author: 1, SULLIVAN, Judge.

text:
    Kenneth PERRY v. PERRY & SONS VAULT & GRAVE SERVICE.
    No. 2003-1519.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      Darrell R. Sims, Darrell R. Sims, LLC, Covington, LA, for Plaintiff/Appellee, Kenneth Perry. '
    Bradley J. Gadel, Bradley J. Gadel, APLC, Alexandria, LA, for Defendant/Appellant, Perry & Sons Vault & Grave Services, Inc.
    Deanne B. McCauley, Rabalais, Unland & Lorio, Covington, LA, for Defendants/Appellees, Scott Perry, Jr. Sanitation Services, Inc., Louisiana Commerce and Trade Association Self Insurers’ Fund.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges. '
   1, SULLIVAN, Judge.

On October 26, 2001, Kenneth Perry was injured as he drove to an auto parts store to pick up parts for a vehicle owned by Perry & Sons Vault & Grave Services, Inc. (Perry & Sons). He filed a claim for workers’ compensation benefits with Louisiana United Businesses Association Self-Insurers Fund (LUBA-SIF), Perry & Sons’ workers’ • compensation carrier. LUBA-SIF began paying him indemnity and medical benefits upon receiving notice of his claim but terminated those benefits when it received a sworn statement in which Kenneth stated that his wages were paid by Scott E. Perry, Jr. Sanitation Services, Inc. (Sanitation Services). After LUBA-SIF terminated his benefits, Kenneth filed a disputed claim against Perry & Sons, LUBA-SIF, Sanitation Services, and its workers’ compensation carrier, Louisiana Commerce and Trade Association Self-Insurers Fund. (LCTA-SIF), asserting that he is entitled to workers’ compensation benefits from both Perry & Sons and Sanitation Services. The workers’ compensation judge (WCJ) determined that Kenneth' was an employee of Perry & Sons at the time he was injured and awarded him indemnity and medical benefits and $5,000.00 in attorney fees against LUBA-SIF. Perry & Sons and LUBA-SIF appeal. We reverse in part, amend, and affirm as amended.

Facts

•Scott Perry,- Jr. incorporated Sanitation Services approximately forty-five years ago. The corporation provides residential and commercial waste pickup services. Kenneth is Mr. Perry’s son. He began working for the corporation in approximately 1983. He drives a twenty cubic ton garbage truck five days a week. He also performs light mechanic work on the vehicles owned by Sanitation Services. He explained that Sanitation Service employees report mechanical problems with Sanitation Services’ ^vehicles to him. He checks out the complaints and makes the repairs he is capable of performing, and any repairs he cannot perform are performed by third parties.

Mr. Perry incorporated Perry & Sons approximately ten years ago. Kenneth also performs services for Perry & Sons, which include driving a truck, light maintenance on Perry & Sons’ vehicles, opening graves, and placing vaults in the ground. He performs these services only after he has completed his work for Sanitation Services or on weekends. Kenneth estimated that he spends approximately 70% of his work time performing services for Sanitation Services and 30% of his time performing services for Perry & Sons. He is paid wages by Sanitation Services only.

Mr. Perry testified that he is the “quarterback” of these two corporations and that he directs the activities of both corporations and their employees. Mr. Perry further testified that Kenneth’s job description primarily involves Sanitation Services, but includes doing anything else that he tells him to do, whether it is for Perry & Sons or Sanitation Services. Mr. Perry testified that he believes he has the discretion to instruct his employees what work to perform regardless of which company pays their salary.

The WCJ held that Kenneth is an employee of Perry & Sons. Additionally, the WCJ found that LUBA-SIF was arbitrary and capricious in . terminating Kenneth’s benefits because it judicially admitted that Perry & Sons was his employer in a petition of intervention, which it filed in Kenneth’s lawsuit for personal injuries against the driver of the automobile that hit him and caused his injuries.

laStandard of Review

On appeal, the WCJ’s findings of fact cannot be reversed unless they are manifestly erroneous. If the review on appeal reveals a reversible error of law, a de novo review of the record must be conducted. Jackson v. Iberia Parish Gov’t, 01-925 (La.App. 3 Cir. 3/20/02), 813 So.2d 589, writ denied, 02-1075 (La.6/14/02), 817 So.2d 1159, citing Rosell v. ESCO, 549 So.2d 840 (La.1989).

Motion to Dismiss Appeal

Kenneth filed a motion to dismiss this appeal on the basis that LUBA-SIF judicially admitted that it was his employer when it intervened in his personal injury suit. The following allegations in LUBA-SIF’s petition of intervention are the basis of Kenneth’s motion to dismiss this appeal:

4.
Intervenor shows that on or about October 26, 2001, Kenneth Perry received injuries while performing duties within the course and scope of his employment.
5.
As a result of the accident and injuries alleged therein by the original plaintiff, KENNETH PERRY has made a claim under the Workers’ Compensation Act against your intervenor.
6.
Pursuant to law and the claim made by KENNETH PERRY, your interve-nor has paid to and on behalf of KENNETH PERRY indemnity benefits and medical benefits.

“A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.” La.Civ. Code art. 1853. For a statement to be a judicial confession, it must expressly acknowledge an adverse fact. Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). See also Broussard v. Leger, 624 So.2d 1304 (La.App. 3 Cir.1993), writ denied, 93-2762 (La.1/7/94), 631 So.2d 452.

LUBA-SIF’s allegations in its petition of intervention do not admit the correctness of a fact alleged against it. The allegations do admit that Kenneth was in the course and scope of his employment when he was injured, but, they do not admit that he was an employee of Perry & Sons. Thus, they are not a judicial admission. Accordingly, we deny the motion to dismiss and reverse the WCJ’s finding that LUBA-SIF judicially admitted that Kenneth was injured in the course and scope of employment with Perry & Sons.

Discussion

Is Kenneth an employee of Perry & Sons?

In their first assignment of error, Perry & Sons and LUBA-SIF argue that Kenneth was not an employee of Perry & Sons, nor was he a borrowed servant of Sanitation Services. Kenneth asserts that Sanitation Services and Perry & Sons are joint employers. The WCJ rejected this contention. Sanitation Services contends that the WCJ’s determination is correct.

The WCJ determined that Kenneth was an employee of Perry & Sons at the time of his accident and that he was not a borrowed servant of Sanitation Services. The WCJ determined that Kenneth was a Perry & Sons employee even though he was never paid a salary by this corporation. This determination was predicated on cases where there was no “economic relationship” between the alleged employee and employer.

“As a general rule for an employer-employee relationship to exist, there must be a contract of employment, either expressed or implied, whereby services are | r,furnished in anticipation of compensation.” Deville v. Pugh, 490 So.2d 800, 802 (La.App. 3 Cir.1986). While exceptions to this general rule have been recognized, the cases cited by the WCJ in support of his conclusion reflect that the exceptions have been in the context of vicarious liability to third parties. For example, in Avery v. Commercial Union Insurance Co., 621 So.2d 184 (La.App. 3 Cir.1993), the defendant’s brother and former employee was performing a favor for the defendant by cleaning the property around the defendant’s business. In doing so, he started a fire to burn trash which spread out of control. Smoke from the fire obscured the vision of drivers on the adjacent highway, causing an accident. The brother was found to be a servant for whose actions the defendant was vicariously liable. In Whittington v. Sowela Technical Institute, 438 So.2d 236 (La.App. 3 Cir.), writs denied, 443 So.2d. 591, 592 (La.1983), a class of nursing students was being driven by a fellow student nurse on a field trip when an accident occurred, killing the plaintiffs’ wife and mother. The trip was not required by the institute, but the students would receive additional credit if they attended. The institute designated the date, time, and driver and provided transportation and supervision for the trip. The student driver was found to be the institute’s servant, and the institute was found vicariously liable for her negligence.

The WCJ also cited Whetstone v. Dixon, 616 So.2d 764 (La.App. 1 Cir.), writs denied, 623 So.2d 1333 (La.1993), in support of his determination that Kenneth was an employee of Perry & Sons. In Whetstone, a volunteer deacon caused an automobile accident while on a mission for the church. The deacon’s relationship with the church was ongoing. In finding the deacon an employee of the church, the court relied upon jurisprudence which specifically addressed the relationships of | ¿religious and charitable organizations with their volunteers, see Doe v. Roman Catholic Church, 602 So.2d 129 (La.App. 4 Cir.1992), vacated and remanded, 606 So.2d 524 (La.1992), on remand, 615 So.2d 410 (La.App. 4 Cir.1993), and the fact that the church had no paid employees.

The WCJ also cited Deville, 490 So.2d 800, in support of his conclusion that Perry & Sons is Kenneth’s employer. However, the court in Deville rejected the plaintiffs contention that he was an employee and owed wages, specifically, because he was not paid a salary by the defendant.

