ROBIN WEGENER WIFE OF AND HILDRITH WEGENER III v. LAFAYETTE INSURANCE COMPANY (2011)

While I agree with the Court's remand for a new trial and most of the majority's opinion, I dissent from the portion of the opinion holding that La. C.C. art.1998 does not apply in a claim for emotional distress/mental anguish damages under La. R.S. 22:1220.   In Sher v. Lafayette Insurance Co., 07-2441 (La.4/8/08), 988 So.2d 186, 202, we held that the plaintiff was not entitled to a jury instruction regarding general damages for mental anguish and emotional distress because plaintiff did not provide any evidence that would meet the requirements of La. C.C. art.1998, i.e., that Lafayette knew or should have known that failure to perform would cause mental anguish damages, or that Lafayette intended to aggrieve the feelings of the plaintiff.   Pursuant to Sher, the trial court's jury instruction relative to mental anguish damages, requiring proof of an intent to aggrieve the plaintiffs before such damages could be awarded, was proper and does not provide grounds for a new trial.

For the foregoing reasons, I dissent in part and concur in part.