author: J_jLEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Edward CRAIG.
    No. 2002-K-1172.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2003.
    Eddie J. Jordan, Jr., District Attorney, Parish of Orleans, Jeffrey M. Burg, Assistant District Attorney, Parish of Orleans, Jessica I. Lacambra, Assistant District Attorney, Parish of Orleans, Sunny D. Funk, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for the State of Louisiana.
    Frank J. Larre’, Larre’ and Associates, Metairie, LA, for Defendant, Edward Craig.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge DENNIS R. BAGNERIS, SR., and Judge LEON A. CANNIZZARO, JR.).
   J_jLEON A. CANNIZZARO, JR., Judge.

This case is being considered on remand from the Supreme Court of the State of Louisiana. For the reasons set forth below, this Court grants the writ sought by the State of Louisiana and reverses the trial court’s decision granting the defendant, Mr. Edward Craig, a new trial.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Craig and his codefendant, Steven Atlow, were charged by a bill of information with the unlawful possession of heroin. Mr. Atlow pled guilty as charged, and Mr. Craig was tried by a twelve person jury and found guilty of attempted possession of heroin.

There was testimony at trial that New Orleans Police Department (“NOPD”) Detective Kyle Hinriehs and NOPD Detective Ryan Lubrano were assisting NOPD Detective Robert Ferrier in conducting surveillance for narcotics near Martin Luther King Boulevard in New Orleans, Louisiana. Detectives Hinriehs and Lubrano were sitting in a parked, unmarked police vehicle when they observed Mr. Atlow run across the neutral ground near the rear stairwell of 2501 Martin LLuther King Boulevard. The detectives then observed Mr. Atlow meet on the second floor landing of the stairwell with an unknown male, engage in a brief conversation with that person, and give that person what appeared to be currency. Mr. Atlow then ran back in the direction from which he had come and entered a vehicle on the front passenger side. There were three other occupants already in the vehicle when Mr. Atlow entered it.

Detectives Hinriehs and Lubrano believed that they had just observed a drug transaction, and they elected to make an investigatory stop of the vehicle that Mr. Atlow entered. During the stop, the detectives observed Mr. Atlow put an object into his mouth, at which point all of the occupants of the vehicle were asked to exit the vehicle for the safety of the police officers. When the detectives discovered that Mr. Atlow had placed a foil packet containing heroin in his mouth, he was placed under arrest.

After Mr. Atlow was arrested, Detectives Hinriehs and Lubrano conducted a patdown search of the other three occupants of the vehicle to insure the safety of the police officers as well as the safety of the occupants of the vehicle. During the patdown of Mr. Craig, Detective Hinriehs felt the outline of two hypodermic needles. Upon inspection of the needles, Detective Hinriehs observed that they contained a liquid residue that appeared to be heroin. Mr. Craig was advised of his Miranda rights and placed under arrest at this point.

NOPD Officer Harry O’Neal, an expert in the identification and analysis of controlled dangerous substances, testified at the trial that on the day after the | ¡¡needles were confiscated from Mr. Craig, they were chemically tested for heroin. Although Officer O’Neal testified that he could not see evidence of a residue in the needles when he prepared them for testing, the test report prepared in accordance with NOPD narcotics testing procedures showed that both hypodermic needles possessed by Mr. Craig at the time of his arrest tested positive for heroin.

After Mr. Craig’s conviction, he filed a motion for a new trial based on the alleged insufficiency of the evidence used to convict him and in the interests of justice. After a hearing on the motion for a new trial, the trial court judge granted the motion. When the trial court granted Mr. Craig’s motion for a new trial, the State orally noticed its intention to apply to this Court for writs. The State’s writ application was filed with this Court. That writ was denied by this Court. The State applied for a writ with the Supreme Court. The Supreme Court granted the State’s writ and remanded the case back to this Court for reconsideration of this Court’s denial of the State’s writ in light of State v. Sylvia, 2001-1406 (La.4/9/03), 845 So.2d 358, which was decided after this Court denied the State’s writ application.

