ROBERT MARIONNEAUX III v. WILSON ALEXANDER USAA CASUALTY INSURANCE COMPANY AND LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY (2026)

In this automobile accident case, defendant, Capital City Press d/b/a as The Advocate (“The Advocate”) appeals a trial court judgment awarding plaintiff, Robert Marionneaux, III, $18,422,935.20 in damages plus interest from the date of demand until paid. We affirm in part, as amended, and reverse in part.

FACTS AND PROCEDURAL HISTORY

On July 30, 2020, around 8:34 a.m., Mr. Marionneaux was involved in an automobile accident in East Baton Rouge Parish. Mr. Marionneaux, traveling in a GMC Sierra Denali pickup truck was merging onto the interstate at the Perkins Road entrance when two vehicles stopped in front of his truck. He stopped his truck, and as he looked in his rearview mirror, he observed that a Kia Sportage SUV, driven by Wilson Alexander, following directly behind him, was not stopping. Mr. Marionneaux placed both of his feet on the brakes and braced for impact. The impact from the collision caused the airbag in Mr. Marionneaux's truck to deploy, and the truck was propelled 50 feet forward. As a result of the collision, Mr. Marionneaux sustained injuries to his back.

Mr. Marionneaux later filed suit against Mr. Alexander,¹ his liability insurer, USAA Casualty Insurance Company (“USAA”),² and Mr. Marionneaux's insurer, Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”). Mr. Marionneaux averred that Mr. Alexander failed to slow his vehicle and “suddenly, violently, and without any warning, struck the rear of’ the vehicle driven by Mr. Marionneaux, resulting in a rear-end collision. He further averred the accident caused significant property damage and he sustained severe debilitating personal injuries.

Mr. Marionneaux later filed a first supplemental and amending petition for damages. Therein, he sought to amend the caption of the original petition to change Alexander Wilson to Wilson Alexander and to change USAA to Garrison Property and Casualty Insurance Company. He also added a claim that Farm Bureau had failed to tender any amounts to him regarding his claim.³

Farm Bureau subsequently filed a third-party demand. In its third-party demand, Farm Bureau alleged that at the time of the accident, Mr. Alexander was in the course and scope of his employment as a sportswriter for The Advocate. Farm Bureau noted that at the time of accident, Mr. Marionneaux had automobile insurance with Farm Bureau that covered his vehicle involved in the July 30, 2020 accident, which included uninsured/underinsured motorist coverage and medical payment coverage. Farm Bureau alleged that pursuant to said policy, funds to or on behalf of Mr. Marionneaux under the medical payments coverage of the policy were tendered. Therefore, Farm Bureau asserted that it was subrogated to Mr. Marionneaux's right to recover all such payments along with any other payments issued in connection with this matter. Mr. Marionneaux subsequently filed a second supplemental and amending petition for damages, adding The Advocate and its unknown insurer, ABC Insurance Company, as defendants.

Prior to trial, the trial court granted Mr. Marionneaux's motion for partial summary judgment on the issue of liability, finding “the negligence of [Mr. Alexander] was the sole cause of the July 30, 2020 motor vehicle collision.” Following a three-day jury trial, the jury found Mr. Marionneaux was injured and Mr. Alexander was in the course and scope of his employment with The Advocate at the time of the accident. The jury awarded Mr. Marionneaux damages in the amount of $18,422,93 5.20. On March 10, 2025, the trial court signed a judgment in conformity with the jury's verdict. It is from this judgment that The Advocate now appeals.

On appeal, The Advocate assigns error to the following:

1. The jury erred when it concluded that [Mr.] Alexander was acting within the course and scope of his employment with The Advocate at the time of the accident, making The Advocate vicariously liable for the accident.

2. The jury's general damages award to [Mr.] Marionneaux of $18 million was abusively high and must be reduced.

3. The District Court erred in granting judgment in Farm Bureau's favor because Farm Bureau did not submit its claim to the finder of fact and failed to provide evidence that it paid anything to Marionneaux.

4. The final judgment is also defective because it: (a) exposes The Advocate to duplicative liability; (b) contains an award in favor of the Farm Bureau entities that must be construed using parol evidence; and (c) renders a judgment in favor of a non-party.

VICARIOUS LIABILITY

Standard of Review

The factfinder's determination that a particular act is within the course and scope of employment for purposes of vicarious liability is a factual finding governed by the manifest error rule. See Doe v. ABC School, 2019-0983 (La. App. 1st Cir. 12/17/20), 316 So.3d 1086, 1095, writ denied, 2021-00098 (La. 3/9/21), 312 So.3d 582. The application of this standard of review mandates that this court can only reverse the factfinder's factual findings when (1) the record reflects that a reasonable factual basis does not exist for the finding and (2) the record establishes that the finding is clearly wrong in light of the record reviewed in its entirety. Id; Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 2014-2592 (La. 12/8/15), 193 So.3d 1110, 1115-16.

The two-part test requires an appellate court to do more than simply review the record for some evidence, which supports or controverts the factfinder's findings. “The court must review the entire record to determine whether the [factfinder's] finding was clearly wrong or manifestly erroneous. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the judge's or jury's factfinding conclusion was a reasonable one.” Hayes Fund for First United Methodist Church of Welsh, LLC, 193 So.3d at 1116. (Citations omitted). Therefore, an appellate court “may not merely decide if it would have found the facts of the case differently.” Id. at 1115.

