Clavern ADAMS, et al. v. CANAL INDEMNITY COMPANY, et al., 760 So. 2d 1197

12DECUIR, Judge. Plaintiffs, Clavern Adams, Cleveland Joiner and Christopher Lee, sued Brent Trahan, the driver of an eighteen-wheeler, after being struck by Trahan. Also sued was Blake Fontenot, d/b/a Blake’s Trucking, the owner of the eighteen-wheeler, and Canal Indemnity Company, his liability insurer. Both Plaintiffs and Defendants appeal the trial court judgment, entered pursuant to a jury verdict.

The jury concluded that each Plaintiff employed fraudulent acts to enhance his claims and apportioned ten percent of fault to Adams, the driver of the Plaintiffs’ vehicle, forty percent to Fontenot, and fifty percent to Trahan. The jury awarded full reimbursement for medical expenses to each Plaintiff, but awarded only nominal damages. FACTS On October 5, 1993, while traveling on U.S. Highway 167, Clavern Adams’ vehicle was struck on the driver’s side by the trailer of an eighteen-wheeler which was driven by Brent Trahan and owned by Blake Fontenot.

Cleveland Joiner and Christopher Lee were passengers in the white Chevrolet extended cab pickup truck. Joiner and Lee were also employees of Adams’ family tree service business. At the site of the accident, Highway 167 is a four-lane concrete roadway within the city limits of Maurice, Louisiana. Brent Trahan was in the left lane when the trailer disconnected, slid into the right lane, and hit Clavern Adams’ truck as he passed the eighteen wheeler. The pickup truck was struck on the B-pillar by the corner of the trailer. The B-pillar is located immediately behind the driver’s side door.

The majority of the impact was absorbed by the B-pillar and resulted in a gouge in the frame of the B-pillar. |3As a result of this accident, Clavern Adams was injured. Ultimately shoulder surgery and an anterior cervical fusion were performed. Cleveland Joiner underwent surgery on a L4-5 herniated disc. He also experienced back spasms. Christopher Lee suffered a back and nerve strain. All three Plaintiffs testified that they have been unable to return to the heavy manual labor they had been performing at Adams Tree Service, Clavern Adams’ family’s business.

A trial was held, at the conclusion of which, Plaintiffs, Joiner and Lee, moved for a directed verdict on liability against Defendants, Brent Trahan and Blake Fon-tenot. The court granted Joiner’s motion; however, Lee’s motion was denied. After substantial argument on the issue, the trial court denied the Plaintiffs’ requested jury charge that the time and circumstances surrounding the Plaintiffs’ hiring of counsel were irrelevant and should not be considered. Furthermore, over the Plaintiffs’ objection, the trial court included a jury interrogatory on fraud.

After several hours of deliberations, the jury found the three Plaintiffs committed fraud as revealed in the responses to jury interrogatories.

The jury found Clavern Adams to be ten percent at fault and Brent Trahan and Blake Fontenot ninety percent at fault and awarded damages as follows: Clavern Adams Past and future medical expenses: $45,194.15 Past and future lost wages: $ 0 Loss of future earning capacity: $ 0 General damages: $ 225.00 $45,419.15 Cleveland Joiner- Past and future medical expenses: $38,758.68 Past and future lost wages: $ 0 Loss of future earning capacity: $ 0 General damages: $ 500.00 $39,258.68 UChristoplier Lee Past and future medical expenses: $ 9,089.66 Past and future lost wages: $ 0 Loss of future earning capacity: $ 0 General damages: $ 225.00 $ 9,314.66 Judgment on the jury’s verdict was entered by the trial court and the Plaintiffs’ awards were reduced by ten percent.

The Plaintiffs were assessed one-third of the court costs (to be divided pro rata). Joiner’s post-trial JNOV motions were denied. The Defendants’ post trial motions were also denied. All parties appeal. Defendants limited their appeal to quantum; they did not appeal the liability finding of the jury. SYSTEMATIC EXCLUSION OF AFRICAN-AMERICAN JURORS By their first assignment, Plaintiffs contend that the trial court erred in allowing the Defendant to systematically exclude African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Edmonson v.

Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). This issue is not properly before this court. Courts of this state have consistently held that a party to a civil suit who seeks review of a Batson/Edmonson issue, must do so by an application for supervisory writs. Freeman v. Humble, 27,419 (La.App. 2 Cir. 9/27/95); 661 So.2d 652; Phillips v. Winn Dixie Stores, Inc., 94-354 (La.App. 4 Cir. 2/23/95); 650 So.2d 1259, writ denied, 95-748 (La.4/28/98); 653 So.2d 599. An appeal after trial is not permitted. Id. Therefore, we decline to consider the merits of this issue.

FRAUD INSTRUCTIONS By this assignment of error, the Plaintiffs contend the trial court erred in instructing the jury on fraud and allowing an interrogatory on fraud. The instructions on fraud which were given to the jury stated as follows: | fiThe defendants in this case have made an allegation that one or more of the plaintiffs have committed fraud. Fraud is a misrepresentation or suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

Fraud in this case must be shown by a preponderance of the evidence, that is, that fraud is more likely than not. Fraud may not be presumed but must be proven. Additionally, the law authorizes proof of fraud by circumstantial evidence, including highly suspicious facts and circumstances. You may also consider a history of prior acts but only insomuch as those prior acts show a pattern, motive, or whether the plaintiffs had the ability and experience to execute a fraudulent scheme.

If you find that fraud on the part of one or more of the plaintiffs exists, you are entitled to .consider this in reaching your verdicts to that or those plaintiff by whom you find fault. This jury charge is taken from the definition of fraud in La.Civ.Code art. 1953 and from the sources cited in Williamson v. Haynes Best Western of Alexandria, 95-1725 (La.App. 4 Cir. 1/29/97); 688 So.2d 1201, writ denied, 97-1145 (La.6/20/97); 695 So.2d 1355. The pertinent inquiry for this court is whether the instruction was so confusing or misleading that the jury was prevented from doing justice. Francis v.

Brown, 95-1241 (La.App. 3 Cir. 3/20/96); 671 So.2d 1041. We find the language of this instruction to be neither misleading or confusing. Accordingly, this assignment has no merit. 1 PRIOR CLAIMS EVIDENCE Plaintiffs contend the trial court erred in admitting evidence of prior and subsequent accident claims. We disagree. Daigle v.

Coastal Marine, Inc., 482 So.2d 749 (La.App. 1 Cir.1985), writ granted and rev’d in part on other grounds, 488 So.2d 679 (La.1986) delineates the proper use of prior claims evidence at trial and notes the difficulty of determining when such evidence should or should not be allowed: [T]he need for the exposure of fraudulent claims comes in conflict with the need for the protection of innocent litigants from unfair prejudice.

At..'two extremes the practice is fairly well agreed upon.. |fiThus, when it is sought to be shown merely that the. plaintiff is a chronic litigant, or a chronic personal injury litigant, the courts consider that the slight probative value is overborne by the danger of prejudice, and they exclude the evidence. At the other extreme, if it is proved not merely that the former claims were similar to the present claim and were false and fraudulent, then the strong relevance of these facts to evidence the falsity of the present claim is apparent and most courts admit them.

The intermediate situation is the difficult one. The evidence is that the present party, now suing for a loss claimed to be accidental, such as a loss of property by fire, or personal injury in a collision, has made repeated previous claims of similar losses. Here the relevance is based on the premise that under the doctrine of chances repeated injuries of the same kind are unlikely to happen to one person by accident. On the other hand, this evidence is prejudice-arousing and standing alone would seldom be sufficient to support a finding of fraud.

It seems that the judge, balancing in his discretion probative value against prejudice, should admit the evidence only when the proponent has produced or will produce other evidence of fraud. [Emphasis added.] Id. at 750-751, quoting McCormick’s Handbook of Law of Evidence, § 196, pp. 466^167 (E. Cleary ed., 2d ed.1972). In the intermediate situation, when there is evidence of repeated prior claims of a similar nature, the evidence is relevant to show that plaintiff has exceeded his likely chances of repeated, accidental injury of the same kind.

