Martin v. SAFEWAY INSURANCE CO. OF LOUISIANA

26 So.3d 777 (2009) Margie F. MARTIN v. SAFEWAY INSURANCE CO. OF LOUISIANA, et al. No. 08-1419. Court of Appeal of Louisiana, Third Circuit. April 15, 2009. Rehearing Granted November 5, 2009. Opinion Granting Rehearing December 30, 2009. *778 Gary J. Ortego, Attorney at Law, Ville Platte, LA, for Plaintiff/Appellee, Margie F. Martin. Gregory J. Laborde, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Robert Gallow. Melissa F. Doise, Borne & Wilkes, Lafayette, LA, for Defendant/Appellant, Safeway Insurance Company of Louisiana. Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges. PICKETT, J. The defendant, Safeway Insurance Company of Louisiana (hereinafter Safeway), appeals a judgment of the trial court finding coverage in favor of an excluded driver who was involved in an accident while operating the insured's vehicle. We reverse the judgment of the trial court. FACTS We quote the facts from the trial court's written reasons for judgment: The matter before the court arises from an automobile accident which occurred on July 26, 2006. From the evidence presented at trial, it appears unchallenged that the vehicle being operated by plaintiff was struck by a vehicle being driven by defendant, Robert Gallow (hereinafter referred to as "Gallow"). Gallow's actions and/or omissions were the sole cause of the accident. This portion of the case presents little challenge for the court. The same cannot be said with regard to insurance coverage. Defendant, Safeway Insurance Company of Louisiana (hereinafter referred to as "Safeway") admits that it had issued a liability policy to the owner of the vehicle driven by Gallow, Mr. Lyndon Ardoin (hereinafter referred to as "Ardoin"). Safeway, however, denies coverage as a result of an exclusion of named drivers which purports to exclude coverage with respect to damages caused as a result of the operation of the insured vehicle by Gallow. Thus, the only issue presented for our consideration on appeal is the interpretation of the "named driver exclusion" in the Ardoin policy which excluded Gallow from coverage as an insured driver. *779 LAW AND DISCUSSION Both the trial judge and the appellee rely heavily on a case decided by a panel of this court: Khaliq v. Progressive Sec. Ins. Co., 06-1207 (La.App. 3 Cir. 2/7/07), 950 So.2d 933, writs denied, 07-471 (La.4/22/07), 955 So.2d 688. We do not disagree with the outcome in the Khaliq case; however, we find it is not applicable to the case at bar as the issue in Khaliq dealt with collision coverage not with liability coverage as in this case. In Khaliq, Progressive Security Insurance Company (Progressive) appealed the trial court's finding of coverage and granting of a $18,296.72 judgment against it and in favor of its insured, Farhad Khaliq. At the time of the accident, Mr. Khaliq's vehicle was being driven by his son, a named excluded driver under the Progressive policy. Mr. Khaliq had already settled with the owner of the other vehicle for $8,269.72 as payment for his property damage. Mr. Khaliq attempted to collect from Progressive under his collision coverage (a situation wherein the liability of the driver has no bearing) and when Progressive resisted, filed suit. The trial court in Khaliq relied on Bryant v. United Servs. Auto. Ass'n, 03-3491, 04-28 (La.9/9/04), 881 So.2d 1214, to find coverage. We note that in the instant case, the trial court and the appellee also cite Bryant to support their position. We find that case also inapplicable to the case before us. In Bryant, the court was asked to decide "the narrow issue of whether La. R.S. 32:866, the `no pay, no play' law, applies to bar a portion of a named insured's recovery of her own bodily injury and/or property damages when an excluded driver is involved in an accident while driving the named insured's vehicle." Id. at 1215 (emphasis ours). Bryant involved two consolidated cases, one in which an excluded driver was driving the insured vehicle with the insured's permission and the other in which an excluded driver was driving the insured vehicle without the insured's permission. The court concluded that La. R.S. 32:866, the "no pay, no play" law, should apply in situations where the named insured gave permission to drive the insured vehicle to an excluded driver, but should not apply if an excluded driver was driving the insured vehicle without the insured's permission. We note however, that the Bryant case involved two conflicting decisions from different appellate circuits wherein each of the insured owners of damaged vehicles brought suit against the tortfeasor-defendant-drivers of