Full Opinion (html_with_citations)

KRISHNENDU DEY                           *       NO. 2022-CA-0469

VERSUS                                   *
                                                 COURT OF APPEAL
EDDIE WILLIAMS AND                       *
LYNDON SOUTHERN                                  FOURTH CIRCUIT
INSURANCE COMPANY AND                    *
FIRST CHICAGO INSURANCE                          STATE OF LOUISIANA
COMPANY                            *******



                              APPEAL FROM
               CIVIL DISTRICT COURT, ORLEANS PARISH
                     NO. 2019-07292, DIVISION “G-11”
                     Honorable Robin M. Giarrusso, Judge
                                  ******
                          Judge Daniel L. Dysart
                                  ******
(Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Paula
A. Brown)


Dean Joseph Favret
Angela Cecelia Imbornone
Seth Holden Schaumburg
Lauren A. Favret
Anthony J. Russo,
FAVRET DEMAREST RUSSO & LUTKEWITTE
1515 Poydras Street
Suite 1400
New Orleans, LA 70112

      COUNSEL FOR PLAINTIFF/APPELLEE


Scott A. Cannon
Shannon M. Livermore
Ryan P. Gregoire
CANNON & LIVERMORE, L.L.C.
122 Village St.
Slidell, LA 70458

      COUNSEL FOR DEFENDANT/APPELLANT, FIRST CHICAGO
      INSURANCE COMPANY

                                                   AFFIRMED
                                                DECEMBER 29, 2022
DLD         In this auto tort case, the defendant uninsured/underinsured motorist (UM)
RML
PAB   provider, First Chicago Insurance Company (FCIC), appeals a trial court judgment

      in favor of the plaintiff, Krishnendu Dey, which awarded the plaintiff damages, as

      well as penalties and attorney’s fees due to FCIC’s arbitrary and capricious failure

      to tender the UM policy limits to the plaintiff. For the reasons that follow, we

      affirm the judgment of the trial court.

      FACTS

            On July 18, 2018, the taxicab driven by Mr. Dey was stopped in traffic when

      it was rear-ended by a Nissan Altima driven by Eddie Williams. Mr. Williams was

      insured by Lyndon Southern Insurance Company (“Lyndon Southern”) with an

      automobile liability policy having a $15,000.00 policy limit. Mr. Dey was insured

      by First Chicago Insurance Company (“FCIC”) with a policy, which had

      $25,000.00 in UM coverage.

            At the time of the accident, Mr. Dey was 42 years old and he claimed as a

      result of the accident, he experienced pain in his neck, both shoulders, his lower

      back and both knees. Mr. Dey first sought medical treatment on July 23, 2018 at
SouthShore Physician Group, where he was seen by Dr. Barry L Bordonaro. A

physical examination of Mr. Dey revealed pain and tenderness in the cervical

spine, bilateral trapezius muscles, and in the lumbar spine with limited range of

motion and objective spasm. Dr. Bordonaro related, more probable than not, Mr.

Dey’s injuries and symptoms to the motor vehicle accident on July 19, 2018.

Therapy was ordered, medication was prescribed, and home exercises were

recommended.

      From July 25, 2018 through December of 2018, Mr. Dey received therapy at

SouthShore more than twenty times. Before the end of 2018, Mr. Dey also

returned to Dr. Bordonaro on at least eight more occasions with complaints of

persistent pain in his neck, both shoulders, his lower back and both knees. On

September 21, 2018, Dr. Bordonaro ordered an MRI of the lumbar spine. Dr.

Bordonaro’s November 7, 2018 examination of Mr. Dey revealed pain and

tenderness in the glenohumeral joint in the left shoulder with decreased range of

motion in addition to Mr. Dey’s prior complaints. Dr. Bordonaro prescribed

additional medication, ordered an MRI of Mr. Dey’s left shoulder, and referred Mr.

Dey to an orthopedist for his left shoulder and lumbar spine.