None of the ca^es cited by the WCJ were determined on the basis of a claimant’s status as an employee for purposes of entitlement to workers’ compensation benefits. Our review of the jurisprudence reveals that, in the context of claims for workers’ compensation benefits, lack of compensation has been an important factor in determining that an employer-employee relationship did not exist. In Trunk v. Medical Center of Louisiana, 03-275 (La.App. 4 Cir. 12/17/03), 863 So.2d 675, the plaintiff, a medical student at Louisiana State University (LSU), sought damages for injuries she suffered as a result of a slip and fall at the Medical Center. The court determined she was not an employee of LSU and, hence, not a borrowed employee of the Medical Center because she was not paid for her services. In Jordan v. Central Management Co., 99-748 (La.App. 3 Cir. 10/13/99), 745 So.2d 116, writ denied, 99-3231 (La.1/14/00), 753 So.2d 220, the claimant, a licensed practical nurse on staff with the defendant, was injured while performing hairdressing services for a resident of the defendant’s nursing home. This court determined she |7was not the defendant’s employee at the time she was injured because she was paid by residents, not the defendant, for her hairdressing services. In another student setting, the plaintiff was a student at a commercial school which specialized in training medical support personnel. While in training at a hospital, the plaintiff was instructed to assist restraining a patient who was infected with HIV and suffered from AIDS. As a result, the student contracted HIV, and he filed suit against the school and hospital to recover damages. The court found the student did not render services “in anticipation of compensation” and was not an employee of the school or a borrowed employee of the hospital. Dustin v. DHCI Home Health Servs., Inc., 95-1989 (La.App. 1 Cir. 5/10/96), 673 So.2d 356. In Genusa v. Pointe Coupee Volunteer Fire District No. I, 93-2214 (La.App 1 Cir. 10/7/94), 644 So.2d 851, the claimant, a volunteer fireman, injured his back while attempting to repair a fire truck. The WCJ denied benefits, citing the fact that the claimant was not compensated. On appeal, the claimant argued that “the essence of the employment relationship is not based upon remuneration, but upon the right of control.” Id. at 852. Citing the general rule that for an employer-employee relationship to exist there must compensation, the court of appeal rejected the argument.

Our consideration of this issue leads us to the conclusion that the WCJ committed an error of law in his analysis of Kenneth’s relationship with Perry & Sons and that, because Kenneth was not paid wages by Perry & Sons, he was not an employee of the company. We reverse this finding of the WCJ.

Is Kenneth a borrowed servant of Perry & Sons?

The WCJ rejected Kenneth’s contention that he was Perry & Sons’ borrowed servant at the time of his injury. On appeal, Perry & Sons and LUBA-SIF argue |sKenneth was not a Perry and Sons employee; Sanitation Services and LCTA-SIF argue he was not a Sanitation Services employee; and they all contend he was not Perry & Sons’ borrowed employee at the time of his injury. For the following reasons, we find the WCJ’s determination of this issue clearly wrong.

The factors to be considered when determining whether an employee is a borrowed servant are: (1) who has the right of control over the employee beyond the mere suggestion of details or cooperation; (2) who selected the employee; (3) who paid the employee’s wages; (4) who had the right to fire the employee; (5) who furnished the tools and the place to perform the work; (6) was the new employment over a considerablé length of time; (7) whose work was being done at the time of the accident; (8) was there an agreement between the borrowing and lending employers; (9) did the employee acquiesce in the new work situation; and (10) did the original employer terminate his relationship with or relinquish his control over the employee. Green v. Popeye’s Inc., 619 So.2d 69 (La.App. 3 Cir.1993).

No single factor is decisive, and no fixed test is used to determine the existence of a borrowed servant relationship. Trunk, 863 So.2d 675. However, there is a presumption that the general employer retains control of his employee, and the party who alleges that an employee has become a borrowed servant bears the burden of proving that issue by a preponderance of the evidence. Harrington v. Hebert, 00-1548 (La.App. 3 Cir. 5/23/01), 789 So.2d 649.

|sThe evidence established that Mr. Perry wears two hats: one as head of Perry & Sons and one as head of Sanitation Services. He controls the employees of both corporations and has the right to fire any employee of either corporation at any time. Kenneth worked twenty years for Sanitation Services, which paid his wages. Since Perry & Sons’ inception, he has performed services for the corporation and was performing services for Perry & Sons when he was injured. Sanitation Services and Perry & Sons maintain separate equipment. Because Mr. Pérry owned and operated both corporations and directed his employees, including his sons, to perform work for both corporations, we find there was an implicit agreement between Perry & Sons and Sanitation Services to exchange the services -of employees of both corporations between the two corporations as determined solely by Mr. Perry. Kenneth clearly acquiesced to this arrangement.

The last factor of the borrowed servant analysis, “did the original employer terminate his relationship with or relinquish his control over the employee,” was an important factor in the WCJ’s determination:

The evidence does, not show that Mr. Scott Perry ever terminated his relationship with Mr. Kenneth Perry with respect to his employment through the sanitation company. The employment may have been over a considerable period of time. Certainly Mr. Scott Perry retained a right to discharge Mr. Kenneth Perry if he had so chosen to do and the Sanitation Services company maintained the obligation to pay Mr. Kenneth Perry.
Because there is no clear showing of a termination of the relationship between •Mr. Scott Perry as the employer for Sanitation Services and Mr. Scott Perry as the employer for the Perry, and Sons Vault company, because Sanitation Services maintained the right — the obligation to pay Mr. Kenneth Perry because there is no accounting between the two companies to assess the time that Mr. Kenneth performed work for the Perry and Sons Vault company being charged back against the sanitation company, the Court finds that this is not a case of a borrowed servant.

| min Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958), the supreme court was presented with a similar situation. N.P. Martone managed a ranch owned by a partnership which consisted of his wife and mother-in-law. Independently, he conducted rice farming operations. The ranch employed ranch hands who Martone used in his rice farming operations when needed. The ranch hands were paid by the ranch and overseen by Martone whether they were performing ranching operations or farming operations. Two of the ranch hands were electrocuted when performing farming duties for Martone’s farming operations. The supreme court considered the relationship of Martone in both of his capacities to the employees and determined that the ranch hands were borrowed servants of his rice farming operation when they died, explaining:

They were paid by Bon-Air Ranch, but the evidence clearly shows that the method of payment was by the custom of the particular vicinity in which the deceased worked. The general employer continued to pay his employees’ salaries when they were loaned to rice farmers, because he, likewise, borrowed servants from the rice farmers during their slack seasons, and these servants’ salaries were paid by their general employers. Mr. N.P. Martone, as manager of his rice farming business, had direct control over the deceased. Their hours, duties, and method of work were controlled by him. There is no doubt that he could have discharged the deceased had they not worked in an obedient and satisfactory manner. It is an extraneous circumstance that he could have also discharged them when he was acting as Manager of Bon-Air Ranch. The deceased employees were aware of the custom of swapping employees, and they knew that they were working as farmers and not as ‘cowboys’.

Id. at 901-02 (emphasis added).

We find the supreme court’s analysis in Humphreys applicable to Mr. Perry as the owner and operator of Perry & Sons and Sanitation Services. Mr. Perry’s testimony was clear that he controlled the duties and work of the employees of both corporations and that he would fire anyone who failed to do as told. As inj¿¡Humphreys, we find it “extraneous” that he could fire Kenneth when acting as owner of Sanitation Services because the evidence establishes that he could also fire him as the owner of Perry & Sons. Additionally, as the owner of both corporations, Mr. Perry was not concerned about an accounting between the two corporations for services provided to each corporation by employees of its sister corporation. His primary concern was seeing that the work got done. Accordingly, we conclude that Kenneth was an employee of Sanitation Services and Perry & Sons’ borrowed employee at the time of his injury.

Perry & Sons and LUBA-SIF cite the case of Wise v. Employers Mutual Liability Insurance Co. of Wisconsin, 224 So.2d 33 (La.App. 1 Cir.), writ denied, 254 La. 776, 226 So.2d 769 (1969), in support of their position that Kenneth was not Perry & Sons’ borrowed employee. In Wise, the claimant was employed by Superior Casing Crews, Inc. His employment included driving heavy trucks and handling heavy equipment. While on call, he was contacted by his foreman and instructed to report to Superior Testers, Inc. and help load two heavy testing units on the truck. The employee completed the task and delivered the units as required. The claimant was again contacted later that day and instructed to report to Superior Casing Crews, Inc.’s site to load another piece of Superior Testers, Inc.’s equipment and deliver it. He was injured when loading the unit on his truck.

Superior Casing Crews, Inc. contended that the claimant was Superior Testers, Inc.’s borrowed employee when he was injured. It pointed to the fact that the claimant was paid by Superior Testers, Inc. on that occasion. The court of appeal affirmed the trial court’s determination that the claimant employee was in the course and scope of his employment with Superior Casing Crews, Inc. at the time of his 11 ¡¡injury, noting that Superior Testers, Inc. had never before paid claimant for his services and that Superior Testers, Inc.’s equipment was being loaded onto the Superior Casing Crews, Inc. truck for it to be delivered by the claimant who was a truck driver for • Superior Casing Crews, Inc. This was apparently the type of work Superior Casing Crews, Inc. provided to all of its customers, not just Superior Testers, Inc., so the claimant was performing the same work he performed for Superior Casing Crews, Inc. That is not the situation here. Furthermore, the claimant had provided the same services to Superi- or Testers, Inc. but had never been paid by Superior Testers, Inc. previously. More importantly, we note that while both corporations in Wise were incorporated by the same person, the court’s discussion indicates that the corporations were operated independently of each other and that the incorporator did not personally control the employees as Mr. Perry does.-

All of the defendants argue that Kenneth provided services to Perry & Sons gratuitously as a result of his love and affection for his father because Kenneth was not paid separately by that corporation. ' As discussed above, Mr. Perry operated both corporations as he saw fit, instructing his employees to do whatever work needed to be done, regardless of which corporation paid their salaries and which corporation’s work was being performed. We find no merit in this argument.

