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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #029 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinion handed down on the 18th day of April, 2008, is as follows: BY WEIMER, J.: 2007-C- 1335 C/W 2007-C -1399 EUGENE BELLARD v. AMERICAN CENTRAL INS. CO., ET AL. (Parish of Calcasieu) We remand this case to the district court to confect an appropriate monetary judgment consistent with the views expressed herein. REVERSED IN PART; AMENDED IN PART AND AS AMENDED AFFIRMED; REMANDED. CALOGERO, C.J., concurs and assigns reasons. VICTORY, J., concurs in part, dissents in part and assigns reasons. TRAYLOR, J., concurs in part, dissents in part and assigns reasons. KNOLL, J., concurs in result in part and dissents in part with reasons.

4/18/08 SUPREME COURT OF LOUISIANA
No. 07-C-1335 c/w 07-C-1399 EUGENE BELLARD VERSUS AMERICAN CENTRAL INS. CO., ET AL.
On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Calcasieu

WEIMER, Justice We granted certiorari in this case primarily to resolve a conflict in the courts of appeal with respect to whether an uninsured motorist carrier is entitled to a credit for medical and disability wage benefits paid on behalf of or to an injured worker by a workers' compensation carrier. The court of appeal reversed the district court's grant of summary judgment which provided the uninsured motorist carrier with a credit for the workers' compensation medical benefits that had been paid by the plaintiff's employer on his behalf. The court of appeal held that the uninsured motorist carrier is not entitled to a credit for medical or disability wage benefits paid by the workers' compensation insurer because these insurers are not solidary obligors and because the collateral source doctrine applies to prohibit the uninsured motorist carrier from receiving a credit for these payments. We disagree. Another reason we granted certiorari in this case was to address plaintiff's contention that the district court erred in its assessment of causation and in its award of damages. After reviewing the record and the arguments of the parties, we find, as

did the court of appeal, that the district court's conclusions as to causation are not manifestly erroneous. However, accepting the district court's factual conclusions as to causation and the extent of plaintiff's injuries, we find that the court abused its vast discretion in assessing the amount of general damages and we increase the award of general damages to $200,000.00. Accordingly, the judgment of the court of appeal is affirmed in part and reversed in part. FACTS AND PROCEDURAL HISTORY On August 26, 2002, Eugene Bellard, a delivery driver for Builders Sav-Mor, Inc. ("Sav-Mor"), a building materials retailer, was driving a company pickup truck when he was rear-ended by an automobile driven by Katie Gayle. Bellard had just completed a delivery and was returning to his place of employment. He was traveling southbound on La. Hwy. 27 in Sulphur, Louisiana, with the intention of making a left turn onto the entrance ramp of Interstate 10 East. The weather was wet and rainy. When he entered the designated left turn lane, oncoming traffic forced Bellard to bring his truck to a stop. As traffic cleared and Bellard released the clutch in anticipation of moving forward, Gayle's vehicle hydroplaned into the rear of the truck. Gayle estimated she was traveling between twenty and twenty-five miles per hour at the time of impact. Gayle's vehicle struck the tailgate of the truck, which was equipped with a "Tommy Gate," a heavy duty steel hydraulic lift gate used for loading and unloading cargo. The lift gate came to rest on the hood of Gayle's car, causing the front and passenger side windows to shatter and the air bag to deploy. Gayle's car was towed from the scene and was ultimately declared a total loss. Sav-Mor's truck, on the other hand, sustained almost imperceptible damage; the truck and its lift gate remained in use by Sav-Mor without the necessity of any repairs.
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Gayle suffered minor injuries in the accident, consisting mostly of bruising and burns from the deployed air bag and her seat belt. Bellard refused medical treatment at the scene, and again later, when he returned to work and reported the accident to his employer. He continued to work that day and for approximately eight days thereafter. On September 3, 2002, Bellard presented at the W.O. Moss Regional Medical Center Emergency Room with complaints of generalized pain. He was examined, medication was prescribed, and he was released. On September 25, 2002, Bellard consulted Dr. Robert Dale Bernauer, an orthopedic surgeon, complaining of neck pain and pain in the left shoulder that extended down the arm and into the elbow. He reported tingling in both hands and lower back pain radiating down his thigh. Dr. Bernauer recommended a course of physical therapy and prescribed muscle relaxers and pain medication. Suspecting a herniated lumbar disc, bilateral carpal tunnel syndrome, and a cervical injury, Dr. Bernauer ordered an MRI of the cervical and lumbar spine and an EMG of both hands. Before those diagnostic tests could be completed, however, Bellard was involved in another automobile accident. On November 24, 2002, Bellard drove his car into a telephone pole in a selfdescribed suicide attempt. Although Bellard described the impact as "very hard" and stated his vehicle was a total loss, he denied suffering any physical injuries in the incident. He did, however, seek treatment for depression and was subsequently admitted to Lake Charles Memorial Hospital for psychiatric treatment for a period of one week. Bellard explained that he was feeling overwhelmed by debt,

