## Facts

- On March 24, 1996, Lynne and Joseph Calcagno were injured when their vehicle was rear-ended on Power Boulevard in Metairie, Louisiana by a car owned and driven by Donald Gonzales, who was uninsured.
- The Calcagnos filed suit against their uninsured/underinsured motorist (UM) carrier, Progressive Insurance Company (Progressive), and later amended their petition to add Gonzales as a defendant.
- Before trial, Progressive made the following payments to the Calcagnos:
  - Progressive unconditionally tendered Lynne $27,000 and paid her $2,500 in medical-payments benefits.
  - Progressive unconditionally tendered Joseph $29,500 and paid him $2,500 in medical-payments benefits.
- The Calcagnos filed a motion in limine seeking to exclude any evidence of Progressive’s unconditional tenders and medical-payments benefits, arguing that telling the jury about those payments would bias the damages assessment.
- The trial court denied the motion and allowed the jury to hear evidence of Progressive’s payments during trial.
- The jury returned very small awards:
  - General damages: $500 to Lynne and $500 to Joseph.
  - Medical expenses: $1,038 to Lynne and $925 to Joseph.
- The Calcagnos appealed, arguing that admission of the payment evidence was improper and that the awards were unreasonably low. They also asked the appellate court to review damages anew and increase the awards.

## Issues

1. Whether the trial court erred by allowing the jury in a UM case to hear evidence that the UM carrier made pretrial unconditional tenders and paid medical-payments benefits to the plaintiffs.
2. Whether the jury’s damage awards were so low, in light of the record, that they amounted to an abuse of discretion requiring the appellate court to increase damages.

## Decision

- The Louisiana Fifth Circuit held that it was error to admit evidence of Progressive’s unconditional tenders and medical-payments benefits because the evidence carried a strong risk that jurors would reduce damages based on knowledge that the plaintiffs had already received payments.
- The court found the jury’s general-damage awards (and the related specials) to be abusively low when compared to the injuries and treatment shown by the record, including evidence of ongoing neck complaints and recommended treatment for Lynne.
- Because the erroneous evidence bore directly on the damages verdict and the record was sufficient to set damages, the court amended the judgment to increase the Calcagnos’ awards to amounts supported by the record.
- The judgment was reversed in part and amended; as amended, it was affirmed.

## Legal Principles

- A trial court’s evidentiary rulings are reviewed for error, and reversal is warranted when an evidentiary ruling likely affected the verdict.
- In a UM action, evidence that the UM carrier made unconditional tenders or paid medical-payments benefits before trial generally should not be presented to the jury as a basis for measuring tort damages, because it invites an improper offset in the jurors’ minds.
- Louisiana appellate review of general damages is highly deferential; a factfinder’s award may be changed only when it reflects an abuse of discretion.
- Once an abuse of discretion is found, the appellate court may amend the award to the lowest amount reasonably supported by the record (and may do so on the existing record when a remand is unnecessary).

## Conclusion

Calcagno v. Gonzales involved a rear-end collision caused by an uninsured driver, after which the injured insureds pursued UM benefits from Progressive. Progressive had made pretrial unconditional tenders and medical-payments to both plaintiffs, and the trial court allowed the jury to hear about those payments. The jury then awarded nominal general damages and small medical-expense amounts. The Fifth Circuit held the admission of the payment evidence was erroneous and prejudicial in a UM damages trial and concluded the resulting awards were abusively low, so it amended the judgment to increase damages to amounts supported by the record and affirmed the judgment as amended.


Calcagno v. Gonzales, 802 So. 2d 643 (1999)