In such an event, the evidence may be admitted where the proponent “has produced or will produce other evidence of fraud.” This is just such a case. The Defendants presented evidence that a substantial amount of damage to' Plaintiffs vehicle was caused after the accident. This was supported by photographic evidence. Nevertheless, Plaintiffs insist all the damage occurred in the accident. Defendants also introduced evidence that Plaintiffs changed their story about where they were sitting in the truck to suggest a position nearer the point of impact.

Under these circumstances, the trial court did not err in admitting the prior claims evidence. There was substantial evidence of fraudulent acts by the |7Plaintiffs throughout the investigation of this matter. The probative value of the evidence greatly outweighed the potential prejudicial effect; thus, the evidence was admissible. This assignment has no merit.

ADMISSION OF EVIDENCE By these assignments Plaintiffs contend the trial court erred: 1) in failing to exclude evidence regarding refusal to submit to pre-litigation independent medical examinations (IMEs) and recorded statements; 2) in admitting evidence concerning Plaintiffs’ retention of counsel; and 3) in admitting evidence concerning the stabbing injury suffered by Lee. At the outset, we note that the trial court’s discretion concerning the admission of evidence is vast. Haynes v. Calcasieu Medical Tmnsp.

Inc., 97-300 (La.App. 3 Cir. 10/29/97); 702 So.2d 1024, writs denied, 98-355 (La.3/27/98); 716 So.2d 888 and 9&-360 (La.3/27/98); 716 So.2d 889. Moreover, the trial court’s decision to admit or exclude evidence will not be reversed on appeal unless it is clearly shown that it has abused that discretion. Lemoine v. Hessmer Nursing Home, 94-836 (La.App. 3 Cir. 3/1/95); 651 So.2d 444. We have carefully reviewed the record in relation to Plaintiffs’ assignments.

The record reveals that the evidence regarding pre-litigation statements and Plaintiffs’ retention of counsel was either raised by Plaintiffs in argument or on cross examination. Likewise, the evidence regarding Lee’s stabbing was elicited when the defense exposed Lee’s attempt to mislead the jury regarding his disability. The only remaining issue involves the IMEs. Defendants contend that by having surgery without submitting to an IME, the Plaintiffs destroyed evidence vital to their defense.

The fact that the Plaintiffs were unwilling to cooperate with IMEs to ascertain the nature and extent of their injuries was clearly relevant to the fraud allegations asserted |sby the Defendants. Any prejudicial effect would have been merely cumulative in light of other evidence presented. Under these circumstance, we cannot say the trial court abused its vast discretion in admitting the evidence complained of by the Plaintiffs. MOTION IN LIMINE Lee contends in this assignment that the trial court erred in denying his motion to exclude the testimony of defense expert, R.L. Fox.

It is well settled that the qualification of a witness as an expert is within the trial court’s wide discretion, and such a determination will not be disturbed on appeal absent a showing of manifest error. Mitchell v. Fradella, 628 So.2d 1198 (La.App. 3rd Cir.1993), writ not considered, 94-0079 (La.3/11/94); 634 So.2d 405. The fact that Fox’s methodology was different from that used by the Plaintiffs’ expert does not negate Fox’s qualifications based on his experience with the Louisiana State Police. We find no manifest error in the trial court’s ruling.

ALLOCATION OF FAULT The jury concluded that Defendants, Brent Trahan and Blake Fontenot, were fifty percent and forty percent at fault, respectively, and Plaintiff, Clavern Adams, was ten percent at fault. Plaintiffs contend this allocation of fault was erroneous. Causation and apportionment of fault are questions of fact, and the fact finder’s determinations should not be overturned absent a showing of manifest error. Williams v. Allstate, 599 So.2d 478 (La.App. 3 Cir.1992). We are further mandated to view the evidence in the light most favorably supporting the trial court judgment. Rosell v.