      On December 11, 2018, an MRI of the lumbar spine was performed and

revealed the following: focal disc desiccation at L5-S1 and straightening of the

lumbar curvature consistent with probable muscle spasm; a disc herniation at L5-

S1 measuring 5.1 mm and tenting of the posterior longitudinal ligament; and an




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annular tear of the L5-S1 disc, with an abnormal T2 signal likely representing

edema and hemorrhage of the disc.

      From December 29, 2018 through February 25, 2019, Mr. Dey returned to

India to help care for his son who had suffered an injury to his arm requiring

surgery. Upon his return from India, Mr. Dey returned to Dr. Bordonaro on

February 28, 2019 and March 25, 2019, with ongoing left shoulder and lower back

pain. On March 29, 2019, Dr. Bordonaro concluded that Mr. Dey had reached the

maximum medical benefit from the treatment at SouthShore.

      On the referral of Dr. Bordonaro, Mr. Dey followed up his treatment with

Dr. Marco A. Rodriguez, a board-certified orthopedic spine surgeon, on May 15,

2019. Dr. Rodriguez reviewed the lumbar MRI film and concluded that it revealed

a disc herniation at L5-S1 with an annular tear. His physical examination of Mr.

Dey revealed tenderness over the left trapezius and bilateral lumbar facet joints

worsened with loading the facets on extension and rotation, and pain in the left

shoulder with Impingement I and II with Jobe’s test. Dr. Rodriguez’s diagnoses

were neck pain, left shoulder pain, lumbosacral facet joint syndrome, and a disc

herniation at L5-S1 were directly caused by the motor vehicle accident on July 19,

2018. Dr. Rodriguez ordered an MRI of the left shoulder and active physical

therapy of the lumbar spine and left shoulder to be followed by lumbar facet

injections should the pain persist after therapy and referred Mr. Dey to an

orthopedic extremity specialist for his left shoulder.




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       From July of 2019 through October of 2019, Mr. Dey traveled to India due

to the death of his daughter. Upon his return from India, Mr. Dey returned to Dr.

Rodriguez on November 5, 2019 and December 31, 2019, with ongoing pain in his

neck, left shoulder, and back. The examination and recommendations were

unchanged, and Dr. Rodriguez concluded that lumbar injections would be

considered should physical therapy fail to relieve Mr. Dey’s pain.

       Mr. Dey continued to periodically treat for chronic pain in his neck, left

shoulder, and lower back with Dr. Rodriguez. There was an interruption in Mr.

Dey’s treatment from February 22, 2021 through May 20, 2021 because he

traveled to India to move his family to the United States. Mr. Dey also did not

have the recommended low back spinal injections because he allegedly feared

paralysis.

PROCEDURAL HISTORY

       On April 4, 2019, Mr. Dey settled all claims against Mr. Williams and

Lyndon Southern for Mr. Williams’s policy limit of $15,000.00. Mr. Dey issued a

McDill1 demand to FCIC for a tender of its UM policy limit in the amount of

$25,000.00 pursuant to La. R.S. 22:1892 and La. R.S. 22:1973 with supporting

documentation regarding the accident, Mr. Williams’s policy, the settlement, and

Mr. Dey’s medical treatment and bills (which totaled $9,399.00 at the time). Out

of an abundance of caution, Mr. Dey filed suit against Mr. Williams and Lyndon




1 McDill v. Utica,
475 So.2d 1085
 (La. 1985).



                                                5
Southern on July 15, 2019. Mr. Williams stipulated that he was at fault and as

stated above, Lyndon Southern tendered its policy limit of $15,000.00 to Mr. Dey.

      On September 13, 2019, Mr. Dey sent a second demand to FCIC to

unconditionally tender the UM policy limit of $25,000.00 to Mr. Dey. FCIC

tendered $10,715.00 to Mr. Dey on September 20, 2019. Mr. Dey filed an

amended petition for damages on May 19, 2020, adding FCIC as a defendant and

alleging that FCIC acted in bad faith by unconditionally tendering an “inadequate

amount” under its UM coverage. FCIC filed an answer denying that it had acted in

bad faith and alleging that Mr. Dey had failed to mitigate his damages.