Applicable Law

In Louisiana, the vicarious liability of employers, also known as the doctrine of respondeat superior, which is codified La. Civ. Code art. 2320 provides that employers are answerable for the damage occasioned by their employees in the exercise of the functions in which they are employed. Specifically, an employer is liable for its employee's torts committed if, at the time, the employee was acting within the course and scope of his employment. The proper test in determining an employer's vicarious liability thus consists of two elements: (1) course of employment, which refers to time and place; and (2) scope of employment, which examines the employment-related risk of injury. Macaluso v. Travelers Casualty and Surety Company, 2010-1478 (La. App. 1st Cir. 2/23/11), 59 So.3d 454, 459.

Generally, an employee's conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. Awanbor v. Williams, 2025-0054 (La. App. 1st Cir. 8/4/25), 418 So.3d 1043, 1049, writ denied, 2025-01124 (La. 11/12/25), 420 So.3d 708.

When assessing vicarious liability, courts consider whether the tortious act: (1) was primarily employment-rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during working hours; and (4) occurred on the employer's premises. Each factor is not required to be present in each case, and each case must be decided on its own merits. The determinative question is whether the employee's tortious conduct was so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interest. If the purpose of serving the master's business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service. In a negligence case, as distinguished from an intentional tort case, the court need only determine whether the servant's general activities at the time of the tort were within the scope of employment. Awanbor, 418 So.3d at 1049-50.

The scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the employee in performing his assigned tasks. Macaluso, 59 So.3d at 459-60. An employee may be within the course and scope of his employment, yet deviate from it while engaging in a personal mission. However, the mere fact that an employee is performing a personal mission while on an employment-related mission does not automatically compel the conclusion that the deviation removes him from the course and scope of employment. Id. at 460.

In order to remove the employee from the course and scope of employment, a deviation must be identifiable as such by its personal, nonbusiness purpose and must be substantial. There is no bright-line rule in determining what is a substantial or insubstantial deviation. This determination is a fact-driven inquiry made on a case-by-case basis. In making the determination, a factfinder should examine all the facts and circumstances of the deviation, including such illustrative and non-exhaustive factors as: (1) when and where the deviation on a personal errand occurs relative to the employment-related errand; (2) the temporal and spatial boundaries of the deviation, (3) the nature of the employee's work; (4) the additional risks created by the deviation; and (5) the surrounding circumstances. The factfinder should also consider whether there was a “linking relationship” between the employment-related errand and the deviation; that is, whether the deviation was the result of or related to the employment or instead only incidental to it. Finally, the reasonableness of a deviation could have some bearing upon the determination of its substantiality, but reasonableness is not the conclusive factor. The focus of the factfinder is the determination of whether the deviation is substantial or insubstantial rather than whether it is reasonable. Macaluso, 59 So.3d at 460-61.

The mere fact that a deviation is of short duration and does not extend a great distance beyond the geographic bounds of the employment mission does not make it insubstantial for purposes of determining whether it remained within the employee's course and scope of employment. An insubstantial deviation in terms of time and space may nevertheless involve a substantial deviation in purpose, justifying a finding that the deviation was outside the course and scope of employment. Thus, a factfinder must consider not only the extent of deviation in route or location but also the extent of deviation in purpose in determining the connexity “in time, place, and causation” between the employee's tort and his employment duties. Id. at 461.

If the incidents or factual elements of the deviation itself are operative in producing the accident, that factor in itself weighs heavily against a finding that the deviation is within the course and scope of employment. That is, if the deviation creates additional risks beyond those inherent in the employment errand and substantially increases the risk of the employer's exposure to vicarious liability without corresponding possibility of benefit to the employer, the deviation will generally fall outside the course and scope of employment. Id.

Discussion

In The Advocate's first assignment of error, it contends the jury erred when it concluded that Mr. Alexander was acting within the course and scope of his employment with The Advocate at the time of the accident, making The Advocate vicariously liable for the accident. The Advocate argues it is not vicariously liable to Mr. Marionneaux because Mr. Alexander was not acting within the course and scope of his employment with The Advocate at the time of the accident. The Advocate further argues that no evidence was presented at trial to show that Mr. Alexander had performed any work-related activity on the morning of the accident. The Advocate urges the court to note the “coming and going rule” as Mr. Alexander testified that he was returning to his apartment so he could begin his work. The Advocate contends that Mr. Alexander's “on-call” status is not enough to render Mr. Alexander in the course and scope of his employment at all times and the factfinder should not rely on the timecard as other evidence demonstrates the time card is incorrect.

In support of his vicarious liability claim, Mr. Marionneaux offered testimony from Mr. Alexander, Fred Kalmbach, the managing editor for The Advocate, and Judi Terzotis, the Chief Executive Officer for The Advocate.

At trial, Mr. Alexander identified his “time card report from the date range of July the 1st, 2020, to July 31st, 2020.” The time card reflected that Mr. Alexander's work hours on the day of the accident were from 8:00 a.m. to 4:00 p.m. Mr. Alexander confirmed the accident occurred at 8:34 a.m. on July 30, 2020, but he denied working from 8:00 a.m. to 4:00 p.m. that day, explaining that The Advocate never asked him to submit the exact time he clocks in and out. He testified that he reported he worked 8 hours that day. He clarified that he reported the number of hours he worked, not the time he clocked in and out. He stated that his work had not started that early in the day (at the time of the accident) and that on the day of the accident, he was working into the night. Mr. Alexander testified that he was not a salaried employee but was paid hourly. According to Mr. Alexander, the accident occurred after he picked up his dry cleaning from Sunshine Cleaners and was headed home.