Kenneth asserts that his employment with Sanitation Services and Perry & Sons was a joint employment. The WCJ held this is not a case of a joint employer relationship because the two activities of the companies were distinct and separate from each other. We find no error with this conclusion.

Joint employment requires a “common enterprise that contemplates the employment and control of the claimant by one of the interested parties for the benefit 113of all.” Kahl v. Baudoin, 449 So.2d 1334, 1336 (La.1984), quoting Babineaux v. Southeastern Drilling Corp., 170 So.2d 518 at 529 (La.App. 3 Cir.1965), writs denied, 247 La. 613, 614, 172 So.2d 700, appeal dismissed, 382 U.S.16, 86 S.Ct. 67, 15 L.Ed.2d 12. Even though Perry & Sons and Sanitation Services are owned and operated by the same individual, they are not common, enterprises. Each corporation provides different services which are not dependent upon, related to, or complementary of the services provided by the other corporation.

A general employer and a borrowing special employer are solidarity liable for workers’ compensation -benefits. La.R.S. 23:1031(C). Therefore, Perry & Sons and LUBA-SIF are solidarity liable with Sanitation Services and LCTA-SIF for Kenneth’s workers’ compensation benefits. However, we cannot render judgment in Kenneth’s favor against Sanitation Services and LCTA-SIF because he did not appeal the WCJ’s judgment dismissing his claims against them and that judgment is now final. This situation is addressed by La.R.S. 23:1031(C) which provides that Perry & Sons has the right to seek contribution for payments made on behalf of Kenneth from Sanitation Services and LCTA-SIF, unless they contracted for a specific method of contribution.

Attorney Fees

The basis of the WCJ’s $5,000.00 award of attorney fees is his conclusion that LUBA-SIF made a “judicial admission” that Kenneth was employed by Perry & Sons. As previously discussed, LUBA-SIF did not make a judicial admission in its petition of intervention that Perry & Sons was Kenneth’s employer. Accordingly, the award of attorney fees on this basis was error. However, LUBA-SIF’s actions do warrant the imposition of attorney fees under La.R.S. 23:1201.2. In J.E. Merit Constructors, Inc. v. Hickman, 00-943, p. 5 (La.1/17/01), 776 So.2d 435, 437-38 (footnote omitted), the supreme court discussed the appropriateness of an award for attorney fees when workers’ compensation benefits were discontinued:

Under La. R.S. 23:1201.2, reasonable attorney’s fees are awarded as a penalty under the workers’ compensation law when an employer discontinues payment of benefits, “when such discontinuance is found to be arbitrary, capricious, or without probable cause.” Arbitrary and capricious behavior is willful and unreasonable action, without consideration and regard for the facts and circumstances presented. Williams v. Rush Masonry, Inc., 98-2271, p. 8 (La.6/29/99), 737 So.2d 41, 45-6. An award of attorney’s fees in a workers’ compensation case is essentially penal in nature, as it is intended to discourage indifference and undesirable conduct by employers and insurers. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382 (citations omitted). Attorney’s fees should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. Id.

This is not a doubtful case. There was no question that Kenneth was entitled to workers’ compensation benefits. The only question was which insurance company, if not both, was obligated to pay those benefits. LUBA-SIF knew that, if it had paid the benefits and was found not to be Kenneth’s employer, it had recourse against LCTA-SIF to recoup the amounts paid. Additionally, it could have entered into an agreement with LCTA-SIF regarding Kenneth’s benefits, as both were potentially solidarily liable for the payment of those benefits. Instead, Kenneth was arbitrarily allowed to suffer without benefits or medical treatment, and the burden was placed upon him to file suit to establish the liability of the two insurance companies. Accordingly, we find LUBA-SIF’s discontinuance of Kenneth’s benefits was arbitrary, capricious, and without probable cause. The award of attorney fees is affirmed.

| isPenalties

Kenneth urges that the WCJ erred in not awarding him penalties for the termination of his benefits. Perry & Sons did not appeal this issue, and Kenneth did not file an answer to complain of the denial of penalties. Therefore, this issue is not before us. La.Code Civ.P. art. 2133.

Disposition

For the foregoing reasons, the WCJ’s judgment is reversed with regard to the determinations that LUBA-SIF judicially admitted that Kenneth Perry was injured in the course and scope of his employment with Perry & Sons Vault & Grave Services, Inc. and that Kenneth Perry was not an employee of Perry & Sons Vault & Grave Services, Inc.; the judgment is amended to provide that Perry & Sons Vault & Grave Services, Inc. was the borrowing employer of Kenneth Perry at the time of his injury and is liable to him for compensation benefits. The judgment’s award of attorney fees is affirmed.

REVERSED IN PART, AMENDED, AND AFFIRMED AS AMENDED.

      . The supreme court's reversal of the fourth circuit’s opinion was a reversal of that court's remand to the trial court for a new trial. It was not a reversal of the court's determination of the legal issues addressed therein.

      . Sanitation Services and LCTA-SIF contend the issue of borrowed servant is not before this court because Kenneth did not file an answer to Perry & Sons’ and LUBA-SIF's appeal. The WCJ granted Kenneth relief on one of the grounds asserted in his claim. Pursuant to La.Code Civ.P. art. 2133, he was not required to answer the appeal if he did not seek to have the judgment modified, revised, or reversed on this issue. Perry & Sons’ appeal put his employer-employee relationship at issue. Diefenthal v. Longue Vue Mgmt. Corp., 561 So.2d 44 (La.1990).


source: Caselaw Access Project

author: hGREMILLION, Judge.

license: Public Domain

text:
    Alexis Davey TAYLOR v. ALLSTATE INSURANCE CO.
    No. 2003-1273.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      Charles Brandt, Lafayette, LA, for Plaintiff/Appellant, Alexis Davey Taylor.
    C. Shannon Hardy, Penny & Hardy, Lafayette, LA, for DefendanVAppellee, Allstate Insurance Co.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

The plaintiff, Alexis D. Taylor, appeals the jury’s damage award and factual findings, and the trial court’s exclusion of evidence in favor of the defendant, Allstate Insurance Company. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This suit arises out of a motor vehicle accident that occurred in Iberia Parish, Louisiana, in August 1995. Taylor, who was sixteen years old at the time of the accident, settled with the other driver for the policy limits of $10,000, and liability is not at issue. In August 1997, she filed suit against her under-insured motorist policy carrier, Allstate, alleging that it was indebted to her for injuries resulting from the accident. A jury trial was held in October 2002. The jury made the following awards:

a) Past and future pain and suffering $ 50,000
b) Past and future mental anguish $ 0
e)Loss of enjoyment of life $ 0
d) Permanent disability $ 0
e) Future lost wages $ 0
f) Past medical expenses $ 40,640.71
g) Future medical expenses $ 0

Taylor now appeals.

ISSUES

Taylor assigns as error:

1. The jury’s damage award.
[a2. The jury’s failure to find that Allstate was arbitrary, capricious, and without probable cause in making its tenders.
3. The trial court’s exclusion of evidence which was legally admissible and highly probative to her case.

DAMAGES

Taylor urges that the jury erred in awarding her only $50,000 in past and future pain and suffering and in failing to award her damages for past and future mental anguish, loss of enjoyment of life, permanent disability, and future medical expenses.

General Damages

General damages include an award for the victim’s pain and suffering, and, as such, are intrinsically speculative and not subject to mathematical certainty. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. We review the jury’s general damage award using the abuse of discretion standard set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The jury is afforded much discretion in independently assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829 (La.1991). The award should be based on the facts and circumstances of the particular case. Id. Only if we find that the jury abused its discretion, may we lower or raise the award and resort to prior awards to the extent that is reasonably within our discretion. Id.

Dr. Francis Morvant, a chiropractor, first saw Taylor following the accident on September 13, 1995. She réported headaches, neck, lower back, shoulder, and wrist pain, and pins and needles and numbness in her arms. She treated [¡¡with him through February 1996, and reported the same types of problems at each visit. Dr. Morvant diagnosed her with a cervical sprain/strain, muscle spasms, ligament laxity, and tension headaches. He stated that he did not think Taylor was exaggerating her symptoms. Dr. Morvant did state that he had seen Taylor prior to the accident when she came in for maintenance adjustments at Pinhook Chiropractic where her father was employed as a business manager. On cross-examination, however, Allstate’s counsel questioned him as to records indicating that Taylor had been treated at Pinhook for low back pain, neck pain, and headaches from January 1994, through December 1994, for an accident occurring in April 1993. Dr. Morvant did not recall those events and explained that someone else in the office may have treated her for that, but that he believed her visits were just well-care and preventative in nature. However, Pinhook medical records indicate that Taylor was seen throughout 1994, and the diagnosis was for an accident in April 1993. Further, records from range-of-motion tests prior to the August 1995 accident and post-accident were the same. Left rotation and right lateral flexion in the cervical motion part of the range of motion test were improved post-accident.