DISCUSSION

State v. Sylvia

In Sylvia two people were arrested for public intoxication. During a search incident to the arrest, one of the arresting officers found a short metal tube with a piece of wire mesh inside of it located in the defendant’s rear pants pocket. The tube was burned at both ends. The arresting officer immediately recognized the tube as a crack pipe, a device commonly used to smoke crack cocaine. During the search incident to the arrest, a cigarette lighter was found in the defendant’s coat 14pocket, but no cigarettes were found on the defendant. The arresting officer seized the crack pipe and the cigarette lighter, and he charged the defendant with possession of drug paraphernalia. When the crack pipe was tested for illegal drugs, a residue of cocaine was found to be present.

The defendant was tried by a jury of six persons and found guilty of the lesser and included offense of attempted possession of cocaine. The defendant was adjudicated a habitual offender and sentenced to five years imprisonment at hard labor. In an unpublished opinion, this Court affirmed the defendant’s conviction. The Supreme Court subsequently granted writs.

In Sylvia the Supreme Court stated that “[t]o support a conviction for possession of cocaine, the State must present evidence establishing beyond a reasonable doubt that the defendant was in possession of the drug and that he knowingly and intentionally possessed it.” 2001-1406, p. 3 (La.4/9/03), 845 So.2d at 361. The Supreme Court further stated that “[gjuilty knowledge is an essential element of the crime of possession of cocaine.” Id. (citing State v. Edwards, 354 So.2d 1322 (La.1978)). In Sylvia the Supreme Court made it clear that circumstantial evidence can be used to prove the necessary guilty knowledge. The Supreme Court stated that “[tjhe elements of knowledge and intent are states of mind and need not be proven as facts, but may be inferred from the circumstances.” 2001-1406, p. 3, 845 So.2d at 361.

The issue on appeal in the Sylvia case was “whether the defendant’s possession of drug paraphernalia containing trace amounts of cocaine is sufficient to prove beyond a reasonable doubt that defendant ‘knowingly’ possessed the cocaine, i.e., that defendant had the requisite ‘guilty knowledge’ to support a conviction for possession of cocaine.” Id. In Sylvia the Supreme Court discussed |Rthe factors from which guilty knowledge can be inferred when a defendant is found in possession of drug paraphernalia that contains drug residue. These factors include possession of multiple pieces of drug paraphernalia, evidence of recent use of drugs, taking flight or furtive behavior, and physical possession by the defendant of an instrument with no utility other than the ingestion of drugs. 2001-1406 (La.4/9/03) at p. 6, 845 So.2d 358. These factors apply when the defendant is found in actual physical possession of drug paraphernalia .

Application of Sylvia to the Instant Case

In the instant case Mr. Craig was in actual physical possession of the hypodermic needles that contained heroin residue. Although hypodermic needles clearly have uses other than the injection of illegal drugs, hypodermic needles used for legitimate medical purposes are maintained in a sterile state until used and then discarded. It is inconceivable that a used hypodermic needle found inside someone’s sock, as was the case with the needles found in the physical possession of Mr. Craig, would be used for any medical purpose.

Because no hypodermic needle used for a legitimate purpose would be used and then kept in a nonsterile environment, the used hypodermic needles Mr. Craig had hidden in his sock had no utility other than the injection of illegal drugs. The requisite “guilty knowledge” needed to support Mr. Craig’s conviction can be inferred from the possession of dirty needles containing heroin residue that were hidden in his socks. Additional corroboration of Mr. Craig’s intent can be inferred from his being present in a vehicle with Mr. Atlow, who hid a foil packet containing heroin in his mouth when stopped by the police. Based on the | ^circumstances surrounding Mr. Craig’s possession of the hypodermic needles, this Court finds that his conviction was supported by the evidence.

CONCLUSION

This Court grants the State’s writ application and vacates the judgment of the trial court granting a new trial to Mr. Craig. Additionally, Mr. Craig’s conviction for attempted possession of heroin is reinstated. This case is remanded to the trial court for further proceedings in accordance with this opinion.

