CARTER, C.J.
State Farm Mutual Automobile Insurance Company ("State Farm") appeals an adverse judgment following a trial on the merits wherein the trial judge awarded damages to the plaintiffs, Shirley Bingham, individually, and on behalf of her minor child, Shirley Addison, and Dajia Rogers ("plaintiffs"),
This suit arises from a motor vehicle accident that occurred on October 26, 2008. Plaintiffs claim they were passengers in a 1998 Chevrolet Silverado "four-door truck that was rear-ended by a vehicle driven by Travis Banks while on Iroquois Street in Baton Rouge, Louisiana. Bernard Bingham, the driver of the Chevrolet Silverado, is not a party to this suit. Although Shirley Bingham and Shirley Addison traveled to the emergency room immediately following the accident, both of them left before being seen by a physician, instead proceeding to the Angola Rodeo. The following day, Shirley Bingham, who was five months pregnant, was seen at Earl K. Long Hospital and complained of neck and back pain from a motor vehicle accident the previous day, as well as complications from her pregnancy. Shirley Addison, who was twelve years old at the time of the accident, was seen at the Baton Rouge General Medical Center two days after the accident and complained of a headache, which began two hours previously, as well as neck, back, and leg pain. Shirley Bingham and Shirley Addison both sought additional treatment. Dajia Rogers submitted no medical evidence at trial, but she testified at trial that she went to Tuoro Infirmary in New Orleans the day after the accident and complained of headaches and body aches. Ms. Rogers also testified to two other emergency room visits shortly after the accident at two other hospitals. Her symptoms resolved within two to three months.
Following a bench trial, the trial court rendered judgment in favor of plaintiffs. State Farm filed this appeal, asserting that the trial court erred: in finding State Farm was in bad faith and awarding penalties and attorney's fees; in failing to credit State Farm for medical payments paid prior to trial; and in awarding the amounts of special and general damages.
Louisiana Revised Statutes Annotated Section 22:1892A(1) (formerly Louisiana Revised Statutes 22:658) requires all insurers to pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss. Section B(1) of this statute provides, in pertinent part:
Louisiana Revised Statutes Annotated Section 22:1973 (formerly Louisiana Revised Statutes 22:1220) imposes an obligation of good faith and fair dealing on an insurer, including the affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured. An insurer may be subject to penalties not to exceed two times the damages sustained or five thousand dollars, whichever is greater, if the insurer fails to pay claims within sixty days of receiving satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause. See La. Rev. Stat. Ann. §22:1973 B(5) and C.
Because these two statutes are penal in nature, they are strictly construed. See Reed v. State Farm Mutual Automobile Ins. Co., 03-1007 (La. 10/21/03), 857 So.2d 1012, 1020.
An insurer is required to pay any undisputed amount over which reasonable minds could not differ, and the insurer's failure to do so will subject the insurer to penalties. See McDill v. Utica Mutual Insurance Company, 475 So.2d 1085, 1092 (La. 1985); see also Louisiana Bag Company, Inc. v. Audubon Indemnity Company, 08-0453 (La. 12/2/08), 999 So.2d 1104, 1116;. However, when there are substantial, reasonable, and legitimate questions as to the extent of an insured's liability or an insured's loss, the failure to pay within the statutory time is not arbitrary, capricious, or without probable cause. Louisiana Bag Company, 999 So. 2d at 1114. The phrase "arbitrary, capricious or without probable cause," as used in Louisiana Revised Statutes 22:1892 and 22:1973, "is synonymous with `vexatious,' and a `vexatious refusal to pay' means unjustified, without reasonable or probable cause or excuse." Louisiana Bag Company, 999 So. 2d at 1114. Both phrases describe an insurer whose willful refusal to pay a claim is not based on a good-faith defense. Guillory v. Lee, 09-0075 (La. 6/26/09), 16 So.3d 1104, 1127. Whether a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action. Id. Statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and was acting in good-faith reliance on that defense. Block v. St. Paul Fire & Marine Ins. Co., 32,306 (La. App. 2 Cir. 9/22/99), 742 So.2d 746, 752. This is especially true where there is a reasonable and legitimate question as to the extent and causation of a claim; bad faith should not be inferred from an insurer's failure to pay within the statutory time limits when such reasonable doubts exist. Id. The question of arbitrary and capricious behavior is a factual issue, and the trial court's finding should not be disturbed in the absence of manifest error. Reed, 857 So. 2d at 1021.