Dr. David Warren, a dentist, testified that he routinely treats temporomandibu-lar joint dysfunction (TMD) in his practice. He explained that, in TMJ dysfunctions, the joints and discs are not working properly and that there is usually muscle spasm that causes the patient pain. Dr. Warren testified that he first saw Taylor on March 1, 1996, and treated her through October 8, 1996. He stated that she had numerous complaints of pain resulting from the accident. He diagnosed her as having TMD and concluded that her jaw was not opening straight after | conducting several tests. He also noted subjective popping in that joint. Dr. Warren opined that the accident had caused the ensuing TMJ problems including an elongation and tearing of the ligaments. He treated Taylor with a splint to wear during the day as well as a different one to wear at night and described having to wear' them as “tolerable” in order to get relief from the pain. Dr. Warren also testified that some of Taylor’s baby teeth had to be removed and that he had to refer her to an oral surgeon to remove the remaining roots. He stated that Taylor should have naturally lost the teeth by that point, but since she had not, he probably would have had to remove them anyway. But, Dr. Warren stated they need to be removed in order to move forward with the splint therapy. He also referred Taylor to Valerie LeBas of Rehabilitation Associates of Lafayette for physical therapy, explaining that sore back muscles also contribute to TMJ problems. By early October, Dr. Warren testified that Taylor’s neck and shoulder pain had decreased by eight percent, the clicking, snapping, and popping in her jaw had ceased, and her headaches had decreased by ninety percent.

Dr. Warren also referred Taylor to Drs. Guidry and Harkins for the placement of braces, to aid in her pain relief by positioning the teeth in a more comfortable position. However, Dr. Warren stated TMJ problems are usually “for life” and that he believed she would need future medical treatment for this disorder. However, he had no idea what the costs of her future medical treatment might be.

On cross-examination, Dr. Warren testified that his records indicated that Taylor opened her jaw to thirty-eight millimeters, which he found to be within normal limits. He also testified that Taylor stated that she did not have any problems prior |fito the accident. However, he did not ask detailed questions regarding whether she clenched her jaw. He further testified that, at the May 2,1996 appointment, Taylor reported that she had no headaches or popping in her jaw as long as she wore her splint, but that she had lost it. Records dated June 17, 1996, indicate that Taylor reported no headaches, decreased neck and shoulder pain, and no clicking, popping, or snapping on her right side. The same indications were made at appointments on the following dates: June 27, 1996, July 1996, August 5, 8, and 15, 1996, September 10, 1996, and October 8, 1996.

Dr. Warren testified that stress is a significant contributing factor with TMJ problems. He further stated that he agreed with the studies that indicate that anywhere from forty to sixty percent of the population has signs of TMJ dysfunction. Finally, he testified that he felt Taylor’s TMJ problems were caused by the accident and not by stress.

Dr. Hendry, Taylor’s lifelong dentist, in a letter sent to Dr. Warren, stated that Taylor had been a patient in his practice since November 1985, and that she had neither been diagnosed nor reported having TMJ problems.

Dr. H.A. McConnell, an oral and maxil-lofacial surgeon, first saw Taylor on May 21, 1996, on referral from Dr. Warren to completely remove two baby teeth. In June 1998, Dr. McConnell removed two more baby teeth and surgically exposed the two impacted cuspids and attached chains and brackets in order for her orthodontist to move the teeth down via braces. In May 2000, Taylor’s wisdom teeth were removed, which required her jaw to be propped open while under sedation. In June 2000, at the request of Dr. Kirby Guidry, the two cuspids were re-exposed and | (¡new brackets attached. Dr. McConnell stated that the impacted baby teeth and the impacted wisdom teeth had nothing to do with the accident..

Dr. John Humphries, an orthopedic surgeon, currently in practice as an orthopedist, testified that he examined Taylor on June 10, 1996, and conducted an examination of her that revealed tenderness in her neck, poor neck motion, and tenderness in her lower back. He testified that x-rays revealed plate abnormalities at C4, C5, and C7, however, he stated they were probably developmental in nature. He did not see fractures, healed fractures, or dislocations. He determined that the neck injury was a sprain or a stretch of the muscles and ligaments and that the headaches were compatible with post-traumatic headache disorder. Dr. Humphries also stated that Taylor had lumbar strain in her lower back. At her July 23, 1996 visit, Taylor reported clicking and popping in her jaw, pain from her neck that radiated to her left forearm, and back pain. On September 10, 1996, she related having severe neck pain for the two days prior to the appointment. MRI results from tests conducted in the interim between the July and September visits came back normal, however, Dr. Humphries stated that, with sprain and strain type injuries, the scans often come back normal. Taylor’s next visit was on October 22, 1996, at which time she reported improvement in her back, but continued neck pain, numbness in her left arm, and jaw pain. Dr. Hum-phries noted no spasm in her neck, stating that involuntary muscle spasm is not a common physical abnormality. Taylor returned on August 20, 2002, at which point Dr. Humphries scheduled another MRI. The August 28, 2002 MRI was unremarkable revealing no traumatic injury. Dr. Humphries stated that the most likely cause of Taylor’s neck and back problems were chronic sprain and' strain | injuries. Dr. Humphries also stated that he did not feel she was exaggerating her symptoms. Taylor reported no previous injuries or treatment to her neck and back area.

Dr. Iley Harkins, Jr., D.D.S., an orthodontist, first saw Taylor on June 20, 1997, on referral by Dr. Warren. Dr. Harkins stated that, when he met Taylor, she denied being in pain, but that his clinical examination of her revealed extreme hyperactivity (muscle spasms) in the musculature surrounding her neck, head, upper back, posterior and anterior neck muscles, and deep, and superficial muscles. He testified that he put braces on Taylor’s upper teeth on September 22, 1997. By December 21, 1998, Dr. Harkins noted in his records some slow movement of Taylor’s teeth. At a February 23, 1998 visit, x-rays were taken to see how her teeth were moving. Dr. Harkins noted that Taylor reported having pain in the areas of the muscles that supported her head, neck, and upper back and her temporomandibu-lar joint. Dr. Harkins testified that the last time he saw Taylor was in late July 1999. He stated that she then began treating with his partner, Dr. Guidry. Dr. Harkins testified that the long arduous process was really wearing on Taylor and she was bothered by how long it was taking. Dr. Harkins testified that he did not feel that she was exaggerating her complaints of pain and that her complaints were substantiated by objectively measured muscle spasms. He also stated that he believed Taylor would continue experiencing these same sorts of problems in the future as the sort of damage she experienced is not reversible. Dr. Harkins testified that the removal of the baby teeth and movement of the cuspids, were not necessary, but for the accident. Dr. Harkins stated that the primary reason for the orthodontic work was so that Taylor Iswould not have to wear splints for the rest of her life.

Dr. James Pierce, a specialist in temporomandibular joint dysfunctions, testified that one of the symptoms of TMD is headaches and referred pain into the neck and back, which can exacerbate the TMJ discomfort. Dr. Pierce testified that he first saw Taylor on August 9, 1999, at which time she complained of jaw pain, headaches, and neck pain that radiated into her shoulders. She also complained of sensitive teeth and dizziness, discomfort when chewing and opening her jaw, popping in her jaw, and clenching and grinding her teeth during the night. Dr. Pierce conducted an EMG scan on Taylor, which measures hyperactivity (spasm) in muscles. He stated that the scan indicated she was having spasms in her neck and shoulders. Dr. Pierce also testified that he could hear her jaw popping. He stated that Taylor had a displaced disc in both of her jaw joints causing her joints to stay inflamed. This, in turn, caused her jaw muscles to spasm which led to headaches and facial or jaw pain. Dr. Pierce recommended that she have her four impacted wisdom teeth removed and that she resume wearing a splint in addition to the braces.

Dr. Pierce testified that most TMJ disorders can be managed with conservative treatment. He made a splint for Taylor, prescribed anti-inflammatory and muscle-relaxing medications, and ordered physical therapy. Dr. Pierce stated, that based on the history provided by Taylor, the accident was more likely than not, the cause of her current problems. Dr. Pierce last saw Taylor on August 29, 2001, at which time she rated her pain level at a seven on a scale of one to ten, with ten being the most discomfort. Dr. Pierce also agreed that a significant portion of the population, between forty and sixty percent, exhibit some signs of TMJ. He further | fltestified that micro traumas, such as clenching and/or grinding the teeth (bruxism), can lead to TMJ disorders. Dr. Pierce stated that bruxism and stress are significant factors in TMJ disorders. In fact, he testified that he believed stress was the number one factor contributing to TMJ dysfunction. He also testified that Taylor missed numerous scheduled appointments, which hindered her progress because she was not able to receive adjustments on her splint. He also testified that she did not go to physical therapy, which was another factor hindering her progress.