      The matter proceeded to trial on February 14-15, 2022. Following a bench

trial, the trial court rendered a judgment on February 24, 2022, in favor of the

plaintiff, awarding the policy limit $25,000.00 plus $7,142.50 in penalties and

$7,142.50 in attorney’s fees “as a result of First Chicago Insurance Company’s

arbitrary and capricious failure to tender its uninsured/underinsured motorist limits

pursuant to Louisiana Revised Statute 22:1892 and Louisiana Revised Statute

22:1973.” It is from this judgment that FCIC appeals.

DISCUSSION

      On appeal, FCIC raises the following assignments of error: (1) the trial court

erred finding that the plaintiff’s damages were worth $40,000.00; (2) the trial court

erred in finding FCIC acted arbitrarily and capriciously under La. R.S. 22:1892 and

22:1973, awarding penalties and attorney’s fees; and (3) the trial court erred by not

reducing Plaintiff’s award commensurate with his failure to mitigate his damages.



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The plaintiffs have also answered the appeal and seek an award of additional fees

for the appeal.

      “In the assessment of damages in cases of offenses, quasi offenses, and quasi

contracts, much discretion must be left to the judge or jury.” La. C.C. art. 2324.1.

It is well settled that before a Court of Appeal can disturb a damage award made

by a fact finder, the record must clearly reveal that the trier of fact abused its

discretion in making its award. Scarberry v. Entergy Corp., 13-0214, p. 30 (La.

App. 4 Cir. 2/19/14),
136 So.3d 194, 213-14
.

      Louisiana law provides that a claimant’s disability is presumed to have

resulted from an accident, if before the accident the injured person was in good

health, but commencing with the accident, the symptoms of the disabling condition

appear and continually manifest themselves afterwards, providing that the medical

evidence shows there to be a reasonable possibility of a causal connection between

the accident and the disabling condition. See Housley v. Cerise,
579 So.2d 973, 980
 (La. 1991) (citing Lukas v. Insurance Company of North America,
342 So.2d 591
 (La. 1977)).

        In the instant case, the record indicates that prior to the July 19, 2018

accident, Mr. Dey appeared to be in good health and had no history of neck, left

shoulder, or back problems, nor had he ever had an MRI of his lumbar spine. Mr.

Dey sought treatment shortly after his accident, treated fairly regular basis for over

three years, and an MRI of the lumbar spine revealed a disc herniation at L5-S1

with an annular tear. Both of Mr. Dey’s treating physicians, Dr. Bordonaro and



                                            7
Dr. Rodriguez, related his injuries to the July 19, 2018 accident. Even the

defendant’s expert witness, Dr. Andrew Todd, could not say that Mr. Dey’s

injuries were not caused by the July 18, 2018 accident.

      As stated above, Mr. Dey’s McDill demand included quantum figures for

damage awards since the 1990s for injuries similar to his own. In Duplessis v.

Inman,
539 So.2d 880
 (La. App. 4th Cir. 1989), this Court found $50,000.00 in

general damages to be the lowest amount reasonably within the discretion of the

trier of fact that could be awarded to a plaintiff who sustained an aggravation of a

bulging lumbar disc with a degree of permanent disability. Similarly, in Durham

v. CNA Insurance Companies,
544 So.2d 679
 (La. App. 3d Cir. 1989), the Third

Circuit found that $50,000.00 in general damages was the lowest amount within a

jury’s discretion that could be awarded to a plaintiff who sustained an aggravation

of a lumbar disc disease. Likewise, the First Circuit found in Lee v. Alsobrooks,

98-0049 (La. App. 5 Cir. 5/27/98),
712 So.2d 1060
, that a general damage award

of $50,000.00 was the lowest amount within the discretion of a trier of fact that

could be awarded to a plaintiff who sustained a herniated disc at the C5-6 level

with surgery not indicated. A jury had originally awarded the plaintiff $15,000.00

for her injury. Id. at pp. 6-7,
712 So.2d at 1063
. Also, in Olivier v. Allstate Ins.