State Farm claims that the trial court erred in assessing penalties and attorney's fees because there were issues as to the extent and causation of the claims. It is undisputed that State Farm did not make a tender to any of the passengers in the vehicle because there was some confusion as to who occupied the vehicle at the time of the accident. The police report lists seven occupants, including the driver, of the 1998 Chevrolet Silverado four-door truck that was rear-ended. Five of the occupants were adults and two were children ages twelve and three.
The police report does indicate that there was some question about the number of passengers in the Chevrolet Silverado and refers to the statements of Travis Banks, the driver who rear-ended the Chevrolet Silverado, and Christopher Edwards, an independent witness to the accident. Travis Banks indicated that only three people were in the Chevrolet Silverado. Christopher Edwards told the police officer that he believed no more than three people were in the Chevrolet Silverado at the time of the accident even though other people said there were more individuals involved. Based upon the information in the police report, State Farm did not tender any payments to the plaintiffs after receiving letters from counsel for four plaintiffs, each dated September 29, 2009, detailing each plaintiff's damages.
Travis Banks testified that after he hit the Chevrolet Silverado in front of him, another vehicle pulled up to the Chevrolet Silverado, and people from the second vehicle told the police officer they were in the truck that was rear-ended and involved in the accident. Mr. Banks further testified that he saw another vehicle drive up to the scene, people exit that vehicle, and go to the Chevrolet Silverado. Travis Banks discussed with the police officer that other people were going to the Chevrolet Silverado saying they were in the wreck when they were not. He only saw, at most, three people in the Chevrolet Silverado. The plaintiffs' attorney pointed out that Mr. Banks stayed near the rear of the truck, that the windows on the truck were tinted, and that there were many people around the accident scene. The deposition of Christopher Edwards was also taken wherein he indicated that the truck had one to three people in it at the time of the accident but that many people at the scene tried to say they were in the Chevrolet Silverado but were not.
It is well-settled that a plaintiff seeking penalties and attorney's fees must prove the insurer knowingly committed actions that were completely unjustified, without reasonable or probable cause or excuse. Lastrapes v. Progressive Security Insurance Company, 10-0051 (La. 11/30/10), 51 So.3d 659, 663. An insurer must have a reasonable and legitimate question as to the extent or causation of a claim in order to avoid statutory penalties for the failure to pay a claim. See Block, 742 So. 2d at 752. When a serious defense is present in good faith, assessment of attorney's fees and statutory penalties against an insurer is inappropriate. See Kikendall v. American Progressive Ins. Co., 457 So.2d 53, 59 (La. App. 1st Cir. 1984). If the insurer has a good faith, reasonable explanation for its failure to timely pay on a claim, then the penalty provisions should not apply. McDonald v. American Family Life Assurance Company of Columbus, 10-1873 (La. App. 1 Cir. 7/27/11), 70 So.3d 1086, 1093. When a reasonable disagreement exists between an insurer and an insured, the insurer is not arbitrary and capricious or without probable cause to deny payment on the claim that is in dispute. Id.
State Farm was presented with an automobile accident in which the police report and two witness statements indicated there was an issue with the number of people in the truck that was rear-ended. Travis Banks and Christopher Edwards were later deposed and testified that all the people who claimed they were in the truck were not actually in it at the time of the accident. There was also conflicting deposition and trial testimony as to where the occupants were seated at the time of the accident. Furthermore, even at the trial, there were numerous versions as to where everyone sat in the truck. Bernard Bingham, the driver of the truck, even admitted that no one was seated next to him in the center, front seat. Therefore, seven people were sitting in five seats. Both Shirley Bingham and Shirley Addison, the twelve year old, testified that Shirley Addison was in a seat in the middle back seat, not in someone's lap. Additionally, the deposition testimony clearly showed inconsistencies in the color of the Chevrolet Silverado the plaintiffs allegedly occupied. Shirley Bingham testified that the truck was brown, and Dajia Rogers testified that it was tan. The truck was actually blue, as evidenced by the exhibits. State Farm also relied upon the medical evidence presented, which indicated that some of the treatment for Shirley Bingham and Shirley Addison was unrelated to the accident. Shirley Bingham was pregnant at the time of the accident, and some of her treatment related to her pregnancy did not mention any pain due to an accident. Additionally, two plaintiffs did not even appear for trial, even though they had previously submitted demand letters to State Farm, and their cases were dismissed. State Farm certainly had a reasonable and legitimate defense as to the claims of the plaintiffs.