Dr. John Martin, a specialist in pain management, first saw Taylor on September 11, 2000, at which time she complained of pain in her jaw, neck, lower back, and hip. Dr. Martin examined Taylor and found that she had tenderness over the jaw structures, particularly on the right side over the temporomandibular joint. He diagnosed her with myofascial pain syndrome, myofascial meaning the involved area of the body is muscle, and temporomandibular joint arthritis. He also testified that he believed Taylor’s complaints were legitimate and that she was not magnifying them. Dr. Martin prescribed anti-inflammatory medications. At this visit, Taylor indicated her pain level was a five on a scale of one to ten. Dr. Martin next saw Taylor on March 7, 2000, at which time he noticed clicking in both temporomandibular joints and spasm in her jaw. He increased the anti-inflammatory medication to the maximum daily dosage. Her pain level remained the same. At the next visit on March 22, 2001, Taylor indicated that her pain level had increased to a seven. Her next appointment was on August 22,2001, and she reported severe facial and jaw pain and stated that she had not slept for four days. She graded her pain at a nine out of a ten. Dr. Martin prescribed a different stronger muscle relaxant. 11 nTaylor’s next appointment was on October 16, 2001, and she stated that she was still experiencing insomnia and mild tenderness over both TMJ joints. At her next visit on February 14, 2002, Taylor complained of neck and face pain and reported being in motor vehicle accidents on December 22, 2001, and on January 24, 2002. Taylor graded her pain at a six that day. Her next appointment was on May 6, 2002, and she was having severe TMJ pain; surgery was scheduled at Oeshner with Dr. P.J. Walters, an oral maxillofacial surgeon. On August 7, 2002, Taylor complained of jaw and neck pain. She graded her pain level at a seven. Dr. Martin stated that he felt she was honest and forthcoming. He admitted that if she did have TMJ arthritis it would have shown up on the MRI.

Dr. James McAndrew, a specialist in the field of TMD, conducted an IME on Taylor on September 28, 2001. He found that Taylor was suffering from TMD and felt, more probably than not, it was caused by the accident, especially since she never displayed signs of TMD at her regular dentist appointments. Dr. McAndrew recommended that Taylor undergo an ar-throscopy and an auriculotemporal block to determine if her headaches were associated with the TMD or from her cervical pain. Dr. McAndrew felt that Taylor had been misdiagnosed .by Dr. Warren. He further felt that her bicuspids did not need to Be brought down in the midst of the splint therapy to help her TMD, but that the event had nothing to do with the accident.

Dr. Robert Martinez, a neurologist and expert in sleep disorders, saw Taylor once on December 10, 2001, upon referral from Dr. Martin. At that time, he -recommended some methods to aid her in sleeping -better. Dr. Martinez stated that, Infrom his limited contact with Taylor, he believed the primary component of her sleep disorder was pain from the TMJ, based on the history she gave him.

Dr. P.J. Walters, an oral maxillofacial surgeon, saw Taylor for the first time on February 25, 2002, at which time she reported the same types of problems as before, which she had been experiencing for about seven years, since the accident. He ordered an MRI, which Taylor underwent on March 27, 2002. The MRI showed no abnormal results, but Dr. Walters stated that arthrosporic surgery to clean out the inflamed area could benefit Taylor. Taylor underwent the arthroscopy on March 29, 2002. Dr. Walters found that there was no pathology on the right side and stated that it appeared to be a fairly healthy normal joint. He stated that the joint on the left side had some mild inflammatory response in the surrounding tissues.

Dr. Walters testified that, following the arthroscopy, Taylor reported a decrease in headaches. He last saw her on July 22, 2002, at which time she reported that she was not doing any better. Dr. Walters recommended lifestyle modifications Taylor could make, such as stress reduction to prevent her from clenching her jaw. However, he said that he did not feel she was a candidate for surgery and that a repeat arthrosporic surgery would be of no benefit to her. Dr. Walters explained that the inflammation on the left side might explain why she is having so many problems, but that he could not say for certain that it was attributable to the accident because so much time had elapsed. He said that Taylor did not appear to exaggerate her symptoms. He stated that both joints opened and closed normally on the MRI, but that a negative MRI did not rule out inflammation. Dr. Walters disagreed with Dr. McAndrew’s assessment that the orthodontic work did not follow from the initial | ^problems following the accident. He felt that the orthodontic work flowed from the avoidance of having to wear a splint for the rest of her life.

Ryan Ringuet testified that he has known Taylor for approximately four years and is currently dating her. He stated that he met her after the car accident. Ringuet testified that Taylor is limited in what she can eat and that she can only eat soft foods, but nothing that requires her to open her mouth wide, such as a po-boy; requires pulling, such as pizza; or is too chewy, such as steak. He stated her study habits have been affected and that she has a hard time dealing with the pain. Rin-guet testified that Taylor sometimes cries because she is in so much pain and often wakes in the middle of the night. He stated that he sometimes massages her neck and jaw to ease the pain. Ringuet further testified that Taylor has missed classes at the University of Louisiana, Lafayette, because of the pain. He also stated that, following her wisdom teeth removal, she was in excruciating pain for days because her jaw was locked open for such a long period of time.

Taylor, who was twenty-three at the time of trial, testified as to the details of the car accident. Following the accident, she stated that her face, neck, and lower back hurt, and that she was experiencing tingling in one of her arms. She stated that, prior to the accident, she had never had any face or jaw pain, or any headaches, back pain, or neck pain of any significance. She described the aggravation and pain of having to wear the splints. She also stated that Dr. McConnell’s removal of her teeth was very painful. She went on to describe the other procedures and the pain associated with them, and stated that her jaw still locks up. She testified that her grades suffered because she missed a lot of school.

1^However, on cross-examination Taylor was questioned as to whether her parents divorce or her unplanned pregnancy, which she kept a secret for nine months, may have led to the stress contributing to her TMJ, poor grades, and sleeping problems. Taylor admitted that she did not disclose the pregnancy to Allstate because she felt it was “private.” Taylor also denied being involved in an accident in April 1993, that led her to receive treatment from Pinhook Chiropractic.

After reviewing all of the testimony, we find that the jury did not abuse its discretion in awarding Taylor $50,000 in general damages. Clearly the jury felt that the accident did indeed contribute to her TMJ, back, and neck problems. However, there was substantial testimony that many other factors in Taylor’s life were the contribuí-ing cause of her poor grades and TMJ flare-ups. Considering this evidence, the jury’s award is affirmed, and this assignment of error is dismissed as being without merit.

Special Damages

Taylor argues that the jury erred in failing to award future medical expenses. The law is well-settled that the plaintiff bears the burden of proving that she will incur future medical expenses. In Carrier v. Nobel Ins. Co., 01-983, p. 3 (La.App. 3 Cir. 2/6/02), 817 So.2d 126, 134-35, writs denied, 02-0728, 02-739 (La.5/10/02), 815 So.2d 843, 845, we stated:

In order to recover for future medical expenses, the plaintiff must establish the amount of the award with some degree of certainty. Cormier v. T.H.E. Ins. Co., 97-1143 (La.App. 3 Cir. 5/27/98); 716 So.2d 387; rev’d on other grounds, 98-2208 (La.9/08/99); 745 So.2d 1. An award for future medical expenses “will not be made in the absence of medical testimony as to the requirements for such expenses and their probable cost.” Id. at p. 11; 716 So.2d at 395; quoting Rowe v. State Farm Mut. Auto. Ins. Co., 95-669, p. 20 (La.App. 3 Cir.); 670 So.2d 718, 730, writ denied, 96-0824 (La.5/17/96); 673 So.2d 611. In Veazey v. State Farm Mutual Auto Insutance, 587 So.2d 5, 8 (La.App. 3 Cir.1991), this court explained:
Future medical expenses, like any other damages must be established with some degree of certainty. The plaintiff must show that, more probably than not, these expenses will be incurred. Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost. An award for future medical expenses cannot be based on mere speculation of the jury. Much stronger proof, such as medical testimony of the specific expenses to arise, should be required for such an award. (Citations Omitted.)

We find no error in the jury’s refusal'to award future medical damages. The record was void of any testimony as to need and cost of such care other than Dr. Warren’s claim that Taylor would probably have TMJ problems “for life” and would require future medical care, at an unspecified cost, and Dr. Harkins’ claim that she would probably have problems in the future. We find no error in the jury’s finding that this evidence was insufficient to establish a claim for future medical damages. This assignment of error is without merit.

ARBITRARY AND CAPRICIOUS

Taylor argues that the jury erred in finding that Allstate was not arbitrary, capricious, and without probable cause in making its tenders. Allstate’s tenders to Taylor, beginning from the accident and up through trial, totaled $80,579. Taylor’s main argument is that Allstate failed to adequately compensate her for her pain and suffering over the six year period. We disagree. We reviewed adjuster Lois Hebert’s extensive testimony regarding the method and manner used in making these distributions. We find no manifest error in the jury’s finding that Allstate was neither arbitrary, capricious, nor without probable cause as there was no testimony that 1^Allstate failed to tender undisputed amounts. Thus, Allstate is not subject to penalties and attorney’s fees pursuant to La.R.S. 22:658 and 22:1220. This assignment of error is without merit.

EVIDENCE

Lastly, Taylor urges that the trial court erred in excluding a document stating that the Pinhook Chiropractic Clinic records, indicating that she received treatment there due to an “April 1993 accident” was an error and that it was a default setting on the computer program. Taylor’s step-father, who worked at Pin-hook, obtained a document from Pinhook stating that it was a misprint. However, Allstate’s counsel objected to the admission of the letter , for numerous reasons, and the trial court agreed that it should be excluded. We agree that this letter constituted hearsay in the most classic sense, which is not admissible. See La.Code Evid. arts. 801-02.