Co., 95-0306 (La. App 3 Cir. 10/4/95),
663 So.2d 207
, the Third Circuit raised a

jury award of $9,000.00 in general damages for a herniated cervical disk to

$50,000.00. As such, the trial court’s finding in the instant case that compensation

for a herniated disc is worth more than $40,000.00 is supported by an examination



                                           8
of general damage awards for similar injuries. Accordingly, we find no error

regarding FCIC’s first assignment of error.

      In order to recover penalties and attorney’s fees pursuant to the provisions of

La. R.S. 22:1892 for a UM claim, a plaintiff has the burden of establishing: that the

insurer received satisfactory proof of loss; that the insurer failed to pay the claim

within the applicable statutory period; and that the insurer’s failure to pay was

arbitrary and capricious or without probable cause. Boudreaux v. State Farm Mut.

Ins. Co., 04-1339, p. 4 (La. App. 4 Cir. 2/2/05),
896 So.2d 230, 233
. A claimant

provides satisfactory proof of loss for a UM claim when the insurer receives

sufficient facts to fully apprise it that: (1) the uninsured or underinsured status of

the owner or operator of the other vehicle involved in the accident; (2) the fault of

the owner or operator of the other vehicle; (3) the damages resulting from such

fault; and (4) the extent of those damages. McDill v. Utica,
475 So.2d 1085, 1090

(La. 1985) (citing Hart v. Allstate Ins. Co.,
437 So.2d 823
 (La. 1983)). “Once the

four criteria are met, the insurer cannot refuse to pay the claim on the basis that the

insured is unable to prove the exact extent of the general damages, which are by

their nature subjective.” Jones v. Johnson, 45,877, p. 10 (La. App. 2 Cir.

12/15/10),
56 So.3d 1016, 1022
.

      As stated above on July 8, 2019, a McDill demand for tender of the

$25,000.00 policy limits was sent to FCIC, which included Mr. Dey’s medical

records and medical bills totaling $9,399.00. Mr. Dey’s medical records showed

that Dr. Rodriguez directly related his neck pain, left shoulder pain, lumbar facet



                                           9
syndrome and herniation at L5-S1 with an annular tear to the July 19, 2018

accident. Mr. Dey’s demand also included quantum from Louisiana courts which

have found that a range of $50,000.00 to $85,000.00 was the lowest amount that

can be awarded for a disc herniation. After receiving this information, FCIC

waited two years until October 1, 2021 to hire Dr. Todd to obtain his opinion to try

and dispute causation. However, Dr. Todd issued a report relating Mr. Dey’s

lumbar injuries to the July 2018 crash.

      The facts show that FCIC was made aware of the nature, severity and

causation of Mr. Dey’s injuries on at least seven occasions including July 8, 2019,

September 13, 2019, January 3, 2020, April 22, 2020, February 9, 2021, September

14, 2021, and January 17, 2022, but FCIC continuously refused to tender its UM

policy limits. Accordingly, we find no error in the trial court’s finding that FCIC

acted arbitrarily and capriciously in refusing to tender it’s UM policy limits to Mr.

Dey. Therefore, we find no error in the trial court’s award of penalties and

attorney’s fees.

        Regarding FCIC’s third assignment of error regarding mitigation of

damages, we find no merit. As illustrated by the quantum for prior awards

concerning similar injuries to those suffered by Mr. Dey, we agree with the trial

court that the herniated disc itself would be worth more than Mr. Williams’s

$15,000.00 policy limit plus the $25,000.00 UM policy limit.




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CONCLUSION

      For the above and foregoing reasons, we affirm the judgment of the court

below. We also decline to award the plaintiff additional attorney’s fees for the

appeal.




                                      AFFIRMED




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