Besides State Farm's defense as to causation of the injuries alleged, it also presented a defense as to the extent of the damages. Many of the medical records submitted by State Farm for Shirley Bingham and Shirley Addison did not mention the vehicle accident or indicated the treatment was not related to an accident. Even if at trial it were shown that some of the treatment was indeed related to the accident, State Farm had a defense as to the extent of causation at the time the proof of loss was presented. State Farm also possessed the information that Shirley Bingham and Shirley Addison went to the emergency room immediately following the accident but left prior to being seen on the date of the accident, instead proceeding along with Dajia Rogers to the Angola Rodeo where all of the plaintiffs walked around the rest of the day and Shirley Bingham danced.
Further, where there is greatly conflicting medical evidence as to the injuries, the insurer's actions or inactions cannot be arbitrary or capricious. See Thomas v. Hanover Ins. Co., 477 So.2d 1171, 1174 (La. App. 1st Cir. 1985), aff'd, 488 So.2d 181 (La. 1986). State Farm had conflicting medical evidence, as the record shows that both Shirley Bingham and Shirley Addison had other hospital and doctor visits without mentioning the vehicle accident of October 26, 2008. State Farm also presented medical evidence that the injuries of Shirley Bingham and Shirley Addison were much less severe than plaintiffs' claimed and were soft-tissue injuries. The trial court committed manifest error in finding that State Farm acted arbitrarily and capriciously in failing to provide a tender to the plaintiffs. Therefore, the penalties and attorneys fees for Shirley Bingham and Shirley Addison were incorrectly awarded by the trial court and are reversed.
Furthermore, as to Dajia Rogers, there is no demand letter forwarding her medicals from this accident. The only medical records introduced into evidence, which were submitted by State Farm and obtained by subpoena, appear to be from Ochsner Medical Center and are the childhood medical records of Ms. Rogers. There is no record of a visit to Ochsner within a few days of the accident even though Ms. Rogers testified to being seen there. There does not appear to be any treatment record. Therefore, as there is no demand letter and no medicals in the record, there is no evidence of a satisfactory proof of loss being sent to State Farm on Dajia Rogers. The trial court was manifestly erroneous in awarding Dajia Rogers penalties and attorney's fees and these awards are reversed.
It is well-settled that a judge or jury is given great discretion in its assessment of quantum, of both general and special damages. Guillory, 16 So. 3d at 1116. Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact that is entitled to great deference on review. Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70, 74. Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).
Plaintiff must prove, by a preponderance of the evidence, the existence of the injuries and a causal connection between the injuries and the accident. See Yohn v. Brandon, 01-1896 (La. App. 1 Cir. 9/27/02), 835 So.2d 580, 584, writ denied, 02-2592 (La. 12/13/02), 831 So.2d 989. The test to determine if that burden has been met is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the accident. Yohn, 835 So. 2d at 584. Generally, the effect and weight to be given medical expert testimony is within the broad discretion of the factfinder. Yohn, 835 So. 2d at 584. The law is well settled that where the testimony of expert witnesses differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding in this regard will not be overturned unless it is clearly wrong. Cotton v. State Farm Mutual Automobile Insurance Company, 10-1609 (La. App. 1 Cir. 5/6/11), 65 So.3d 213, 220, writ denied, 11-1084 (La. 9/2/11), 68 So.3d 522.
On review of the record, we conclude that the trial court's award of special damages for past medical expenses is supported by the record and is not manifestly erroneous. However, State Farm is correct that the trial court failed to give it a credit for the medicals it paid to both Shirley Bingham and Shirley Addison, each in the amount of $5,000.00. The $5,000 paid to both Shirley Bingham and Shirley Addison was paid under the medical payments coverage and the UM policy coverage provides under "Nonduplication" that the insurer will not pay under UM coverage any damages that have already been paid as expenses under the Medical Payments Coverage of the policy. Therefore, we reduce each of the special damage awards to Shirley Bingham and Shirley Addison by $5,000.00.