Mr. Alexander further testified that listening to podcasts, sports, deals, or anything about LSU is “within the course of [his] job.” He confirmed that part of his job also consists of making phone calls, obtaining information, conducting interviews, corresponding, texting, and emailing. Mr. Alexander indicated the only items he needed to do his job were his laptop, recorder, personal cell phone, charger, and notepad. He confirmed he used his personal vehicle and personal cell phone for work and The Advocate reimbursed him for mileage and paid him $50.00 a month for the use of his personal cell phone.

According to Mr. Kalmbach, Mr. Alexander was a sports reporter, and as a sports reporter, Mr. Alexander's schedule necessitated flexibility. Mr. Kalmbach testified that The Advocate expected sports reporters to work beyond forty hours per week within reasons if there were cause to. Mr. Kalmbach further testified that Mr. Alexander was an hourly employee. Mr. Kalmbach confirmed The Advocated paid Mr. Alexander based on documentation showing he worked from 8:00 a.m. to 4:00 p.m., and Mr. Alexander's time card did not reflect that Mr. Alexander clocked out for personal reasons or for lunch. During trial, Mr. Kalmbach identified a document captioned “Employee Daily Totals Report” for Mr. Alexander, which reflected that on the date of the accident, Mr. Alexander worked eight hours, but the document does not specify the time Mr. Alexander worked that day.

Mr. Kalmbach confirmed that as part of Mr. Alexander's employment, he was required to use his personal cell phone and personal vehicle for work. According to Mr. Kalmbach, Mr. Alexander could perform work from his personal vehicle, which included conducting phone interviews. Mr. Kalmbach recognized that although The Advocate's company handbook discouraged the use of cell phones while driving, it was not expressly prohibited.

Ms. Terzotis confirmed that, with reporters, normal work hours were not “set hours.” She testified that the reporters worked as the stories developed, whether that be early in the morning or in the middle of the night. Ms. Terzotis confirmed that the type of job Mr. Alexander had was not an 8:00 a.m. to 4:00 p.m. or 9:00 a.m. to 5:00 p.m. job.

The deposition of Perryn Keys, Executive Sports Editor for The Advocate, was introduced into evidence during the trial. Mr. Keys explained a reporter's job is not an 8:00 a.m. to 5:00 p.m. job. Employees work more than eight hours some days and fewer than eight hours other days. He stated that he generally does not micromanage his employees by telling them what they must do on a given day. Mr. Keys explained the reporters provided the number of hours they worked each day, and Mr. Keys reviewed and approved timesheets. According to Mr. Keys, the use of communication through social media and multimedia platforms, production of videos, and listening to podcasts are all part of Mr. Alexander's job.

Regarding the accident, Mr. Keys learned of the car accident at some point within a few weeks of the accident or within a couple of days of the accident. Mr. Keys did not report the accident to Human Resources because Mr. Alexander told him he was not engaged in a work-related activity at the time of the accident. Mr. Keys confirmed that at the time of the accident, Mr. Alexander had a cell phone stipend.

Mr. Alexander's AT&T cell phone records were also introduced into evidence. Mr. Alexander's cell phone records show that on the day of the accident, data usage for 7:42 a.m., 7:55 a.m., and 8:42 a.m. The duration of each transaction was 60 minutes. However, according to the cell phone records, “Data records have a maximum limit of 60 minutes in the CDR record system. Another record is created when a continuous data session exceeds the 60 minute limit.” Furthermore, at the bottom of the page of the cell phone records is the following: “The AT&T network constantly communicates with internet enabled devices when they are powered on. These communications will show as data usage on the customer records but do not necessarily indicate a customer initiated a transaction.”

When relying solely on circumstantial evidence to prove a person was acting in the course and scope of his employment, the evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. See Ledet v. Robinson Helicopter Co., 2015-1218 (La. App. 1st Cir. 4/15/16), 195 So.3d 89, 94, writ denied, 2016-0093 7 (La. 9/6/16), 204 So.3d 1002.

After a thorough review of the entire record, we cannot say the jury's finding of vicarious liability was clearly wrong. Mr. Alexander's time card, produced by The Advocate, showed that Mr. Alexander was paid for working between the hours of 8:00 a.m. and 4:00 p.m. on the day of the accident. Additionally, Mr. Alexander was a fully remote employee, and as part of Mr. Alexander's duties, he used his cell phone, listened to podcasts, and reviewed and posted on social media platforms such as Twitter. Furthermore, Mr. Alexander's cell phone records revealed data usage around the time of the accident, which the jury could have reasonably believed was initiated by Mr. Alexander, despite the AT&T disclaimer, and was related to his employment as a sport reporter for The Advocate.

Moreover, although Mr. Alexander denied he was working at the time of the accident, the trier of fact is charged with assessing the credibility of the witnesses and, in doing so, is free to accept or reject, in whole or in part, the testimony of any witness. DePedro v. State Through Department of Transportation and Development, 2024-0877 (La. App. 1st Cir. 7/3/25), 417 So.3d 1061, 1096. In light of the jury's verdict, it obviously rejected Mr. Alexander's testimony that he was not working for The Advocate at the time of the accident. Based on the direct and circumstantial evidence, the jury could have reasonably concluded, without speculation, that Mr. Alexander was in the course and scope of his employment with The Advocate at the time of the accident. Accordingly, we do not find that the jury manifestly erred in finding The Advocate was vicariously liable to Mr. Marionneaux.

QUANTUM

In The Advocate's second assignment of error, it asserts the jury's general damages award to Mr. Marionneaux of $18,000,000.00 was abusively high and must be reduced. The Advocate suggests that the jury should compensate Mr. Marionneaux with an award of $1,200,000.00 million in general damages. The Advocate did not challenge the award for special damages on appeal.

