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Louisiana Supreme Court Revisits How General Damage Awards Are Reviewed on Appeal

Published on: February 19, 2025

In Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, the Louisiana Supreme Court re-examined how Louisiana courts should review general damage awards. The Court noted its decision also was intended to clarify its prior ruling in in Pete v. Boland Marine & Mfg. Co., which addressed the same issue. To review our prior analysis of the Court’s holding in Pete, click here.

Traditionally, Louisiana has required a two-step analysis for appellate review of a lower court’s damage awards. First, the appellate court must determine whether the trier of fact “abused its discretion” in assessing damages. Courts generally found a damage award abused discretion if it “shocked the conscience,” a standard critics argued was too subjective. Second, and only if the award “shocked the conscience,” courts could consider prior awards to establish the highest or lowest reasonable award.

In Pete, the Court held that courts of appeal should compare verdicts to general damage awards in similar cases during the first step of analysis to determine whether a trial court abused its discretion. This approach suggested general damage awards should not be solely based on the subjective findings of the jury but should be grounded in objective comparisons to other cases. It was thought this also served the purpose of maintaining consistency and reasonableness of damage awards. The Pete decision was seen by many as an attempt to address Louisiana's trend of rising verdicts, which critics argued were contributing to higher insurance premiums in the state.

However, in Barber Bros., the Supreme Court revisited these issues, when it examined a jury verdict that awarded the plaintiff $10.75 million in general damages, $2.5 million to his wife for loss of consortium, and $1.5 million to each of their two children. The jury found the plaintiff sustained extensive physical injuries and a traumatic brain injury, which significantly impacted his personality, lifestyle, and self-image.

Citing Pete, the Louisiana Supreme Court initially reduced the awards to $5 million for the plaintiff, $400,000 for his wife, and $100,000 for each child. However, upon rehearing, the Court reinstated the original general damages award. Citing Pete again, the court clarified how damage awards should be reviewed on appeal as follows: (1) courts should determine whether abuse of discretion occurred by examining the particular facts and circumstances of the case, to include a “consideration of prior awards in similar cases,” and (2) if abuse of discretion is found, “the court is to then also consider those prior awards to determine ‘the highest or lowest point which is reasonably within that discretion.’”

The Court clarified that the consideration of prior awards should be balanced with an examination of the unique facts and circumstances of each case. Considering the facts of Barber Bros., the Court held it did not adequately account for the effects of the plaintiff’s injuries upon initial hearing. While the jury award was “on the high end of the range of reasonable awards,” the court found it was not disproportionate to prior awards and “bore a reasonable relationship” to the evidence presented at trial. Thus, the award did not “shock the conscience” and should not have been adjusted following the initial hearing.

The Barber Bros. decision may be limited to the facts presented in that case. However, the ruling appears to suggest that prior verdicts are only a factor to be weighed against a case’s facts to assess whether a trial court abused its discretion with a general damage award that “shocks the conscience.” While the court did not overturn Pete, the Barber Bros. case appears to re-open the door for damage awards to be based upon more subjective assessments of the jury and not the more objective standards the Pete decision initially appeared to create. It remains to be seen how much weight prior decisions will carry when courts address these issues moving forward.

References:

Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, 23-788 (La. 12/19/24), 397 So. 3d 404.

Pete v. Boland Marine & Mfg. Co., 23-170 (La. 10/20/23), 379 So. 3d 636, reh'g denied, 23-170 (La. 12/7/23), 374 So. 3d 135.

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Louisiana Supreme Court issued a significant ruling in a class action case involving tax credits for solar panels

Recently, the Louisiana Supreme Court issued a significant ruling in a class action case handled by Keogh Cox partners Chris Jones and Nancy Gilbert. The case involved tax credits for solar panels. The Court’s ruling overturned a lower court decision that held an Act of the Legislature unconstitutional. After the plaintiffs’ Application for Rehearing was denied, the Court’s decision is now final.

In Ulrich, et al. v. Kimberly Robinson, Secretary of the Louisiana Department of Revenue, 2018-0534 (La. 3/26/19), 2019 WL 1395316, the class action plaintiffs were persons who purchased and installed residential solar panel systems in their homes. When they claimed the solar electric system tax credits on their 2015 state tax returns pursuant to La. R.S. 47:6030, the tax credits were denied by the Louisiana Department of Revenue, based on Act 131 of the 2015 legislative session. Act 131 capped the maximum amount of solar panel tax credits to be granted by the Department of Revenue, and the plaintiffs’ claims were made after the cap was exhausted.

When their claims for the tax credits were denied, plaintiffs filed a declaratory judgment action seeking to declare Act 131 unconstitutional. During the pendency of the suit in the district court, the Louisiana Legislature enacted Act 413 which provided additional funding for solar tax credits. Under Act 131, all taxpayers whose solar panel tax credit claims were previously denied would receive the entirety of their tax credits over installments. The district court declared Act 131 unconstitutional and concluded that Act 413 did not moot the controversy.

Because the district court declared Act 131 unconstitutional, the Department directly appealed the decision to the Louisiana Supreme Court. Oral arguments occurred in October of 2018. In the Court’s recent opinion, it concluded that Act 413 mooted the controversy. According to the Court, the plaintiffs no longer maintained a “justiciable controversy” because Act 413 provided for the payment of the entirety of the previously denied tax credits. Accordingly, the Court overruled the district court’s judgment that declared Act 131 unconstitutional. Plaintiffs filed an Application for Rehearing and that request was recently denied, making this decision final.