JUDGMENT VACATED, CONVICTION REINSTATED, AND REMANDED

      . The Supreme Court also distinguished the situation in Sylvia, where the defendant was in actual physical possession of drug paraphernalia, from cases where there was only constructive possession of drug paraphernalia.


source: Caselaw Access Project

author: 11 BROWN, C.J. L STEWART, J.,

license: Public Domain

text:
    Lawrence Scott PATTON, Plaintiff-Appellee, v. Linda Gay Moore PATTON, Defendant-Appellant. Linda Gay Moore Patton, Plaintiff-Appellant, v. Lawrence Scott Patton, Defendant-Appellee.
    Nos. 37,401-CA, 37,402-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.
    Rehearing Denied Oct. 23, 2003.

      Sadye B. Liepelt, for Appellant.
    Mason L. Oswalt, Monroe, for Appellee.
    Before BROWN, STEWART, GASKINS, CARAWAY and PEATROSS, ' JJ.
   11 BROWN, C.J.

Linda Patton appeals a judgment denying her claim for final periodic spousal support. For the following reasons, we reverse and render.

Facts and Procedural Background

Linda and Scott Patton were married in January 1985 and physically separated when Scott left the matrimonial domicile in November of 2001. No children were born from this marriage, and neither party has children of his or her own.

On January 14, 2002, Scott filed a petition pursuant to La. C.C. art. 102 stating his intent to move for a divorce after the passage of 180 days from service. In two supplemental petitions, he asked for an injunction prohibiting Linda from alienating, disposing, or encumbering the community property, that he be granted the exclusive use of the family home, and for the court to determine whether Linda was entitled to interim periodic spousal support. Linda filed a separate action for a divorce based upon allegations of Scott’s adultery. She asked for both interim and final support. In a third supplemental petition, filed on May 21, 2002, Scott sought a no fault divorce because he and Linda had been living separate and apart for over 180 days without reconciliation. Their actions were consolidated.

On June 20, 2002, an agreement was reached and a divorce was granted based on the parties living apart without reconciliation for over 180 days. Pertinent to this appeal, the judgment provided the following: Linda was granted interim periodic spousal support of $1,000 per month which would terminate as provided in La. C.C. art. 113 (upon the rendition of a | ¡Judgment awarding or denying final spousal support or after 180 days from the divorce judgment whichever occurred first); both parties were prohibited from disposing, alienating, or encumbering the community property pending a partition; Linda was awarded exclusive use of the family home and her vehicle; Scott was awarded the use of his vehicle; Scott waived any rental claim on Linda’s use of the family home; and Linda was declared to be free from fault.

On the day the divorce judgment was rendered, Scott moved to set a hearing on the question of final periodic spousal support. The hearing was set for October 3, 2002. Linda revised her affidavit of income and expenses to add the cost of returning to college to obtain another degree. Following the hearing, the trial court determined that Linda was “voluntarily underemployed;” Linda’s request for educational expenses was unreasonable; and Linda had “reasonably liquidable” assets available to meet her needs. The trial court remarked that Linda had no monthly house note to pay or children to support. Commenting on how “these are some of the most frugal people that have ever come before (him),” the court suggested that if Linda would employ this same “frugal attitude,” she would “clearly be able to live among the assets that she has and the income that she could get.” From the judgment denying final spousal support, which was signed on October 23, 2002, Linda has appealed.

Discussion

A court may grant final periodic support to a spouse who, prior to the filing of an action to terminate the marriage, was free of fault. Once [¡¡freedom of fault is established, the basic tests for the amount of spousal support are the needs of that spouse and the ability of the other spouse to pay. La. C.C. arts. 111, 112; Carr v. Carr, 33,167 (La.App.2d Cir.04/05/00), 756 So.2d 639; Faltynowicz v. Faltynowicz, 30,605 (La.App.2d Cir.06/24/98), 715 So.2d 90. The award for final periodic spousal support is governed by La. C.C. art. 112, which commands the court to consider all relevant factors. The nine specific factors listed in C.C. art. 112 are not exclusive. The listed factors as well as other relevant factors are for the purpose of determining entitlement, amount, and duration of final support. Article 112 also limits the amount to not exceed one-third of the obli-gor’s net income.