ESCO, 549 So.2d 840 (La.1989). If the trial court’s determination is reasonable in light of the record reviewed in its entirety, the court of appeal may not 1 flreverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. In determining percentages of fault cast, if any, the trier of fact should consider both the nature of the conduct of each party and the extent of the causal relation between the conduct and the damages claimed. Tenpenny v. Ringuet, 95-1036 (La.App. 3 Cir. 3/6/96); 670 So.2d 644, writ denied, 96-0880 (La.5/17/96); 673 So.2d 612.

After reviewing the record, we find no manifest error by the trial court. FINDINGS OF FRAUD The Plaintiffs contend that the jury erred in finding that they committed fraud. However, we find the record in this case easily supports the jury’s findings. There is evidence- that the Plaintiffs lied about the extent of damage to their vehicle and their respective locations in the vehicle. There is evidence that the Plaintiffs magnified symptoms, destroyed medical evidence, lied about the nature and extent of their injuries and resulting disabilities, and generally participated in a fraudulent scheme.

Under these circumstances, we conclude the jury’s findings are supported by the record and, therefore, are not manifestly erroneous. This assignment has no merit. MOTION TO STRIKE JURY Lee contends the trial court erred in denying his motion to strike the jury because the good faith amount in dispute was below $50,000.00. We disagree. It is true that a jury trial is not available where the amount in dispute does not exceed $50,000.00. La.Code Civ.P. art. 1732.

However, procedural maneuvers designed solely for purposes of depriving-a litigant of his right to a jury trial based on jurisdictional amount are disfavored. Bullock v. Graham, 96-0711 (La.11/1/96); 110681 So.2d 1248; Black v. Prudential Property & Casualty Insurance Company, 93-878 (La.App. 3 Cir. 3/2/94); 634 So.2d 1340. The trial judge concluded that Lee’s motion was a mere legal maneuver. He noted that Lee had been ready to proceed to trial when previously scheduled and only thirty or so days before trial sought to strike the jury.

The trial court has vast discretion in determining whether to refuse or allow amendments to the pleadings after an answer is filed and its determination will not be disturbed on appeal- absent an abuse of that discretion. Tenpenny, 670 So.2d 644. Under these circumstances, we do not believe the trial court ' abused its discretion in denying Lee’s motion-to strike the jury. This assignment has no merit. DAMAGES Both Plaintiffs and Defendants contend the trial court erred in its’ award of damages. They contend the trial court’s award of all claimed medical damages and minimal general damages is inconsistent.

Plaintiffs would have us increase the general damage award, while the Defendants suggest a reduction of special damages. We find neither course of action warranted. While on its face the award seems inconsistent, the question before us is not a new one. We are particularly impressed with the reasoning of our brethren of the Fourth Circuit who recently visited the same issue: We are aware of the general rule set forth in Odendahl v. Wild, [418 So.2d 36 (La.App. 4 Cir.1982)], that it is an error of law for the trier of fact to award medical expenses but none for general damages.

In that case, the court found that the plaintiff had proven that she suffered a lower back sprain that caused pain and suffering for months and for which she incurred the medical expenses awarded. There, was also no issue as to causal connection between the accident and the injury. In Olivier v.

Sears Roe buck & Co., [499 So.2d 1058 (La.App. 3 Cir.1986)], however, the appellate court held that the general rule did not apply where the evidence furnished a reasonable factual basis for the jury’s finding that the plaintiff had not sustained injuries to her neck, arms and shoulders as a result of the accident where she had Ina history of arthritic problems in those areas which were unrelated to the accident. Most recently in Tchiblakian v.

State Farm Mutual Automobile Insurance Company, et al, 97-2287 (La.App. 4 Cir. 4/8/98), 711 So.2d 360, rehearing denied, [writ denied, 98-1689 (La.11/6/98): 728 So.2d 390], we upheld a jury’s award to a plaintiff for medical expenses but no general damages, where the jury apparently found the plaintiffs testimony was not credible. In that case, plaintiff filed suit for damages sustained in a car accident. The jury awarded the plaintiff medical expenses of $12,000 and no other damages.