unemployment and chronic pain, which he attributed to the accident with Gayle. Dr. Bernauer's notes reflect that after this second accident, Bellard reported experiencing

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an increase in pain, but no new injuries. He continued with a course of conservative treatment. In late November or early December 2003, Bellard was involved in a third accident. This automobile accident occurred when Bellard, traveling at a speed of approximately thirty-five miles per hour, ran a stop sign and broad-sided another vehicle. The Ford Ranger he was driving sustained extensive front end damage, rendering it a total loss. Nevertheless, Bellard maintained that he was not injured in the accident, and he continued with the course of treatment prescribed by Dr. Bernauer. Experiencing no appreciable improvement in his condition, Bellard underwent the first in a series of four surgeries in March 2004; he had lumbar spine surgery, which consisted of a facetectomy, diskectomy and fusion at L5-S1. In February and April of 2005, two more surgeries were performed to correct bilateral carpal tunnel syndrome. The lumbar surgery and the carpal tunnel release surgeries proved to be successful. Finally, in September 2005, Bellard underwent cervical spine surgery, which consisted of a three-level diskectomy and fusion at C3-C4, C4-C5, and C5-C6. At the time of trial, Bellard was still recovering from the cervical spine surgery. He had not worked since September 2002, shortly following the first accident. On December 10, 2002, Bellard filed suit against Gayle and her liability insurer, American Central Insurance Company, seeking damages for the injuries he sustained in the August 2002 rear end collision. By supplemental and amending petition, Trinity Universal Insurance Company of Kansas, Inc. ("Trinity") was added as a defendant based on a policy of uninsured motorist insurance issued to Bellard's employer, Sav-Mor. Sav-Mor, in turn, intervened in the lawsuit seeking recovery of