La. Code Evid. art. 103(A) states in pertinent part that an “error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” In State Farm Mutual Automobile Insurance Co. v. Little, 34,760, p. 6 (La.App 2 Cir. 5/20/01), 794 So.2d 927, 930, the court stated: “In reviewing evidentiary decisions of the trial court, an appellate court .must consider whether the particular ruling complained of was erroneous and if so, whether the error prejudiced, the complainant’s cause, for unless it does, reversal is not warranted.”

We find no manifest error in the trial court’s ruling. Even if it was in error, it was harmless and did not affect a substantial right. Taylor and Dr. Morvant, both testified there was no accident and the treatment was maintenance oriented. This assignment of error is without merit.

^CONCLUSION

- The jury’s award in favor of the plaintiff-appellant, Alexis D. Taylor, is affirmed. All costs of this appeal are assessed to Taylor.

AFFIRMED.

PETERS, J., concurs in part and dissents in part, and would increase the plaintiffs damage award.


author: THIBODEAUX, Chief Judge.

text:
    Glen J. MOODY v. STATE FARM MUTUAL AUTO INS. CO., et al.
    No. 2003-1594.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      James Paul, Lambert Curtis & Lambert, Lafayette, LA, for Plaintiff/Appellant — Glen J. Moody.
    Preston D. Cloyd, Cloyd, Wimberly & Villemarette, L.L.C., Lafayette, LA, for Defendant/Appellee — State Farm Mutual Auto Insurance Co.
    Ian Alexander MacDonald, Perret, Doise Lafayette, LA, for Defendant/Appellee— Progressive Security Insurance Co.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   THIBODEAUX, Chief Judge.

In this automobile accident case, the plaintiff, Glen J. Moody (Mr. Moody), appeals .the judgment of the trial court in favor of the defendants, Meghan Lynn Carpenter (Ms. Carpenter), her insurer, State Farm Mutual Automobile Insurance Company (State Farm), and Mr. Moody’s un/underinsured motorist carrier, Progressive Insurance Company (Progressive). The defendants stipulated tó liability. At the conclusion of a jury trial in this matter, a verdict was returned awarding Mr. Moody $7,677.13 in past medical expenses and $7,000.00 in general damages. There was no award for future medical expenses. Mr. Moody appeals.

For the following reasons, we affirm the judgment of the trial court'awarding Mr. Moody general damages. However, we amend the judgment to increase the. general damage amount to $35,000.00. Further, we reverse the jury’s failure to award Mr. Moody any amount for future medical expenses and award the amount of $71,480.00 for that item of damages.

I.

ISSUES

Mr. Moody assigns as error the jury’s failure to award him any amount for future medical expenses. Mr. Moody further assigns as error the amount the jury awarded for general damages. He asserts that $7,000.00 in general damages is abusively low.

.JaP-

FACTS

On November 20, 2000, Mr. Moody and Ms. Carpenter were involved in a vehicular collision when the vehicle driven by Ms. Carpenter turned left in front of the pickup truck driven by Mr. Moody. Ms. Carpenter’s liability for causing the accident is not in dispute. Upon impact, Mr. Moody was thrown forward into the steering wheel of his truck with such force that it bent around the steering column. Mr. Moody was transported to the hospital by ambulance. He testified that immediately following the collision he lost consciousness, regained it, but lost consciousness several more times while en route to the hospital.

In addition to the damage to his truck, Mr. Moody claimed that he suffered several bodily injuries. He suffered bruising to his chest when his body was thrown into the steering wheel upon impact. His chest was also scraped to the extent that some chest hairs were torn out. Mr. Moody testified that he experienced pain and burning in his eyes as well as head pain. With respect to his left ear, Mr. Moody stated that since the accident, he started hearing a “whistling” sound when his ear is touched or scratched. Some years prior to this accident, Mr. Moody had back surgery. He testified that his back pain increased after the accident with Ms. Carpenter.

According to Mr. Moody, his knees did not give him problems until after the accident. He testified that before the accident he could jog and dance. After the accident, he could no longer engage in those activities. Mr. Moody is the owner of several apartment properties. To get to some of the properties to repair or show them, Mr. Moody is required to walk up stairs. He testified that activities like walking upstairs, carrying things of any weight and walking distances cause great pain due to 13the injury to his knees. Mr. Moody is unable to cut the grass on his properties, and is unable to do a lot of the repair work necessary for the upkeep of his properties. Although he can lease the units, he is unable to show some of them because he cannot climb the stairs. The ability to walk long distances is necessary for him to do his job as duck hunting guide. His knees prevent him from doing so.

At the time of trial, Mr. Moody was fifty-four years old. He admitted that at the time of the accident he was not in the best of physical health. In 1980, he was involved in an on-the-job accident where he tore ligaments in both his hands and required surgery on both wrists as well as rehabilitation. During his rehabilitation, he completed his college education and graduated with a B.S. degree in mid-management. It was from that point on that he was considered medically disabled. He relied on the income generated from his investment properties to earn a living. As a teen, Mr. Moody was shot in his left eye while hunting. As a result of the shooting, his vision became severely distorted. However, despite his eye injury, he continued to engage in activities like sports, hunting and farming.

In 1985, Mr. Moody was involved in another vehicular accident. He testified that his back problems began as a result of that accident, and subsequent surgery to correct the problem did not alleviate the pain. He was involved in another vehicular collision in 1989. In 1992, an eighteen-wheeler truck pulled out in front of the vehicle Mr. Moody was operating causing the two vehicles to collide. In 1987, after his back surgery, Mr. Moody was treated for back pain by Dr. Donald C. Harper, a neurologist and pain management specialist. Since the 1990s, Mr. Moody had been taking Methadone, prescribed by Dr. Harper to alleviate his back pain. Two days following the accident of November 2000, Mr. Moody sought treatment from Dr. Harper. Dr. Harper treated Mr. Moody for low back pain, headaches and leg pain |4prior to the accident. After the accident, Mr. Moody told him of the pain in his knees. Dr. Harper testified that Mr. Moody had not made a complaint of knee pain during the ten years that he treated him before November 2000. Dr. Harper also testified that Mr. Moody is a patient who typically minimizes the pain that he feels.

III.

LAW AND DISCUSSION

Mr. Moody asserts that the jury erred in failing to award damages for future medical expenses. Mr. Moody argues that his knee problems were caused by the accident. He further argues that because the jury awarded him the full amount of medical expenses he incurred as a result of his accident, which included expenses related to the treatment of his knees, the jury concluded that the accident caused his knee problems. Thus, Mr. Moody contends, “the jury clearly rejected [the defendants’] argument that [his] knee problems were not caused by the accident.” Therefore, it was abuse of the jury’s discretion to fail to award medical expenses related to the future treatment of his knees. The defendants argue that there was evidence in the record that Mr. Moody possessed a degenerative condition with respect to his knees and was severely disabled by other accidents prior to the accident involved in this appeal. The defendants further assert that Mr. Moody’s complaints following the accident were limited to headaches and sternum pain, all of which resolved eliminating the need for future medical treatment.

The standard of this court’s review of damages was established in Reck v. Stevens, 373 So.2d 498 (La.1979) and was confirmed in Youn v. Maritime Overseas, Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Those cases instruct that we cannot disturb a trial court’s award of damages unless we find that the award constitutes an abuse of the trial court’s | fjdiscretion. After carefully reviewing the record, we find that the trial court abused its discretion in failing to award Mr. Moody any amount for future medical expenses and in its assessment of general damages.

To recover damages for future medical expenses, the plaintiff must show it is more probable than not that future medical expenses will be incurred. Medical testimony is required to support an award of future medical expenses. Clavier v. Roberts, 00-1666 (La.App. 3 Cir. 4/4/01), 783 So.2d 599, writ denied, 01-1662 (La.9/21/01), 797 So.2d 672. Dr. Harper, Mr. Moody’s treating physician, testified that after his many years of treating Mr. Moody, he determined that Mr. Moody is a stoic person, one who may feel pain, but does not show it externally. In other words, Dr. Harper felt that Mr. Moody under-expresses his pain level. Dr. Harper clearly testified that prior to the November 20, 2000, accident there was very little focus on any knee problems. On September 21, 2000, Mr. Moody’s last visit with Dr. Harper before the accident, Mr. Moody complained of pain in his arms, neck and right leg but he did not make any complaints of pain in his knees.

It was not until November 30, 2000, approximately one week after the accident, that Mr. Moody complained to Dr. Harper about, among other things, having pain in his knees. After his examination, Dr. Harper opined that Mr. Moody had experienced new pains involving his head and eyes as well as his knees. Dr. Harper continued to treat Mr. Moody through the year 2003 and opined that Mr. Moody’s persistent problems post-accident were eye and knee pains. Dr. Harper referred Mr. Moody to an orthopedic surgeon, Dr. Robert Morrow, Jr., for his knee pains.

