             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                   FILED
                                                                                       July 28, 2009

                                             No. 07-31017                        Charles R. Fulbruge III
                                                                                         Clerk

SHAWN MILLER, etc

                                                  Plaintiff
v.

GORSKI WLADYSLAW ESTATE, Et Al

                                                  Defendants
------------------------------------------------------------------------------------------------------------

GUADALUPE GUERRA, individually and on the behalf of Cindy Guerra
Estate; AMELIA GUERRA; RENE GARZA, individually and on the behalf of
Jennifer Garza Estate; PATRICIA GARZA; JOSE ANGEL ALFARO, JR;
LISA GUERRA

                                                  Plaintiffs - Appellees-Cross-Appellants

        v.

ALLIED VAN LINES INC; ILLINOIS NATIONAL INSURANCE CO

                                                  Defendants - Appellants-Cross-Appellees




                      Appeal from the United States District Court
                         for the Western District of Louisiana
                                USDC No. 6:04-CV-1250


Before DAVIS, OWEN, and HAYNES, Circuit Judges.
                                       No. 07-31017

PER CURIAM:*
       The court has carefully reviewed this appeal in light of the briefs, oral
arguments, and pertinent parts of the record. Having done so, we find no
reversible error of law or fact and therefore AFFIRM for essentially the reasons
stated by the trial court as briefly explained below.
                                          I. Facts
       In 2003, an Allied Van Lines, Inc. eighteen-wheeler drove into the rear end
of a Suburban occupied by members of the Guerra and Garza families. Two
passengers, Cindy Guerra and Jennifer Garza, died in the accident after the
Suburban was engulfed in flames. Two others, Lisa Guerra and Joe Alfaro, were
horribly burned and will require intermittent hospitalization and medical care
for the rest of their lives. Guadalupe and Amelia Guerra were in the vehicle and
watched Cindy, their youngest daughter, die as the Suburban burned. They also
watched as Lisa, their eldest daughter, was severely burned. Nine other vehicles
were involved in the accident.
       The Guerra and Garza families filed this suit against Allied, which had
five layers of insurance totaling $110 million.              Appellant Illinois National
insured the fourth layer with $25 million coverage in excess of $30 million.
Before trial, Allied and insurers in the lower layers of coverage (the “Settling
Insurers”) paid several other claimants injured in the accident a total of
$6,477,900. Additionally, the Settling Insurers and the Plaintiffs in the present
case entered into a partial settlement agreement that released all liability
within the limits of the Settling Insurers’ policies in exchange for a payment of
$21 million. In effect, the Plaintiffs waived $2,522,100 in damages, which was
the difference between the settlement and the remaining limits of the Settling


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

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                                  No. 07-31017

Insurers’ policies. The Plaintiffs expressly reserved their right to a direct action
against the non-settling excess insurers, including Illinois National, for damages
exceeding the Settling Insurers’ policy limits under a doctrine of Louisiana
insurance law discussed in Gasquet v. Commercial Union Insurance Co., 391 So.
2d 466, 471-72 (La. Ct. App. 1980).
      A damages-only jury trial was conducted on the Guerra and Garza claims.
The jury returned a verdict in Plaintiffs’ favor in the aggregate amount of
$31,903,650, which included wrongful death damages and bystander awards.
In entering judgment, the district court considered the prior payments by the
Settling Insurers to determine Illinois National’s settlement credit. The district
court denied Illinois National’s various motions for remittur of some of the
damages. The company has not appealed the direct awards to Lisa Guerra and
Joe Alfaro.
                                 II. Discussion
A.    Settlement Credit
      The first issue raised by Illinois National is the proper calculation of the
settlement credit. Illinois National raises only questions of law concerning the
calculation of the settlement credit, which are reviewed de novo. See Davis v.
Odeco, Inc., 18 F.3d 1237, 1245 (5th Cir. 1994).
      Illinois National asserts that it was entitled to a settlement credit for the
full $30 million face value of the Settling Insurers’ policies, without considering
payments to other claimants by the Settling Insurers, based on language in
Gasquet stating that the excess insurer be given a “‘credit’ for the policy limits
of the primary insurer.”    Gasquet, 391 So. 2d at 471.       This is too rigid an
interpretation of Gasquet. Gasquet did not involve settlements or judgments
with other injured parties; thus the fact that Gasquet referred to the underlying
insurers’ “policy limits” rather than “available policy limits” is not dispositive.



