awarding $2,500,000 in general damages.

Loss of Financial Support

Defendants in the Rachal case also contended that the jury erroneously awarded Nicholas loss of financial support damages. The court of appeal found no merit in this contention. It was noted by this court that the factors considered for an award of loss of financial support include the decedent’s present earnings; age and life expectancy; the minor’s age at the time of decedent’s death; the decedent’s work life expectancy; the possibility of a decrease or increase in earnings with age; and any other factors relevant to the premature demise of the decedent. Nigreville v. Federated Rural Elec. Ins. Co., 93–1202 (La.App. 3 Cir. 7/13/94), 642 So.2d 216, writ denied, 94–2803 (La.1/27/95), 649 So.2d 384. A

Although Ms. Isaac’s income of $14,322 the year she died was not dramatically high, it steadily increased each year, suggesting she would have continued to strive to improve her financial situation had she lived. Ms. Isaac clothed Nicholas, fed him, and took care of him. Defendant in Rachal argued that because Mr. Rachal did not present testimony regarding exactly how much money Ms. Isaac contributed to raising her son, we should presume she did not contribute anything. Common sense, however, dictates that since Ms. Isaac and Mr. Rachal maintained joint custody of Nicholas, Ms. Isaac financially contributed to her son’s upbringing. Further, the jury evidently believed that Ms. Isaac would have provided for her son until she reached the limits of her work life expectancy, some thirty years in the future. Although $300,000 may be on the higher end of the scale, the court of appeal determined that it was not abusively high.

Conclusion:

The judgment of this case was far beyond the insurance coverage; therefore, what was awarded and what was ultimately paid is drastically distinct, but this is just another case in which, bad facts of defendant under the influence of drugs (marijuana and hydrodone) punishes the insurance industry.

If you would like a copy of this case, please contact me at perkins@perkinsfirm.com or call me at 318-222-2426. In the meantime, if you need assistance with anything in North Louisiana or Northeast Texas, please don’t hesitate to call.

Mark Perkins