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workers' compensation disability benefits paid to and medical benefits paid on behalf of Bellard. Bellard ultimately settled with the tortfeasor, Gayle, and her liability insurer, American Central Insurance Company, for the policy limits of $50,000, and voluntarily dismissed those defendants from his lawsuit. Thus, Trinity, Sav-Mor's uninsured motorist carrier, was left as the lone defendant. Bellard then filed a motion for summary judgment seeking to dismiss Sav-Mor's intervention against Trinity on grounds that the policy of uninsured motorist insurance issued by Trinity excludes coverage for the "direct or indirect benefit of any insurer or self-insurer under any workers' compensation, disability benefits or similar law." Based on this court's decision in Travelers Insurance Company v. Joseph, 95-0200 (La. 6/30/95), 656 So.2d 1000, which upheld an identical exclusion in a policy of uninsured motorist insurance, the summary judgment was granted and the intervention of Sav-Mor dismissed with prejudice. Following the dismissal of Sav-Mor's intervention, Trinity filed a motion for summary judgment seeking a declaration that it is entitled to a credit for all payments made to Bellard as workers' compensation benefits. After taking the motion under advisement, the district court granted Trinity's motion and issued detailed written reasons in support of its ruling. Adopting the rationale of the Court of Appeal, Fourth Circuit in Molony v. United Services Automobile Association, 96-1747 (La.App. 4 Cir. 11/6/96), 683 So.2d 891, writ denied, 96-2915 (La. 2/21/97), 688 So.2d 516, the district court concluded that Trinity is entitled to a credit for medical expenses paid as workers' compensation benefits because the workers' compensation carrier and the uninsured motorist carrier are solidarily liable for medical expenses, and payment by one solidary obligor relieves the other of liability toward the obligee to
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the extent of the payment. In reaching its conclusion, the district court expressly rejected Bellard's contention that the collateral source doctrine applies in this situation to prohibit the credit. In so doing, the court noted that a major policy consideration prompting the collateral source doctrine is the concern that a tortfeasor not benefit from the fact that the injured victim has had the foresight to obtain insurance and other benefits. The court pointed out that such a concern is not a factor in this case, as the tortfeasor has been released and will not in any manner "benefit" from the credit to the employer's uninsured motorist carrier. The district court further reasoned that application of the doctrine under these facts would result in a windfall or double recovery for the plaintiff who has suffered no reduction of his patrimony from the procurement of worker's compensation insurance. As a result, the district court concluded that the collateral source doctrine should not be applied in this instance to allow Bellard to be compensated twice for medical expenses, and that Trinity is entitled to a credit for medical expenses paid by the workers' compensation insurer. The judgment, however, was silent as to whether a credit would also be granted for workers' compensation disability wage benefits that had previously been paid to Bellard. The actual trial of this matter commenced on February 22, 2006, before the district court. Following the conclusion of testimony, the matter was taken under advisement. On April 19, 2006, the district court issued an oral ruling with respect to liability and damages. Acknowledging that the causation issue was a difficult one in light of Bellard's subsequent accidents, the district court nevertheless determined that Bellard sustained injuries as a result of the negligence of Gayle, but that those injuries were not totally and permanently disabling. The district court awarded Bellard $62,422.00 for his pre-trial loss of earning capacity and $29,822.00 for his loss of
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future earning capacity. The loss of future earning capacity award is based on the district court's determination that Bellard could be retrained and return to the work force twenty months post-trial. The district court additionally awarded Bellard $50,000.00 in general damages, explaining that this figure took into consideration Bellard's $50,000.00 out-of-court settlement with Gayle and her insurer. Finally, the court awarded Bellard $334,040.60 in medical expenses, but then awarded a corresponding credit for those medical expenses to Trinity. No corresponding credit was awarded to Trinity for disability wage benefits paid by the workers' compensation insurer. A formal judgment awarding Bellard damages totaling $142,244.00 was signed by the district court on April 24, 2006. Both Trinity and Bellard appealed that judgment. On May 30, 2007, a five judge panel of the court of appeal reversed the judgment of the district court in part, affirmed in part, and rendered. Bellard v. American Central Ins. Co., 06-958 (La.App. 3 Cir. 5/30/07), 958 So.2d 107. The court of appeal examined the issue of Trinity's entitlement to a credit for workers' compensation benefits paid to or on behalf of Bellard; determined Trinity was not entitled to a credit for the medical expenses paid by the workers' compensation carrier; and reversed the summary judgment granted by the district court. In so doing, the court relied on its earlier decision in Leger v. Sonnier Exterminating Company, 05-1291 (La.App. 3 Cir. 4/5/06), 926 So.2d 158, writ denied, 06-1033 (La. 6/23/06), 930 So.2d 982. The court held that an employer's workers' compensation insurer and uninsured motorist carrier are not solidarily liable for medical expenses or lost wages. Thus, payment by one does not exonerate the other for the same amount as paid to the creditor. However, because the employer's uninsured motorist carrier is a solidary obligor with the dismissed tortfeasor, the court of appeal held that the collateral source
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doctrine applies. Therefore, the plaintiff's tort recovery may not be reduced by the amount of monies received by the plaintiff from sources independent of the tortfeasor's procuration. The court of appeal reversed the district court's finding that application of the collateral source doctrine in this instance would result in an illegal double recovery for Bellard. The court of appeal reasoned that Bellard has, in fact, given consideration for the workers' compensation benefits received by waiving the right to sue his employer for damages when injured on the job; thus, his patrimony has been diminished to this extent, which diminution constitutes additional damage suffered by him. Accordingly, the court of appeal held that Trinity must pay medical expenses in the amount of $334,040.60, without the benefit of a credit for workers' compensation benefits already paid on Bellard's behalf. Applying the same reasoning, the court also held that Trinity is not entitled to a credit for the wage indemnity benefits paid to date to Bellard. Finally, the court of appeal turned to the issues of causation and damages. Finding that the district court did not commit manifest error in its conclusions on the issues of causation and damages, the court affirmed the district court's awards for general damages and loss of future earning capacity. Both Bellard and Trinity applied to this court for writs of certiorari. Bellard argued that the awards for general damages and loss of future earning capacity should be increased. Citing Molony v. United Services Automobile Association, supra, and Boyd v. Moran, 03-0361 (La.App. 4 Cir. 9/17/03), 857 So.2d 1060, writ denied, 03-2856 (La. 1/16/04), 864 So.2d 631, Trinity argued that there is now a direct conflict in the courts of appeal with respect to whether an uninsured motorist carrier is entitled to a credit for medical and disability wage benefits paid on behalf of or to
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an injured worker by a workers' compensation carrier. We granted certiorari primarily to resolve the apparent conflict in the courts of appeal, but also to address Bellard's concerns with respect to the amount of the damage award. Bellard v. American Central Ins. Co., 07-1335, 07-1399 (La. 10/12/07), 966 So.2d 536. LAW AND DISCUSSION Uninsured Motorist Carrier's Entitlement to Credit for Workers' Compensation Benefits Paid The first issue--whether an uninsured motorist carrier is entitled to a credit for medical and disability wage benefits paid on behalf of or to an injured worker by the workers' compensation insurer--has received conflicting treatment in the courts of appeal. In the instant case, the court of appeal's holding that the uninsured motorist carrier is not entitled to a credit for either medical expenses or disability wage benefits paid by the workers' compensation insurer is in direct conflict with an earlier decision by the Court of Appeal, Fourth Circuit. In Boyd v. Moran, supra, which drew upon the rationale of Molony v. United Services Automobile Association, supra, the fourth circuit granted an uninsured motorist carrier a credit for medical and indemnity benefits paid by the plaintiff's employer and/or its workers' compensation insurer. In Molony, the court reasoned that the uninsured motorist carrier and the workers' compensation carrier are solidarily liable for the plaintiff's medical expenses such that payment by one exonerates the other, and that the collateral source doctrine does not apply in such a situation to override the principles of solidarity expressly set forth in the civil code. We granted certiorari to resolve the apparent conflict and to clarify the law in this area.