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitively measured in monetary terms. DePedro, 417 So.3d at 1100 (citing Jones v. Market Basket Stores, Inc., 2022-00841 (La. 3/17/23), 359 So.3d 452, 464). It is well-settled that a trial judge or jury is given great discretion in the assessment of quantum, of both general and special damages. DePedro, 417 So.3d at 1100 (citing La. Civ. Code art. 2324.1; Fontenot v. Louisiana Department of Public Safety and Corrections, 2021-1213 (La. App. 1st Cir. 4/8/22), 342 So.3d 28, 35). 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. Fontenot, 342 So.3d at 35 (citing Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So.2d 70, 74).

In conducting a review of a damage award, this court is mindful that neither the trial court nor this court may substitute its evaluation of the proper amount of damages for that of the jury unless the jury's award totally offends reasonable inferences from the evidence. DePedro, 417 So.3d at 1100 (citing Gutierrez v. Louisiana Department of Transportation and Development, 2011-1774 (La. App. 1st Cir. 3/23/12), 92 So.3d 380, 386, writ denied, 2012-1237 (La. 9/21/12), 98 So.3d 343). The supreme court has long recognized that “[r]easonable persons frequently disagree about the measure of general damages in a particular case.” Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, 2023-00788 (La. 12/19/24), 397 So.3d 404, 408 (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993) abrogated on other grounds) (“hereinafter Barber II”). The supreme court has observed, “[t]he standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award.” Barber II, 397 So.3d at 408. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award.” Id.

In Pete v. Boland Marine and Manufacturing Company, LLC, 2023-00170 (La. 10/20/23), 379 So.3d 636, 639, the supreme court held “an appellate court must consider relevant prior general damage awards as guidance in determining whether a trier of fact's award is an abuse of discretion.” Nevertheless, the court recognized the difficulty in approaching how to determine whether an award is inadequate or excessive. The court noted, “determining whether there has been an abuse of discretion in an award for general damages ․ is problematic, as ‘[g]eneral damages ․ are inherently speculative in nature and cannot be fixed with mathematical certainty.’ ” Id. at 641 (citing Wainwright 774 So.2d at 74.). The court observed, “[t]here are no objective guidelines to assess the monetary ‘value’ of a general damages claim, and ․ ‘no bright line rule at work’ [exists] to define when a trier of fact's damages award is an abuse of discretion.” Id. at 642. The court bluntly stated, “if a trial court has absolute discretion in determining the amount of general damages, then the appellate review process is redundant and unnecessary.” Id. at 642. The court agreed that, “in the context of a review of a general damage award, the abuse of discretion standard lacks parameters[.]” Pete, 379 So.3d at 642. Therefore, the court was compelled to find an approach that included an element of objectivity. Id. at 642. The court directed:

The question of whether the trier of fact abused its discretion in assessing the amount of damages remains the initial inquiry. However, to evaluate this issue, an appellate court is to include a consideration of prior awards in similar cases, as well as the particular facts and circumstances of the case under review. If an 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.”

Id. at 644.

The jury awarded Mr. Marionneaux the following in general damages: $1,000,000.00 for past physical pain and suffering; $1,000,000.00 for future physical pain and suffering; $2,000,000.00 for past mental anguish; $1,000,000.00 for future mental anguish; $4,000,000.00 for past loss of enjoyment of life; $6,000,000.00 for future loss of enjoyment of life; $3,000,000.00 for disability; and $0 for scarring and disfigurement.

Mr. Marionneaux testified that he was born on April 26, 1998. At the time of the accident, Mr. Marionneaux was twenty-two years old, and he was twenty-six years old at the time of trial. He stated that he was raised on a cattle farm, and before the accident, he drove tractors, helped his dad with cattle, rode horses, hunted, offshore fished, played sports, and spent time outside any chance he had. Mr. Marionneaux testified he played football and basketball in high school. He was extremely active before the accident, and now he would need someone to help him with hunting. He further testified that since the accident, he would need assistance with hunting activities given his lifting restrictions of twenty-five pounds and could no longer ride a tractor for four or five hours or run behind calves. He stated that, overall, there were a lot of farm activities he could no longer perform.

Mr. Marionneaux stated that immediately after the accident, he felt sore and stiff, and the day after the accident, he went to the Lake After Hours Clinic where he was given a shot. Approximately one to two weeks after the accident, Mr. Marionneaux woke up in unbearable pain. He testified that he had to call his dad to help him get out of the bed. Mr. Marionneaux further stated that it was tough to have his dad assist him in putting on clothes.

Mr. Marionneaux testified that after the accident, he went to physical therapy. He also did home exercises as recommended by the doctor. Mr. Marionneaux further testified that he planned to proceed with the recommended surgery concerning the adjacent degeneration once he passed the bar examination. Mr. Marionneaux described the difficulty he had studying for the bar exam. He explained that after graduation from law school in May until July, the date of the bar exam, a person generally studies eight hours a day every day sitting at a desk, but he could not sit for more than two hours, as he was constantly moving. Mr. Marionneaux explained he was uncomfortable from the moment he woke up in the morning. He testified that every decision he made involved his back, including the type of shoes he was going to wear. Mr. Marionneaux stated that although he was still able to do things, he was not able to do them nearly as well or was able to enjoy them as he did before the accident. He testified that he was nervous while driving. Mr. Marionneaux stated, “there's not a day where I don't think about the pain in my back. It's every day. It doesn't matter if I had the injection and it's giving me relief, when I wake up, by the end of the day, I'm going to be hurting.”