As late as March 18, 2003, Mr. Moody still had complaints of pain in his knees and described the pain to Dr. Harper as “shooting, stabbing, gnawing, burning, | ^exhausting, miserable, unbearable and continuous.” The pain was worse in the evening. On a scale of one to ten, with ten being the worst pain, Mr. Moody rated the pain as an eight. With respect to how the pain impacted his life, Mr. Moody described to the doctor that he had problems walking, driving and carrying things. He also experienced insomnia, lack of appetite and tiredness, as well as sweating and difficulty sleeping as a result of the medicines he took. The pain also affected how he interacted with other people. Dr. Harper admitted that a lot of Mr. Moody’s complaints of pain preceded the accident. However, he concluded that his pain was aggravated by the accident and his knee pain occurred subsequent to the accident.

Dr. Morrow, the orthopedic surgeon to whom Dr. Harper referred Mr. Moody, diagnosed Mr. Moody with.chondromalacia in his knees, a degenerative change in the cartilage of the knee that is unlikely to improve without surgery, such as a total knee replacement. It was Dr. Harper’s opinion that Mr. Moody’s knee complaints were related to his November, 2000 automobile accident. Dr. Harper admitted that it is reasonable to believe that absent the accident, he would have continued to treat Mr. Moody for the chronic pain he experienced. He further stated that Mr. Moody did not complain of knee pain on every visit after the accident.

As noted, Dr. Harper referred Mr. Moody to Dr. Morrow. This decision was made after the pain in Mr. Moody’s knees failed to respond to conservative treatment. On his first visit with Dr. Morrow, the doctor objectively detected “patella femoral crepitation” when he did an active range of motion examination. After getting the result of x-rays and an MRI of Mr. Moody’s knees, Dr. Morrow ultimately diagnosed chondromalacia in both knees. His examination further convinced him that Mr. Moody did not have pre-existing advanced degenerative changes in his knees. The doctor concluded that Mr. Moody had early degenerative changes in his knees, |7but post-traumatic knee pain. The MRI revealed mild to moderate wear and tear on the medial or inside of Ms knees as well as mild to moderate osteoarthritis. On his left knee he had a small tear. Dr. Morrow testified that the tear could have happened due to repetitive use or trauma. When Mr. Moody made contact with the dashboard of his truck, Dr. Morrow opined he could have “compressed his kneecap against the femur. And that’s the articular surface that he has trouble with.”

Normal activities like walking, climbing stairs and squatting, would all aggravate Mr. Moody’s knee problems. Dr. Morrow testified that some of Mr. Moody’s knee problems existed before the November 20, 2000, accident. However, there are no records of his knees being in pain or of him receiving any treatment therefor. Thus, Dr. Morrow concluded that the direct trauma to his knees in the accident exacerbated his pre-existing asymptomatic condition. The last visit Mr. Moody had with Dr. Morrow prior to trial in this matter was March 27, 2003.

Dr. Morrow described some of the treatment he administered to Mr. Moody to alleviate his knee pain. The doctor prescribed various exercises to strengthen Mr. Moody’s quadriceps, including some done in a pool as well as isometrics. Dr. Morrow also tried some medications to help Mr. Moody. However, Mr. Moody had stomach irritation as a result of the medications and had to be taken off of them. Further, Mr. Moody’s activities were restricted. Dr. Morrow testified that Mr. Moody has to stop doing any type of activities that aggravate his knee pain such as ascending and descending stairs because climbing stairs is an activity that “increases the compressive forces between the patella and the femur.” The doctor informed the court that kneeling has the same affect.

The anti-inflammatory medication Mr. Moody takes to alleviate the pain in his knee requires close monitoring of his liver and kidney functions by a doctor |severy three months. Dr. Morrow testified that the cost of one pill of the anti-inflammatory medicine is $2.00. Mr. Moody is required to take two pills per day; thus, his cost per day for medication would be $4.00. Mr. Moody would also require a diagnostic MRI every other year at a cost of approximately $1,000.00 per knee and x-rays once a year, at a cost of $250.00. Dr. Morrow testified that the condition of Mr. Moody’s knees did not make him a candidate for surgery at this time. Although Mr. Moody’s knees show early indications of arthritis, Dr. Morrow testified that the arthritis is not severe because there was no “bone on bone” contact in Mr. Moody’s knees. Dr. Morrow opined that absent the November 2000 accident, the pre-existing condition of Mr. Moody’s knees may have caused him to develop knee problems in the-future. However, there is no way to tell how far in the future the problems would have occurred or how severe the problems would be. The accident accelerated the onset of symptoms. Dr. Morrow estimated that Mr. Moody has a life expectancy of seventy-eight years.

, On cross examination, Dr. Morrow testified that Mr. Moody did not go to his office about his knees until approximately six- and-a-half months after the accident. Both Dr. Harper and Mr. Moody explained that this delay in seeking treatment from an orthopedic surgeon was due to the desire of Dr. Harper and Mr. Moody to treat the condition conservatively. At the time of his first examination, Dr; Morrow found that Mr. Moody had full range of motion in his knees. A review of the records from the ambulance company that transported Mr. Moody, to the hospital emergency room reveal that Mr. Moody did not complain about knee pain, discoloration or bruising. The emergency room nurse’s assessment notes no pain in Mr. Moody’s knees. Dr. Morrow further admitted that his opinion that Mr. Moody’s knee problems were exacerbated by the accident is premised upon Mr. Moody 19sustaining direct trauma to his knees in the accident. Mr. Moody gave a history to Dr. Morrow of his knees banging into his truck’s dashboard in the accident. Dr. Morrow admitted that the medical records he reviewed did not reveal direct trauma to Mr. Moody’s knees. However, Dr. Morrow opined that it is likely that Mr. Moody’s knees did collide with the truck’s dashboard because he was in a sitting position, was pushed forward into the steering wheel with enough force to bend the steering wheel and sustained injuries to his chest, pelvis and head.

Dr. Morrow explained that patients who sustain head injuries are not the most reliable source of immediately giving information about all injuries they may have suffered in an accident. Thus, Dr. Morrow testified that he did not find it unusual that Mr. Moody did not mention a knee injury during his emergency room visit. The doctor further explained that a knee that sustained impact trauma may not immediately cause problems, but that symptoms may develop over time as the knee is used.

Mr. Moody’s fiancée, Sherrie Lagrange, testified that he did not complain of knee pain until after the accident. The testimony of his treating physician, Dr. Harper, who had been treating Mr. Moody for pain for ten years, corroborates the testimony of Ms. Lagrange and Mr. Moody as to the onset of his knee problems. The defendants make much of the fact that Mr. Moody did not see Dr. Morrow until May 1, 2001. However, he complained about knee pain to his primary physician within a few days of the accident. When there was nothing more Dr. Harper could do to alleviate Mr. Moody’s knee pain, he referred him to Dr. Morrow, the orthopedic specialist. It is clear that Mr. Moody had some type of degenerative knee problems prior to the November 2000 accident. However, Dr. Morrow testified that his pre-existing knee problems were mild and could have hnremained asymptomatic for many years. Both doctors testified that they felt that the accident caused an aggravation of his preexisting knee condition. There is no medical evidence to the contrary. The doctors’ testimony also established that Mr. Moody will continue to have knee problems and need pain management therapy. While it is clear that Mr. Moody was not in the best of health prior to the November 2000 accident — he had headaches, low back pain, leg pain and depression as well as a weight problem — “a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.” Saine v. City of Scott, 02-265, p. 3 (La.App. 3 Cir. 6/12/02), 819 So.2d 496, 499, quoting, Rhodes v. State, Through Dept. of Trans. and Dev., 94-1758, p. 13 (La.App. 1 Cir. 12/20/96), 684 So.2d 1134, 1144, writ not considered, 97-242 (La.2/7/97), 688 So.2d 487.

Mr. Moody can no longer work as a duck hunting guide because he cannot walk long distances. He can no longer dance at festivals and cannot perform his maintenance chores at the apartment complexes he owns and manages. Prior to the November 2000 accident, Mr. Moody would show his apartments to potential tenants. Some of the apartments are two-story apartments. Due to the pain in his knees and the advise from his doctors to cease climbing stairs, he must rely on others to show the two-story apartments to prospective tenants or allow the tenants to view the apartments alone. Mr. Moody had to move out of his own two-story townhouse apartment into a one-story flat. There is evidence in the record that Mr. Moody, an active man despite his many physical challenges, will endure pain for the rest of his life. The record reveals that the jury’s award for past medical expenses included all of Mr. Moody’s medical expenses related to the treatment of his knees. Thus, it appears that the jury felt that his knees were damaged in the accident. Mr. Moody has suffered with increasing knee pain since November 2000. He can no longer engage h fin the activities he enjoyed or take care of his own property. Thus, we find that the amount awarded by the jury for Mr. Moody’s general damages is abusively low. Therefore, we increase the general damages award from $7,000.00 to $35,000.00.

With respect to future medical expenses, we find that the medical testimony presented in this case produced sufficient evidence that Mr. Moody will need treatment for his knee problems for the rest of his life. Thus, the jury erred in failing to award any amount for future medical expenses. Damages for future medical expenses are special damages, which can be established to a reasonable mathematical certainty, though not necessarily precisely. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70. At the time of trial, Mr. Moody was fifty-four years old. Evidence in the case revealed that he has a life expectancy of seventy-eight years. The evidence also revealed that Mr. Moody will have to undergo quarterly office visits, annual x-rays and MRI studies of his knees every other year. Dr. Morrow, Mr. Moody’s treating orthopedist, estimated that the cost for the office visits would be $12,480.00 and that the x-rays would cost $24,000.00. Dr. Morrow also testified that Mr. Moody would have to continue taking prescribed medications throughout his life at a cost of approximately $35,000.00. Therefore, we award the amount of $71,480.00 in future medical expenses.