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Because the ruling in the instant case arose in the context of a motion for summary judgment, our review is de novo, applying the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La. 1991). In addition, de novo review is warranted because the issue presented is a question of law. Cleco Evangeline, LLC v. Louisiana Tax Commission, 012162, p. 3 (La. 4/3/02), 813 So.2d 351, 353. As evidenced by the conflicting decisions referenced above, the analytical framework for resolving the issue of whether an uninsured motorist carrier is entitled to a credit for workers' compensation benefits paid to an injured worker hinges on two inquiries: (1) whether the insurers are solidary obligors; and (2) whether the collateral source doctrine applies. If the uninsured motorist carrier and the workers'

compensation insurer are solidary obligors, then, pursuant to the provisions of LSAC.C. art. 1794, "performance rendered by one of the solidary obligors relieves the others of liability toward the obligee," and the uninsured motorist carrier is entitled to a credit for amounts paid by the workers' compensation carrier. If the collateral source doctrine applies, payments received from a source independent of the tortfeasor's procuration or contribution are not deducted from the award the injured plaintiff receives from the tortfeasor and the plaintiff is entitled to recover the same damages from both the employer's uninsured motorist carrier and the workers' compensation insurer. Bozeman v. State, 03-1016, p. 9 (La. 7/2/04), 879 So.2d 692, 698. Solidarity of Uninsured Motorist Carrier and Employer and/or Workers' Compensation Insurer Louisiana Civil Code article 1794 defines a solidary obligation as follows:

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An obligation is solidary for the obligors when each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee. Drawing upon this definition, this court has held that a solidary obligation exists when the obligors (1) are obliged to the same thing, (2) so that each may be compelled for the whole, and (3) when payment by one exonerates the other from liability toward the creditor. Hoefly v. Government Employees Insurance Company, 418 So.2d 575, 576 (La. 1982).1 In Hoefly, we examined each of these prerequisites to find solidary liability between an uninsured motorist carrier and a tortfeasor. In Narcise v. Illinois Central Gulf Railroad Co., 427 So.2d 1192 (La. 1983), we conducted a similar analysis to find solidary liability between a railroad company liable to its employee under the Federal Employer's Liability Act ("FELA"), 45 U.S.C.

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