On defendant’s post-trial Motion for Judgment Notwithstanding a Verdict, the trial judge, sua sponte, awarded plaintiff $25,000 in general damages pursuant to Odendahl. We vacated that part of the trial court’s judgment, and after reviewing the entire record, particularly the plaintiffs testimony and the jury’s answers to written interrogatories, found the jury did not err in awarding the plaintiff medical expenses but no general damages. The record clearly supported the conclusion that plaintiffs back pain and mental condition were not the result of the accident.

In this case, we find the general rule is not applicable in view of the jury’s response to written interrogatories. Specifically, jury interrogatory no. 6 asked, “What do you find to be the amount of Lee Gauthreaux’s damages (if any)?” The jury answered as follows: a. Past medical and hospital expenses: $ actual b. Pain and suffering, physical and mental: $ 0 c. Past and future lost wages: $ 0 d.

Loss of earning capacity: $ 0 The most logical explanation for the award based on our review of the record is that the jurors were convinced that plaintiff had sustained no objective injuries as a result of her hospitalization at St. Jude and treatment by Dr. Frank and intended only to award plaintiff a reimbursement or refund for her dissatisfaction with the medical services. The jury was presented with mixed factual circumstances and medical testimony....

Like the juries in Olivier and Tchiblakian, the jury concluded that there were no objective injuries sustained by plaintiff as a result of her hospitalization for which to compensate plaintiff. The jury’s finding is reasonable and will not be disturbed on appeal. Gauthreaux v. Frank, 96-2829, pp. 30-32 (La.App. 4 Cir. 7/1/98); 718 So.2d 985, 998-99; writ denied, 98-2496 (La.11/25/98); 729 So.2d 567. In this case, the most logical explanation is that the jury concluded that the Plaintiffs sustained some injuries and awarded medicals.

However, it is also logical | ^to conclude that the jury considered the fraud committed by the Plaintiffs and determined that further damages were not warranted. REDUCTION OF AWARD Joiner and Lee contend the trial court erred in reducing their respective awards in proportion to their immune employer’s fault. We agree. The trial court properly applied La.Civ.Code art. 2324 as it is currently written. However, this accident occurred in 1993, well before the 1996 amendments to the statute. The supreme court has held that the current requirement of

article 2324 that a plaintiffs recovery be reduced for the immune employer’s fault does not apply retroactively. Aucoin v. Dept. of Transp. & Dev., 97-1938, 97-1967 (La.4/24/98); 712 So.2d 62. Therefore, the controlling law is Cavalier v. Cain’s Hydrostatic Testing, Inc., 94-1496 (La.6/30/95); 657 So.2d 975. The Cavalier court concluded that

article 2324 did not require that a plaintiffs recovery be reduced for the immune employer’s fault. Id. Accordingly, the trial court erred in reducing the recovery of Plaintiffs, Lee and Joiner, in proportion to the fault of their immune employer, Adams. The judgment of the trial court is hereby amended as follows: Cleveland Joiner’s award of $35,322.76 is increased to $39,258.68 and Christopher Lee’s award of $8,383.19 is increased to $9,314.66. COURT COSTS Plaintiffs contend the trial court erred in assessing them with one third of the court costs. We disagree.

A trial court is given great discretion in taxing court costs in any manner it deems equitable. La. Code Civ.P. art. 1920. It is the general rule that a party cast in judgment is taxed with the costs of the proceedings. However, the trial court may |13assess costs in any equitable manner and its assessment will not be reversed on appeal in the absence of an abuse of discretion. Este’ v. State Farm Ins. Co., 96-99 (La.App. 3 Cir. 7/10/96); 676 So.2d 850.

In this case, where there was considerable evidence of fraud on the part of the Plaintiffs, we find no abuse of discretion in the trial court’s assessment of costs. In light of our previous determinations, Lee’s final assignment of error regarding the denial of a directed verdict need not be addressed. CONCLUSION For the foregoing reasons, the judgment of the trial court is affirmed as amended. All costs of this appeal are taxed to Plaintiffs-Appellants. AFFIRMED AS AMENDED. THIBODEAUX, J., dissents and assigns reasons.