The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Wainwright, 774 So. 2d at 74; Youn, 623 So. 2d at 1261. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the "much discretion" of the trier of fact. Youn, 623 So. 2d at 1260. Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn, 623 So. 2d at 1261. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. See Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La. 1976).
Shirley Bingham was pregnant at the time of the accident. She went to the emergency room on the day of the accident, but left without being seen although she proceeded to the Angola Rodeo where she walked around and danced for the rest of the day. She did visit the emergency room the day after this accident and complained about neck and back pain and problems from her pregnancy. She then saw a chiropractor nine times between October 27, 2008 and November 6, 2008, and three more times from February 13, 2009 to March 10, 2009, who described her neck and back pain as "whiplash type injuries" and "soft tissue" injuries. She saw an orthopedist in March 2009 on two occasions and complained of neck, back, and knee pain (which had been injured in a previous accident and to which she never mentioned in medical records until March 2009). Between March 20, 2009 and April 13, 2009, Shirley Bingham saw a pain doctor four times for her neck, back and knee pain. She had two CT scans of her neck four days apart and one of her back and X-rays of both knees in March 2009. Both CT scans of her neck showed a normal cervical spine. The lumbar CT scan showed degenerative disc disease at L4-5 and L5-S1 normal. On April 10, 2009, she received an injection in her lumbar spine. Shirley Bingham's last medicals related to the accident were on April 13, 2009, her post-operative visit after the injection. A review of the entire record reveals that Shirley Bingham suffered an injury for which she sought treatment for six months. Ms. Bingham had residual symptoms between a year and a year-and-a-half after the accident. There is no evidence in the record that Ms. Bingham's injuries precluded her from or inhibited her normal daily activities. There was evidence that Ms. Bingham did go to the Angola Rodeo on the day of the accident, walked around the rest of the day, and danced at the rodeo. There was also evidence that Ms. Bingham went to a wedding between the accident date and the day of trial where she also danced.
Shirley Addison was twelve years old on the date of the accident. She went to the emergency room two days after the accident where she was treated for a headache. She saw a chiropractor from October 27, 2008, to November 14, 2008, for eight visits and then two more visits on February 13, 2009, and February 16, 2009. She also saw an orthopedist for one visit that diagnosed her with cervical strain and suggested physical therapy. She saw a physical therapist three times for one week, April 8, 2009 to April 15, 2009. Shirley Addison also underwent an MRI of her neck and back. A review of the entire record reveals that Shirley Addison suffered a soft-tissue injury and sought treatment for six months. She agreed that between six and eight months after the accident, she was back to "a hundred per cent normal." There is no evidence that any of her daily activities were inhibited by the accident.
Dajia Rogers submitted no medical records at trial. However, she testified that she was seen at Touro Infirmary the day following the accident and complained of a headache and body aches. She also testified to being seen at Ochsner Medical Center and University Hospital for injuries related to the accident. According to Ms. Rogers, her symptoms resolved in two to three months.
We find no manifest error in the trial court's determination that these plaintiffs are entitled to general damages. Nonetheless, based on our review of the record, we find the trial court abused its discretion in assessing general damages, which we find are excessive. Based on the record presented, we find that an award of $25,000 is the highest reasonable amount for the injuries of Shirley Bingham; that an award of $10,000 is the highest reasonable amount for the injuries of Shirley Addison; and that an award of $500 is the highest reasonable amount for the injuries of Dajia Rogers.
For the foregoing reasons, the judgment of the trial court is reversed as to penalties and attorney's fees. The judgment is amended as to special damages to reduce the award to Shirley Bingham to $13,051.95 and to Shirley Addison to $3,464.13, taking into account the $5,000 medical payment made to each of these plaintiffs; and the judgment is further amended to reduce the general damages from $50,000 to $25,000 to Shirley Bingham; from $20,000 to $10,000 to Shirley Addison; and from $3,500 to $500 to Dajia Rogers. Costs of the appeal are assessed equally to appellees, Shirley Bingham, Shirley Addison, and Dajia Rogers.