Robert Marionneaux, Jr. (“Robert”) testified Mr. Marionneaux is his son and they live on a family farm. He testified that before the accident, Mr. Marionneaux rode horses, drove tractors, and worked on their family farm. Robert further stated that Mr. Marionneaux would also snow ski, water ski, ride dirt bikes, and fish offshore.

Robert confirmed that at the time of the accident, Mr. Marionneaux had almost completed his undergraduate program at Louisiana State University. He testified that Mr. Marionneaux planned to attend graduate school and then law school. Mr. Marionneaux went to law school. Robert explained that as a law school student, Mr. Marionneaux was required to sit in a chair and read for several hours a day, but he could not do so. According to Robert, Mr. Marionneaux had difficulty studying because he could not sit still, he could not look down, and that while sitting his leg would go numb. Robert testified that Mr. Marionneaux did not pass the bar exam the first time and that failing the bar exam weighed on Mr. Marionneaux mentally.

Robert confirmed that he was on the phone with Mr. Marionneaux at the time of the accident and heard the crash. Robert, who immediately drove to the scene of the accident, described the truck as being “mashed up” and indicated that when he opened the door of the truck, smoke was everywhere. Robert videoed the scene of the accident and the video was introduced at trial.

Robert further testified that approximately two weeks after the accident, Mr. Marionneaux had an MRI because he could not get out of bed. Robert had to pick him up and place him in the shower. For roughly a couple of months following the accident, Mr. Marionneaux would have to use the back of a chair to move down the hallway or get across the house. Robert indicated that since the accident, Mr. Marionneaux has not been the same.

The unrebutted medical evidence concerning Mr. Marionneaux's injuries was presented by his treating physicians, Dr. Eric Oberlander and Dr. Samir Patel, of the NeuroMedical Center in Baton Rouge. Dr. Oberlander, who was accepted as an expert in the field of neurosurgery, had been treating Mr. Marionneaux for approximately four-and-one-half years at the time of trial. Dr. Oberlander testified Mr. Marionneaux presented with back and leg pain, sciatica, and a limp. Mr. Marionneaux had an MRI scan that showed large disc herniation at the bottom disc, which is the L5-S1 disc. Dr. Oberlander described Mr. Marionneaux injury as a “blowout of the bottom of those discs, and there is a chunk of disc material that's pushing onto his sciatic nerve.” Dr. Oberlander explained “[i]n this case, the disc, the L5-S1 disc, which is the bottom-most disc, it blew out a chunk of rubbery disc material backwards into the spinal canal where the nerve roots are running, and that chunk of disc oftentimes pushes on the nerve.” He testified this is called sciatica or the sciatic nerve and the back pain is due to the herniated disc. Dr. Oberlander confirmed “[s]omebody who is 22 years old normally doesn't have positive for a large left lateral focal disc herniation with fragments.”

Dr. Oberlander treated Mi-. Marionneaux with medicine and physical therapy and referred him to a pain management doctor for an injection. Mr. Marionneaux has had eight epidural shots in a four-year period. Dr. Oberlander testified that on November 17, 2023, Mr. Marionneaux returned with worsening back pain, lower left extremity pain, and numbness down to his foot. Dr. Oberlander further testified that a recent MRI showed Mr. Marionneaux's disc has degenerated and collapsed down, and the disc herniation fragment was still there. The MRI also showed an additional problem called spondylolisthesis where the bones have actually shifted. Dr. Oberlander opined Mr. Marionneaux is no longer a candidate for the micro surgery he initially wanted to perform and instead he will need a “bigger surgery.” Dr. Oberlander explained Mr. Marionneaux will need a lumbar fusion—a procedure where Dr. Oberlander would go in and rebuild a spot. According to Dr. Oberlander, he would remove the entire “bad disc” and separate the bones to reinflate the space to accommodate a spacer. The procedure is called the Tranforminal Lumbar Interbody Fusion.

Dr. Oberlander indicated that lumbar fusion leads to accelerated natural spinal degeneration of the next level above and stated that in twenty-five years, Mr. Marionneaux will need a lumbar fusion at the adjacent level. Dr. Oberlander described the short-term limitations after the surgery. Dr. Oberlander stated, “[w]ell, when you're healing from a lumbar fusion, we don't want you doing anything other than walking. That's it, walking. You can't do yard work. You can't go to the gym, can't go hunting or fishing.” He cautioned, “[f]ive minutes of doing the wrong thing, you can screw it up. You can pull those screws out of the bone. You can kick out the graft. So you really have to take it easy.”

Dr. Oberlander testified, “[o]nce the glue is dry, once it's fused, which could take six months, or even longer, up to a year, once it's rock solid, then you can increase your activity level․” He indicated, “you can go about your business and do most things, but when it comes to work issues, it's not forbidden to do really strenuous things, but it's not a good idea.” Dr. Oberlander confirmed that it would be risky for Mr. Marionneaux to continue with his previous activities such as working with cattle, riding horses, using the tractor, and generally helping his father with the farm, which could result in reinjury. Dr. Oberlander stated it was very common for patients to continue to have some level of chronic pain after a fusion. Dr. Oberlander believed with a reasonable degree of medical certainty that it was more probable than not that the accident caused the necessity of the medical treatment, the adjacent degeneration injunction disease, and the proposed surgery.

Dr. Patel, who was accepted as an expert in the field of pain management, diagnosed Mr. Marionneaux with radiculopathy—when pain from your low back radiates down through your legs. Dr. Patel's recommended treatment for his pain was lumbar epidural steroid injections. Dr. Patel confirmed he performed eight epidural steroid injections procedures on Mr. Marionneaux's lower back.