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                                   No. 07-31017

      Including payments to other claimants in the calculation of the credit is
consistent with Illinois National’s excess insurance policy. Allied incurred at
least $38,381,550 in liability as a result of the accident, $31,903,650 in the form
of damages awarded to the Plaintiffs in the present case, and $6,477,900 paid by
the Settling Insurers to other claimants injured in the same accident. The trial
court gave a credit that reduced Illinois National’s liability to $8,381,550. As a
result, the judgment of the trial court did not require Illinois National to pay any
part of the first $30,000,000 of liability incurred by its insured. This is precisely
what Illinois National bargained for as an excess insurer.
      Illinois National also argues that the trial court erred in considering the
payments to other claimants because there is no evidence in the record that the
payments were “reasonable and in good faith.” The case relied on by Illinois
National actually supports the opposite conclusion. In Insurance Co. of North
America v. Binnings Construction Co., 288 So. 2d 359 (La. Ct. App. 1974), the
Louisiana Court of appeals held that an insurer “is entitled to a presumption of
law that it has exercised reasonableness and good faith in making the
settlements.” Id. at 362. Unlike Illinois National here, the insured in Binnings
successfully created a question of reasonableness concerning two of the 130
settlements by offering evidence that the injuries complained of in those two
settlements were insignificant compared to the settlement amounts.         The trial
court did not err in calculating the settlement credit in the present case.
B.    Guadalupe Guerra’s Bystander Claim
      Illinois National also challenges the sufficiency of the evidence supporting
the bystander claim of Guadalupe Guerra, arguing that Guadalupe does not
have sufficient recollection of the details of the accident to allow the jury to find
bystander damages. “[O]ur standard of review with respect to a jury verdict is
especially deferential. Therefore, judgment as a matter of law should only be
granted if the facts and inferences point so strongly and overwhelmingly in the

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                                         No. 07-31017

movant’s favor that reasonable jurors could not reach a contrary conclusion.”
Coffel v. Stryker Corp., 284 F.3d 625, 630 (5th Cir. 2002) (quotations and
citations omitted).
       Unlike the cases cited by Illinois National, where the plaintiffs had no
recollection of the events and there was no other evidence that the plaintiffs
were aware of the harm caused by the event as it occurred, there was sufficient
evidence here from which a jury could have concluded that Guadalupe was
aware of the tragedy as it unfolded. We find sufficient evidence to support the
jury’s verdict.
C.     Remittitur
       Illinois National also argues the trial court abused its discretion when it
refused to suggest a remittitur of a portion of the non-economic damages
awarded in this case.1 Under Louisiana law, 2 we must first decide whether the
trier of fact abused its “much discretion,” and only after concluding that it has
may we resort to prior awards for the purpose of determining the highest point
which is reasonably within that discretion. Bellard v. Am. Cent. Ins. Co., 980 So.
2d 654, 674 (La. 2008); see also Duncan v. Kan. City S. Ry. Co., 773 So. 2d 670,
682-83 (La. 2000); L A. C IV. C ODE art. 2324.1 (“In the assessment of damages in
case of offenses, quasi offenses, and quasi contracts, much discretion must be left
to the judge or jury.”).
       The damages awarded in the present case were large, but the
circumstances were extreme and the injuries suffered by Plaintiffs were severe.


       1
         Illinois National does not challenge the $21,403,650 awarded to Lisa Guerra and Jose
Alfaro, Jr.
       2
          “[I]n an action based on state law but tried in federal court by reason of diversity of
citizenship, a district court must apply a new trial or remittitur standard according to the
state’s law controlling jury awards for excessiveness or inadequacy, and appellate control of
the district courts ruling is limited to review for ‘abuse of discretion.’” Foradori v. Harris, 523
F.3d 477, 498 (5th Cir. 2008) (citation omitted); see also Gasperini v. Ctr. for Humanities, 518
U.S. 415, 434 (1996).

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                                  No. 07-31017

This case presents a classic jury question, and the district court deferred to the
jury’s determination. We conclude that the district court did not abuse its
discretion when it declined to suggest a remittitur.
D.    Prejudgment Interest
      Finally, Plaintiffs concede that the district court should be affirmed under
Toston v. Nat’l Union Fire Ins. Co., 942 So. 2d 1204 (La. Ct. App. 2006), which
controls their cross-appeal concerning the calculation of prejudgment interest.
                               III. Conclusion
      For the reasons discussed above, we AFFIRM.




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