Chris Jones is a partner with Keogh Cox in Baton Rouge, LA. He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country. He is a life-long resident of Baton Rouge, where he lives with his wife and four children.

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Louisiana Supreme Court Now Allows Direct Negligence Claims Against Employer

In a previous blog, we outlined developing law in the Louisiana appeals courts, and federal district courts in Louisiana on the issue of whether a claimant may maintain a separate cause of action against an employer for independent negligence when it is stipulated that the employee was in the course and scope of employment.¹ Most courts held a claimant could not maintain a separate action against the employer under these circumstances, reasoning that the employee’s fault would impute to the employer, and therefore, additional inquiry was not appropriate. However, the Louisiana Supreme Court recently addressed the issue and stated:

“(A) plaintiff may pursue both a negligence cause of action against an employee for which the employer is vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention as well as a negligent entrustment claim, when the employer stipulates that the employee was in the course and scope of employment at the time of the injury.” (Emphasis added) See Martin v. Thomas et al., 21-1490 (La. 12/21/21), 328 So. 3d 1164.

This holding notably overturned the 1^st Circuit Court of Appeal ruling in Elee v. White, - - So.3d - - (La. App. 1 Cir 7/24/20), 2020 WL 4251974 and other Louisiana 5^th Circuit Court of Appeals decisions. The Supreme Court in Martin reasoned that “the initial assessment of fault required by the law is not bypassed due to the employer-employee relationship” and “shielding a potential tortfeasor from liability is not compatible with a comparative negligence regime.” The Court further stated that the possibility that both the employee and employer may be at fault is not “subsumed” by the employer’s admission on course and scope. In fact, if the fault of the employee is shown, then the issue of whether there is also fault on the part of the employer remains and must be decided by the evidence on a case-by-case basis.

The consequences of this decision remain to be seen, but it is expected that claimants may also pursue employers separately on theories such as negligent hiring, supervision, and entrustment. The scope of such discovery will remain within the sound discretion of the trial judge.

By: John P. Wolff, III and Richard W. Wolff

¹Louisiana Appeal Courts Prohibit Direct Negligence Claims Against Employer; US District Court Uses Rule to Limit Discovery - Keogh Cox

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Legislature Responds to Louisiana Supreme Court Decision and Sets New Public Policy Regarding Insurance Coverage for Permissive Use of Non-Owned Vehicles

Imagine you are visiting family during the holidays. As a favor, you take a family member’s vehicle to the gas station for a fill-up. While in transit, you get into an accident where you are at fault. Does your insurance policy provide coverage for the accident?

According to La. R.S. 22:1296.1, a new statute that went into effect on August 1, 2022, the answer to this question is “yes,” your insurance may afford coverage under these facts.

La. R.S. 22:1296.1 now requires insurance policies issued in Louisiana to provide coverage when the driver insured under the policy operates a non-owned vehicle with the express or implied permission of the vehicle’s owner. The statue was enacted to declare a new public policy regarding this issue and was passed in response to the Louisiana Supreme Court’s decision in Landry v. Progressive Security Insurance Company, 2021-00621 (La. 1/28/22), reh'g denied, 2021-00621 (La. 3/25/22); 338 So.3d 1162.

The Landry case involved a motor vehicle accident that occurred as the defendant-driver, as a favor to the vehicle’s owner, drove the vehicle to a tire shop to repair a tire. The plaintiffs brought an action against the defendant-driver, the driver’s insurer, and the insurer of the vehicle that he drove at the time of the collision.

The Louisiana Supreme Court upheld a provision in the driver’s policy that stated coverage under such circumstances was only available when the driver’s own vehicle was out of service. Because the driver’s vehicle was not out of service, no coverage was found under the driver’s policy. In so holding, the Landry court found that public policy did not require automobile insurance liability coverage for a driver’s negligent operation of a non-owned vehicle.

The Louisiana legislature enacted La. R.S. 22:1296.1 in response to the Landry decision. The statute provides that an insurer writing automobile liability, uninsured, underinsured, or medical payments coverage shall not exclude the benefits of such coverage under its policy to an insured operating a non-owned vehicle if all of the following requirements are satisfied:

The coverage is in full force and effect.
The insured is operating a vehicle owned by another with the express or implied permission of the vehicle’s owner.
The non-owned vehicle that is being operated by the insured is not provided, furnished, or available to the insured on a regular basis.

The statute also provides this coverage is secondary to the vehicle owner's insurance policy. Furthermore, if the coverage provided under the statute is included within the coverage provided pursuant to La. R.S. 22:1296, which addresses coverage for temporary, substitute, and rental vehicles, the provisions of La. R.S. 22:1296 determine which coverage is primary. (For additional information regarding La. R.S. 22:1296 click here.) [Sophia, please include link to blog from 5/25/22].

Let’s return to real life scenarios like those we addressed above. Perhaps you are blocked in at a party, so a friend tosses you the keys to move their car, or, like the situation in Landry, maybe you are trying to do a good deed by driving your parents’ car to a gas station for a fill-up when an accident occurs. While it remains to be seen how courts will interpret this statute in these circumstances, under the new legislation, these actions may now implicate coverage under your insurance policy.

Case Reference: Landry v. Progressive Security Insurance Company, 2021-00621 (La. 1/28/22), reh'g denied, 2021-00621 (La. 3/25/22); 338 So.3d 1162.