Dr. Patel confirmed that Mr. Marionneaux initially got tremendous relief from the injections, which continued to lessen over the years. Dr. Patel agreed with Dr. Oberlander's recommendation that Mr. Marionneaux undergo a lumbar fusion. Dr. Patel was aware that Mr. Marionneaux had done several rounds of that physical therapy, but physical therapy was no longer helping. Dr. Patel believed with a reasonable degree of medical certainty that it was more probable than not that the accident caused or contributed to the need for the eight epidural steroid injections and the treatment was necessary. He testified that Mr. Marionneaux would potentially benefit for up to two more of these injections a year for the rest of his life.

In Thomas v. BNSF Railway Company, 2023-1209 (La. App. 1st Cir. 8/21/25), 420 So.3d 732, 747-48, writ granted, 2025-01197 (La. 12/9/25), 424 So.3d 615, aff'd. as amended, 2025-01197 (La. 5/1/26), 432 So.3d 727 ⁴ relied on by Mr. Marionneaux, this court found no abuse of the jury's vast discretion in its assessment of an $8,000,000.00 total general damage award. This court noted that the plaintiff therein had suffered permanent, life-altering physical and mental injuries and endured daily, physical and mental pain that would most likely last the rest of his life. The plaintiff was operating a garbage truck, which collided with a train that struck the rear portion of the garbage truck. Id. at 736.

In Thomas, the evidence showed the plaintiff suffered serious physical and psychological injuries as a result of the collision with the train. He underwent a two-level fusion surgery with six screws to stabilize his low back, after which he suffered surgical complications, including a “scary” spinal fluid leak that required two more surgeries, infections for six months post-op that required painful, daily medical assistance due to an open wound at the surgical site, and residual radiating leg pain potentially requiring future back surgeries and a spinal cord stimulator. The plaintiff suffered from flashbacks regarding the accident and debilitating depression related to his chronic pain and life changes since the accident. Id. at 744.

In that case, the plaintiff testified that before the accident, he enjoyed working with his hands, performing physical labor, mechanic work, carpentry work, and work around his house. He also enjoyed fishing, playing basketball, dominos, cards, and traveling to visit his children. However, after the accident, he no longer did those things nor did he spend time with friends like he used to do before the accident. He was described as being an outgoing and very family-oriented man, who enjoyed doing things with and for his relatives and friends. The independent, active, and happy lifestyle enjoyed by the plaintiff all changed the day of the accident. The plaintiff now lives with chronic pain and depression every day and he lost all enjoyment in his life. Id. at 744-45. The plaintiff was unable to return to work after the accident. Prior to the accident, the plaintiff was a hard-working, physically fit, and mentally healthy forty-seven-year-old man. Id. at 744.

In Barber II, 397 So.3d at 415, also relied on by Mr. Marionneaux, the court reconsidered and affirmed a jury's award of $10,750,000.00 in general damages for a plaintiff who sustained a serious traumatic brain injury in a vehicular accident.⁵ Using the Pete two-step analysis, the supreme court considered the voluminous and largely unrebutted trial record, which demonstrated the particularly detrimental effect the injuries had on the plaintiff's personality, lifestyle, identity, and self-image, and found the general damage award was on the high end of the range of reasonable awards but was not greatly disproportionate to the mass of prior awards. See Barber II, 397 So.3d at 415-16; Pete, 379 So.3d at 643-644. The court noted the plaintiff's craniofacial injuries requiring intubation and multiple surgeries, including reconstructive face surgery, cervical spine and shoulder injuries that required surgeries, brain damage, chronic pain, anxiety, depression, and insomnia, all of which drastically changed the plaintiff's life. See Id. at 410-414. The court found that the record amply demonstrated the particularly detrimental effect the injuries had on the plaintiff's personality, lifestyle, identity, and self-image. Barber II, 397 So.3d at 416. The court recognized the jury must have accorded significant weight to the strong evidence of the thirty-seven-year-old plaintiffs injuries, impairments, limitations, transformed appearance, altered personality, and resulting depression, all of which he was keenly aware. Id. Therefore, on rehearing, the supreme court found that the general damage award did not “shock the conscience” and did not constitute an abuse of discretion. Id. at 416.

In Howard v. Norton, 2019-0565 (La. App. 1st Cir. 6/12/20), 2020 WL 3109388, *6 (unpublished), relied on by The Advocate, this court affirmed a jury verdict awarding $90,000.00 in general damages. There, the plaintiff was rear-ended in an automobile accident and sustained injuries to his back and neck. In the months following the accident, the plaintiff went to physical therapy and received steroid injections. Id. at *1. Approximately three years after the accident, the plaintiff underwent a two-level lumbar fusion surgery at L4-5 and L5-S1. Id. at *2. Because of restrictions after the surgery, the plaintiff could no longer work as a sandblaster although he continued to do so approximately three-and-one-half years after the accident. Id. at * 5. This court believed the award for general damages totaling $90,000.00 was on the low end of the range of reasonable awards but found the jury did not abuse its vast discretion in making the awards. Id. at *6.

In Perry v. Starr Indemnity & Liability Company, 52,720 (La. App. 2d Cir. 9/25/19), 280 So.3d 813, 824, also relied on by The Advocate, the court affirmed a jury verdict awarding the plaintiff $250,000.00 for past and future physical pain and suffering and $0.00 for loss of enjoyment of life. Following an automobile accident, the plaintiff sustained injuries to his neck and back. Id. at 816. The plaintiff had steroid injections in his cervical spine and lumbar spine to control the pain and lumbar fusion surgery. After the surgery, the plaintiff had two lumbar injections. Id. at 817. The court noted that the plaintiff's testimony was the only evidence he offered to prove how the accident detrimentally changed his lifestyle. The court observed that the jury obviously found the plaintiff's testimony lacked credibility, noting the plaintiff's testimony was impeached regarding his postaccident activities. Perry, 280 So.3d at 824.