IV.

CONCLUSION

For the reasons assigned, we affirm the trial court’s judgment insofar as it awarded the plaintiff, Glen J. Moody, general damages. However, we amend and recast the trial court judgment so as to increase the quantum of general damages in favor of Glen J. Moody from $7,000.00 to $35,000.00. We reverse the trial court judgment insofar as it failed to award Glen J. Moody any amount for future medical _Jigexpenses. To that end, we order that there be judgment in favor of plaintiff, Glen J. Moody, and against defendants, Meghan Lynn Carpenter, State Farm Mutual Automobile Insurance Company and Progressive Insurance Company, in the amount of $71,480.00 for future medical expenses. Finally, it is ordered that costs are to be borne by the defendants, Meghan Lynn Carpenter, State Farm Mutual Automobile Insurance Company and Progressive Insurance Company.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART AND RENDERED.


author: | DECUIR, Judge.

text:
    STATE of Louisiana v. Dustin Mathew BURNAMAN.
    No. 03-1647.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      James C. Downs, District Attorney, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    George L. Higgins, III, Attorney at Law, Pineville, LA, for Defendant/Appellant, Dustin Mathew Burnaman.
    Charles E. Johnson, Jr., Assistant District Attorney, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Dustin Mathew Burnaman, R.P.D.C., Alexandria, LA, pro se.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   | DECUIR, Judge.

The Defendant, Dustin Mathew Burna-man, was charged by a bill of information with assault by drive-by shooting in violation of La.R.S. 14:37.1 and with aggravated criminal damage to property in violation of La.R.S. 14:55. The Defendant entered a guilty plea pursuant to a plea bargain with the State wherein the State reduced the charges to aggravated assault with a firearm in violation of La.R.S. 14:37.4 and simple criminal damage to property in violation of La.R.S. 14:56. The trial court sentenced the Defendant to five years at hard labor on the count of aggravated assault with a firearm and two years at hard labor on the count of simple criminal damage to property with the sentences to run concurrently. The Defendant also agreed to pay $10,000.00 to the victims in restitution.

The Defendant then filed a motion to reconsider sentence, which was denied. He is now before this court alleging as his sole assignment of error the excessiveness of his sentence.

FACTS:

On October 10, 2002, the Defendant discharged a firearm from a motor vehicle upon a public street or highway. The Defendant and the driver of the motor vehicle were consuming alcohol at the time of the offenses. The victims’ house was damaged when shots from the firearm pierced the walls of their home. At sentencing, the court noted the Defendant admitted his wrongdoing and the record reflects his remorse. Nonetheless, the Defendant was sentenced to the maximum term of imprisonment on both counts, primarily as a deterrent to others.

ASSIGNMENT OF ERROR:

The Defendant alleges that the trial court erred in imposing an excessive sentence. In his Motion to Reconsider, the Defendant alleged only that his sentence was excessive; he did not assert any specific grounds of excessiveness. Consequently, upon appellate review, the Defendant is relegated to a bare excessive sentence review. State v. Mims, 619 So.2d 1059 (La.1993).

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, .§ 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99—192[p.5] (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether' another sentence might have been more appropriate. State v. Cook, 95-2784 [p.3] (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

In order to decide whether a sentence shocks the sense of justice or paakes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislátive purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences' imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

|sWhen sentencing the Defendant, the trial court stated:

I have looked at the sentencing guidelines under Article 894.1 and it says the Court should impose a sentence of imprisonment if any of the following occurs: There is an undue risk during the period of suspended sentence or probation that the defendant will commit a crime. I don’t think that there is an undue risk. I would think that is in your favor right now. Number 2, the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution. I don’t think that would be appropriate either. I think- that the problem could be solved by a parish prison sentence, probation, and you being in drug treatment. But the third one is the one that I find is appropriate. A lesser sentence would deprecate the seriousness of the defendant’s crime. And the seriousness of your crime is that you shot into a house that was occupied by a man and his children, which in effect has terrorized them, and will terrorize them for quite some time.
All right Mr. Burnaman, the problem that I have is that I don’t think that your behavior would be likely to recur. I think there are things that I could do to make sure that didn’t happen and to keep a tight leash on you. And so that would indicate that I wouldn’t have to put you in prison to change your behavior. But if I don’t give you a sentence that is serious, what does that say to the other people out there that want to go out there and do the same thing and shoot in people’s houses. If I gave you probation then everybody could go out and shoot up people’s houses and come to me and say, “Well, you have to give me probation, because you did the same thing to Dustin Burnaman.” And so one of the sentences — one of the things I have to consider in sentencing is what Judge Foote calls the “R.S.V.P.”. The rehabilitation, I think we can do that. The question is what is it that society would expect, and that is general deterrents. We have to send some kind of signal out when someone commits a crime about general deterrents; that you are not supposed to do these things, because if you do, this is going to happen.
Punishment. Specific deterrents. What is it that I have to do to make you not do this again. And I don’t think that I have to do anything to you. I could put you on probation, or I could give you a parish prison sentence and put you on probation, to deter you from doing this in the future. I don’t think that Dustin is going to be doing this anymore. I think Dustin has learned from it. But the problem is general deterrents. If there is not a serious sentence, then how are we going to deter people from doing this kind of conduct in the future.

RThe trial court then sentenced the Defendant, a first felony offender, to the maximum sentence on each count.

In State v. Young, 532 So.2d 301, 303 (La.App. 3 Cir.1988), writs denied, 538 So.2d 588, 589 (La.1989), this court stated:

Despite a trial court’s meticulous compliance with the provisions of La.C.Cr.P. art. 894.1, an appellate court may nonetheless determine that a sentence is excessive if convinced, after granting due deference to the wide discretion allowed the trial judge in such cases, that the sentence imposed is grossly out of proportion to the severity of the crime. In reviewing a claim of excessiveness, the court should consider the crime committed; the particular circumstances surrounding the commission of the crime; and, the offender’s personal history (age, family ties, marital status, health, employment record), prior criminal record and the likelihood of recidivism or rehabilitation. If, after review, the appellate court concludes that the sentence imposed constitutes a clear abuse of the sentencing judge’s discretion such as to shock its sense of justice, the sentence should be set aside and the matter remanded for resentencing.

In the case at bar, the trial court noted as a mitigating factor that the Defendant’s criminal conduct was the result of circumstances unlikely to recur. La.Code Crim.P. art. 894.1(29). The trial court also noted as a mitigating factor that the Defendant was particularly likely to respond to probationary treatment. La.Code Crim.P. art. 894.1(30).

The trial court noted several times that a hard labor sentence was not necessary to deter the Defendant from committing another crime. The trial court specifically stated that the Defendant had learned his lesson and that a parish prison or suspended sentence would be appropriate for this Defendant.

In Smith, 846 So.2d at 789, we held: “[I]t is well settled that sentences must be individualized to the particular offender and to the particular offense committed,” citing State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). After reviewing the record in this case, we conclude the sentencing judge did not sufficiently tailor the sentence to this particular Defendant. In sentencing the Defendant to the maximum sentence |fim an attempt to deter others from engaging in the same type of conduct, the trial court abused its discretion. The trial court specifically stated that the Defendant would benefit from a parish prison sentence or even probation, yet a much more severe punishment was imposed. The sentences were not individualized to this Defendant; rather, the Defendant was sentenced to the maximum term of imprisonment at hard labor specifically so that he could be an example to the public, a deterrence to others who may be inclined to ride around drunk with a firearm in their vehicles.

Additionally, maximum sentences are usually reserved for the most egregious and blameworthy of offenders. State v. LeBlanc, 578 So.2d 1036 (La.App. 3 Cir.1991), writ denied, 620 So.2d 833 (La.1993). In reviewing the imposition of a maximum sentence, the First Circuit has held:

This Court has stated that maximum sentences permitted under statute may be imposed only for the most serious offenses and the worst offenders, State v. Easley, 432 So.2d 910, 914 (La.App. 1 Cir.1983), or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. See State v. Chaney, 537 So.2d 313, 318 (La.App. 1 Cir.1988), writ denied, 541 So.2d 870 (La.1989). A trial court’s reasons for imposing sentence, as required by La.Code Crim. P. art. 894.1, are an important aid to this court when reviewing a sentence alleged to be excessive. State v. McKnight, 98-1790 at p. 25, 739 So.2d [343]at 359 [(La.App. 1 Cir. 1999)].

State v. Hilton, 99-1239, p. 16 (La.App. 1 Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 00-958 (La.3/9/01), 786 So.2d 113.

We find the trial court did not individualize the sentence to this particular Defendant, and in imposing sentences greater than was necessary to rehabilitate and punish the Defendant, the trial court abused its discretion. Thus, we revérse the Defendant’s sentences and remand the case for re-sentencing.

REVERSED AND REMANDED.