the other vehicles. The only issue in Bryant dealt with the "no pay, no play" law, La. R.S. 32:866, and whether that law should apply to partially bar the plaintiff-named insured's own recovery. In the case before us, the plaintiff is seeking to recover from the insurer of an insured vehicle which was being operated by a tortfeasor-named excluded driver pursuant to La. R.S. 32:900(L)(1). That section, which deals with motor vehicle liability coverage, states in part that: an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement. For the purposes of this Subsection, the term "named insured" means the applicant *780 for the policy of insurance issued by the insurer. (Emphasis ours). In this case the tortfeasor, a named excluded driver, seeks protection from personal liability by seeking to become an insured, under a Safeway policy which specifically excluded him from coverage. We note that Safeway knew the tortfeasor, Robert Gallow, was a resident of their insured's household. When Safeway made that determination in early January 2006, it notified its insured, Lyndon Ardoin, by a letter dated January 12, 2006, that Gallow would either have to be added as an insured to Mr. Ardoin's policy or named as an excluded driver. The record reflects that on January 23, 2006, Mr. Ardoin executed an "Exclusion of Named Driver" form excluding Gallow from coverage under his policy. To allow the plaintiff to recover from the defendant, Safeway, in this case would make the terms of La. R.S. 32:900(L) meaningless. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. La. Civ.Code art. 9 (2004)." Lockett v. State, Through Dept. of Transp. and Dev., 03-1767, p. 3 (La.2/25/04), 869 So.2d 87, 90-91. Furthermore, in Munsch v. Liberty Mut. Ins. Co., 05-147, pp. 6-7 (La.App. 1 Cir. 2/10/06), 928 So.2d 608, 612, writs denied, 06-590 (La.5/25/06), 930 So.2d 2 our colleagues of the first circuit have reminded us of the following: A court is bound to follow the language of a relevant law. See La. C.C. arts. 1-4. The jurisprudence has developed additional rules for interpreting laws. In Ransome v. Ransome, 01-2361, p. 8 (La.App. 1 Cir. 04/21/02), 822 So.2d 746, 754 appears the following: Pursuant to the standard rules for statutory construction (1) it is presumed that every provision of law was intended to serve some useful purpose; (2) it is not presumed that the lawmaker intended for any part of a law to be meaningless; (3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; (4) it is the duty of the courts to interpret a provision of law which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and (5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory. See also David v. Our Lady of the Lake Hospital, Inc., 02-2675, p. 11 (La.07/02/03), 849 So.2d 38, 46-47; Gregor v. Argenot Great Central Insurance Company, 02-1138, pp. 6-7 (La.05/20/03), 851 So.2d 959, 964. (Emphasis added.) We find that to allow the decision of the trial court to stand would render La.R.S. 32:900(L) meaningless and violate the well established rules of statutory construction. Accordingly, for the reasons stated the judgment of the trial court is reversed, and the defendant, Safeway Insurance Company, is dismissed with prejudice. All costs of this proceeding are assessed against the plaintiff, Margie Martin. REVERSED AND RENDERED. OPINION ON REHEARING Court composed of SYLVIA R. COOKS, OSWALD A DECUIR, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges. *781 PICKETT, J. We granted rehearing in this case to consider an issue which was over-looked in the original appeal. The excluded driver, Robert Gallow, appealed the quantum of damages awarded. Upon considering that issue, we amend the damage award, and render that award as amended. DAMAGES The trial court awarded the plaintiff general damages in the amount of "$45,00.00, together with medical expenses [of] $1,851.71 and all costs ... with a credit of $10,000.00 as a result of previous payments." The defendant, Robert Gallow, appeals arguing that the general damages awarded by the trial court are so excessive as to constitute an abuse of discretion. We agree. In Brown v. State ex rel. LSU Medical Center Health Care Services Division, 08-273, pp. 7-8 (La.App. 3 Cir. 12/10/08), 998 So.2d 367, 373, writ denied, 09-72 (La.3/6/09), 3 So.3d 491, we reviewed the law applicable to claims of inadequate/excessive damages: In Miller v. LAMMICO, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711, the supreme court noted: An appellate court reviews a trial court's general damage award using the abuse of discretion standard. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976). The trier of fact is afforded much discretion in independently assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 834 (La.1991). An appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993) (the fact finder's discretion in awarding general damages is vast and should rarely be disturbed); Reck v. Stevens[,] 373 So.2d 498, 501 (La.1979). To determine whether there has been an abuse of discretion by the fact finder, the reviewing court looks first to the facts and circumstances of the particular case. Theriot, 625 So.2d at 1340; Reck, 373 So.2d at 501. Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards. Reck, 373 So.2d at 501; Anderson, 583 So.2d at 834; Youn, 623 So.2d at 1261. The record reveals that the accident at issue happened on July 26, 2006. The plaintiff, a legal secretary, did not seek medical treatment for two days. On July 28, 2006, she consulted her family physician, Dr. Charles Fontenot. He diagnosed the plaintiff's injuries as an acute cervical strain superimposed over a prior herniated disc (suffered in an accident 1992) and an acute lumbar strain. Dr. Fontenot prescribed an analgesic, an anti-inflammatory, and a muscle relaxant. The plaintiff returned to Dr. Fontenot and had her prescriptions refilled on August 4, 2006. She was referred for physical therapy, took three treatments (August 14, 15, and 18, 2006), and discontinued the therapy. On August 23, 2006, the plaintiff once again returned to Dr. Fontenot, had her analgesic prescription refilled and a prescription for a different muscle relaxant filled. Thereafter, she said she relied on over-the-counter medications as she had done after the 1992 accident. She saw Dr. Fontenot only twice more—on September 14 and October 16, 2006. He advised her to return as needed. She has neither returned *782 nor consulted another physician. The plaintiff has missed no work, but her employer did provide her with a different chair. She does complain that she has some residual problems with her neck "especially at work, you know, typing, sitting in certain positions and stuff." The plaintiff's total medical expenses, including doctor, MRI, prescriptions and physical therapy total $1,851.71. Considering the plaintiff's diagnoses, the extent and duration of her medical treatment, fact that she sustained no disability, and that she missed no work, we find the general damage award "beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances." Andrus v. State Farm Mutual Automobile Insurance Co., 95-0801, p. 8 (La.3/22/96), 670 So.2d 1206, 1210. It then falls upon us to review prior awards in similar cases to determine the highest award within the trial court's discretion. In Simon v. Lacoste, 05-550 (La.App. 3 Cir.12/30/05), 918 So.2d 1102, the plaintiff was in an accident on I-10 in July 2001. He complained of lower pelvic, back, and neck pain, and left arm numbness. In October 2001 he was diagnosed with thoracic outlet syndrome. The plaintiff recovered slowly amassing over $29,000.00 in medical expenses over the next three years. A jury award him $5,000.00 in general damages which this court raised to $15,000.00. The plaintiff in Henry v. Wal-Mart Stores, Inc., 99-1630 (La.App. 3 Cir. 3/1/00), 758 So.2d 327, writ denied, 00-929 (La.App. 3 Cir. 5/26/00), 762 So.2d 1107, slipped and fell while shopping in the defendant's store. He sustained shoulder, lower back, and leg pain as a result of the accident. The plaintiff saw an orthopedic surgeon approximately five times over a period of ten months for his complaints, and took a number of prescription medications for symptoms. The trial court awarded the plaintiff $22,000.00 in general damages and $721.00 in past medicals, which was affirmed by a panel of this court. In Perry v. Anderson, 99-0230 (La.App. 4 Cir. 1/12/00), 751 So.2d 374, the plaintiff was injured in an automobile accident. He suffered neck and pack pain requiring eight months of treatment including muscle relaxant and anti-inflammatory medications, the use of a TENS unit, and a back brace. He testified that his pain continued three months following his discharge. The appellate court awarded the plaintiff $5,000.00 in general damages. Thus, after review of the record in light of the standard set forth in Brown, 998 So.2d 367, and Miller, 973 So.2d 693, and the cases referenced above, we conclude that $ 37,500.00 is the highest point that was within the trial court's discretion. Accordingly, we lower the award of general damages to $ 37,500.00. Accordingly, for the reasons stated the general damage award of $45,000.00 in favor of the plaintiff, Margie Martin is reduced to $37,500.00. AMENDED AND RENDERED.