In a recent automobile accident case, Levine v. Nationwide Agribusiness Insurance Company, 2023-488 2023-489 (La. App. 3d Cir. 3/6/24), 381 So.3d 908, 920, writ denied, 2024-00426 (La. 6/19/24), 3 86 So.3d 310, the court affirmed an award for general damages of $3,231,941.87 where the plaintiff sustained injuries to his back, neck, and shoulder. The plaintiff underwent three surgeries: a lumbar fusion, implantation of a spinal cord stimulator, and a shoulder surgery. At the time of trial, the plaintiff was scheduled to undergo a cervical fusion. The plaintiff struggled with activities of daily living. Because of a head injury caused by the accident, he suffered from chronic headaches and dizziness, which according to the medical experts would affect him for the rest of his life. The plaintiff also suffered from severe depression with suicidal thoughts. The plaintiff lost his job as a police officer. The court found because of the plaintiff's physical, mental, and life altering injuries, the jury did not abuse its discretion in awarding the plaintiff $3,231,941.87 in general damages.⁶ Id. at 921.

In another automobile accident case, Kennedy v. Davis, 2017-218 (La. App. 3d Cir. 10/4/17), 229 So.3d 558, 561-71, writ denied, 2017-1869 (La. 1/9/18), 231 So.3d 654, the court affirmed an award for general damages of $2,365,000.00 for the plaintiff, a retired Vietnam Veteran with prior back trouble, who sustained an injury to his back. The plaintiff underwent an eight-level lumbar fusion following the automobile accident. Id. at 569. Before the accident, the plaintiff rode motorcycles, cut his own grass, and worked around his house. He had a reasonably active lifestyle for a person of his age. However, after the accident, the plaintiff could barely get out of the house. The plaintiff would have to undergo extensive future surgeries, followed by serious, long-term rehabilitation. The court found it was reasonable from the evidence presented for the jury to find that the plaintiff suffered extensive pain from his condition that was at the very least, seriously aggravated by the accident at issue. Kennedy, 229 So.3d at 571.

In another automobile accident case, Boyance v. United Fire & Casualty Company, 2023-442 (La. App. 3d Cir. 4/3/24), 387 So.3d 586, writ denied, 2024-00632 (La. 9/24/24), 392 So.3d 1145, the court affirmed a $1,520,000.00 general damage award where a twenty-three-year-old plaintiff sustained injuries to her back, nose, and hip. Id. at 599-603. The collision caused her vehicle to spin around and catch on fire while her four-year-old child was inside and to subsequently explode after his removal. Id. at 599. Initially, the plaintiff was prescribed physical therapy and steroid injections, but she subsequently underwent a laminectomy and foraminotomy. Id. at 599-600. After the accident, the plaintiff suffered from post-traumatic stress disorder, anxiety, nightmares, irritability, and low-level depression. Id. at 600.

We are constrained by the principles set forth in Pete and, therefore, following our consideration of prior awards in similar cases and the particular facts of the case before us, we find the jury abused its discretion in awarding $18,000,000.00 in general damages. The evidence offered at trial established that before the accident, Mr. Marionneaux was an active twenty-two-year-old man who enjoyed hunting, fishing, playing sports, and working on his family farm. Now, he suffers from constant back pain that will require him to undergo a more complex surgery that will result in at least one additional surgery. Further, the medical testimony established that after the lumbar fusion, Mr. Marionneaux will continue to experience some level of chronic pain due to this accident, and he will be unable to resume his normal physical activities without the risk of reinjury. The evidence offered at trial established that due to the accident, Mr. Marionneaux's lifestyle has been forever altered. Accordingly, based on the particular facts and circumstances of this case in conjunction with Pete's two-step analysis, we reluctantly reduce the general damage award from $18,422,935.20 to $10,000,000.00. We find this amount to be the highest amount that could reasonably be awarded. See Pete, 379 So.3d at 644 (“[T]o determine whether a trier of fact abused its discretion in its award for general damages, an appellate court is to consider the particular facts and circumstances of a case, in conjunction with a review of prior awards.”).

We find that reducing the jury award any further would diminish the role and purpose of the jury. The jury had the opportunity to observe and evaluate Mr. Marionneaux's demeanor and assess his and the other witnesses’ credibility. See Rosehill Construction, LLC v. Ted Hebert, LLC, 2024-0834 (La. App. 1st Cir. 11/21/25), 425 So.3d 365, 373 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989) (“only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.”)). As such, we are mindful that the jury was in a much better position to assess the extent of Mr. Marionneaux's mental and physical pain and suffering, and we do not wish to disturb the jury's award any further. Furthermore, we also consider the possible effect of inflation on similar damage awards. See Thomas, 420 So.3d at 746.

SUBROGATION

In The Advocate's third assignment of error, it contends the trial court erred in granting judgment in Farm Bureau's favor because Farm Bureau did not submit its claim to the finder of fact and failed to provide evidence that it paid anything to Mr. Marionneaux. The Advocate contends Farm Bureau failed to put on a prima facie case regarding its third-party demand against The Advocate, as Farm Bureau never established that it paid Mr. Marionneaux under its underinsured motorist policy. The Advocate acknowledged that Farm Bureau and Mr. Marionneaux entered a stipulation regarding Farm Bureau's subrogation rights but indicates it was not a party to that stipulation and therefore cannot be bound by said stipulation.

Farm Bureau contends that at trial, it was prohibited from introducing the “UM” tender payments per La. Code Evid. art. 413—“Any amount paid in settlement or by tender shall not be admitted into evidence unless the failure to make a settlement or tender is an issue in the case.”

Under Louisiana law, although an insurer that pays claims on behalf of its insured is not entitled to legal subrogation, it may still be entitled to conventional subrogation if appropriately provided in the contract of insurance. Old Republic Life Insurance Company v. TransWood Inc., 2016-0552 (La. App. 1st Cir. 6/2/17), 222 So.3d 995, 1005. Conventional subrogation occurs when an obligee who receives performance from a third person subrogates that person to his rights, even without the obligor's consent. La. Civ. Code art. 1827; Id. at 1005. The third person, or conventional subrogee, is substituted to all of the rights of the original obligee and is entitled to recover the full amount of the debt from the obligor, regardless of the amount he paid to the original obligee. Although the obligor's consent is not required for conventional subrogation, the obligee's intention to subrogate must be clearly indicated; furthermore, if subrogation is disputed, the obligee's intention must be shown by “clear proof of acts of the obligee․” Id.

At trial, Farm Bureau introduced an automobile insurance policy and an umbrella liability policy, which it issued to Robert. The automobile insurance policy provides uninsured/underinsured motorist bodily injury coverage, but the amount of coverage has been redacted. Mr. Marionneaux is an additional insured under this automobile insurance policy. The automobile policy includes a subrogation clause, which states the following:

12. Our Right To Recover Payment

If we make any payment under this policy and the person to or for whom payment is made has a right to recover damages from another, we shall be subrogated to that right. However, our right to recover is subordinate to the insured's right to be fully compensated.

Farm Bureau and Mr. Marionneaux entered a pretrial stipulation, captioned “Stipulation on Subrogation,” which is contained in the record on appeal, indicating that Farm Bureau made payments in the amount of $500,000.00 on behalf of Mr. Marionneaux under the terms of the automobile policy. Although this stipulation was filed in to the record on the final day of trial, the stipulation was not formally introduced into evidence during the trial of the matter, and The Advocate was not a party to the stipulation. An appellate court cannot consider evidence on appeal that was physically placed in the record and was possibly reviewed by the trial court if it was not formally introduced into evidence. Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Management Services Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88. Additionally, while we recognize an amount of coverage under an insurance policy should not be communicated to the jury, see La. Code Evid. art. 411; Collins v. Mike's Trucking Company, 2005-023 8 (La. App. 1st Cir. 5/5/06), 934 So.2d 827, 834, writ denied, 2006-1914 (La. 12/8/06), 943 So.2d 1094, no evidence was offered during the trial to demonstrate Farm Bureau made any payments on behalf of Mr. Marionneaux. Instead, Farm Bureau introduced into evidence the insurance policies at issue, which contained a subrogation clause. Accordingly, we find Farm Bureau failed to present sufficient evidence regarding its third-party demand against The Advocate.

JUDGMENT

In The Advocate's fourth assignment of error, it contends the final judgment is also defective because it: (a) exposes The Advocate to duplicative liability; (b) contains an award in favor of the Farm Bureau entities that must be construed using parol evidence; and (c) renders a judgment in favor of a non-party.

Finding merit in The Advocate's argument that Farm Bureau failed to present evidence regarding its third-party demand against The Advocate, we reverse the judgment in part to the extent that it ordered that Farm Bureau was entitled to recover from The Advocate any amount paid to Mr. Marionneaux under the uninsured/underinsured motorist policy.

CONCLUSION

For the foregoing reasons, we amend the March 10, 2025 judgment to reduce the general damage award to Plaintiff Robert Marionneaux, III from $18,422,93 5.20 to $10,000,00.00. We reverse the portion of the judgment that rendered judgment in favor of Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company against Capital City Press, LLC d/b/a The Advocate, and we affirm, in part, the judgment as amended. Costs of this appeal are to be paid one-third by Robert Marionneaux, III, one-third by Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company, and one-third by Capital City Press, LLC d/b/a The Advocate.

JUDGMENT AMENDED; AS AMENDED, AFFIRMED IN PART AND REVERSED IN PART, AND RENDERED.

FOOTNOTES

1.   In the original petition, Mr. Marionneaux refers to the defendant driver as Alexander Wilson, but in the ex parte motion for extension, Wilson Alexander indicates he was incorrectly identified as Alexander Wilson in the petition for damages.

2.   Garrison Property and Casualty Insurance Company answered the petition, noting it was incorrectly named USAA Casualty Insurance Company. USAA Casualty Insurance Company was dismissed, with prejudice, from this litigation.

3.   It does not appear from the record on appeal that the caption was amended in the trial court. Therefore, this court will not amend the caption on appeal.

4.   The Louisiana Supreme Court granted the defendant's writ application solely to review the degree or percentage of fault assigned to the parties. Thomas, 432 So.3d at 728.

5.   In Barber I, the supreme court reduced the general damage awarded to plaintiff to $5,000,000.00. Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, 2023-00788 (La. 6/28/24), 388 So.3d 331, 361, reh'g granted, 2023-00788 (La. 8/2/24), 389 So.3d 828, and on reh'g. 2023-00788 (La. 12/19/24), 397 So.3d 404, reh'g denied, 2023-00788 (La. 2/14/25), 400 So.3d 918.

6.   In Levine, 3 81 So.3d at 913, the jury awarded the plaintiff $5,000,000.00 in damages, but the trial court subsequently signed a final judgment that reduced the award to $3,500,000.00.

FIELDS, J.

Edwards, J. concurs Miller, J concurs