The trial court is vested with great discretion in making post-divorce alimony determinations, and its judgment will not be disturbed absent a manifest abuse of discretion. Carr, supra. In this case, it was stipulated that Linda was without fault, and it is clear that Scott has the ability to pay the small sum she is requesting.

Relevant factors

The earning capacities of the parties, their age, and the duration of the marriage are relevant factors that are listed in La. C.C. art. 112. The relative financial positions of the parties and the standard of living during the marriage are not listed in C.C. art. 112 but can be relevant factors. As stated above, all relevant factors are to be considered and the court is not limited to those specifically listed in the code article. See Knowles v. Knowles, 02-331 (La.App. 3d Cir.10/02/02), 827 So.2d 642.

14Scott is an attorney practicing in Monroe, Louisiana. We find that both Scott’s assets and income, as the support payor, are relevant factors in setting an award for spousal support. According to the parties’ income tax return, Scott’s adjusted gross income was $218,894.50 for the year 1999, $183,054.75 for the year 2000, and $203,548.76 for the year 2001. By contrast, Linda, at Scott’s urging, subordinated her career' to stay at home. She worked intermittently at first with banks but for the last eight years of the marriage had no significant work history. During the almost 17-year marriage, she became economically dependent on Scott. Obviously, this was Scott’s desire, at least, until he left her.

Linda Patton was 49 years old, a graduate from Northeast Louisiana University with a degree in marketing, who spent the majority of her married life as a wife and homemaker, and particularly, for the last eight years of the marriage, she has been out of the work force. Although he discouraged her from working during the marriage, when he left, Scott directed Linda to get a job. Linda sought several positions with a bank, an insurance company, and a book store; however, the only offer she received was with Glenwood Regional Medical Center in West Monroe making $10.48 per hour. Scott now argues that Linda was wrong to accept the first job offered, a position in which she is earning less than she did at her last job in banking.

Difficulty in finding employment suitable for the spouse’s age, training, and ability is a proper consideration in determining whether a claimant is voluntarily underemployed. Falterman v. Falterman, 98-158 (La.App. 5th Cir.01/13/99), 726 So.2d 1023; Fountain v. Fountain, 93-2176 (La.App. 1st Cir.10/07/94), 644 So.2d 733.

While Linda took the first job offered, she has never stated that she is unwilling to accept a higher paying job or that she would not continue to look for other avenues of employment. Simply because she accepted employment in hospital administration, rather than the banking industry, does not necessarily equate with her being “underemployed.” The record is devoid of any showing that Linda would have been able to secure employment in banking. Furthermore, she is employed in the accounting department at Glenwood, which is similar to her prior work in banking. Her yearly gross earnings at the hospital will total almost $22,000, which is only $2,000 less than the maximum she ever earned in banking.

Before accepting Glenwood’s offer, Linda applied without success for work at Regions Bank, State Farm Insurance Company, and Christian Family Book Stores. It is apparent that Linda actively sought and obtained employment despite having been out of the work force for nearly a decade. Considering the current economic times, coupled with Scott’s insistence that Linda not work during the marriage but “find a job” after he left her, it is somewhat hypocritical to fault Linda for accepting employment at Glenwood.

As long as the trial court’s determination is reasonable, based upon the record as a whole, we should not disturb it. However, for the reasons enumerated, the trial court’s finding that Linda is underemployed is unreasonable.

| rDepletion of Assets

Each party holds various retirement and IRA accounts. They also jointly own an array of stock investments. In January 2002, in violation of the restraining order, Linda unilaterally sold half of the stocks in their Fidelity investment account and received $153,000 in cash. Linda put this money into her checking account with the intent of buying a lot and building a smaller house; however, she testified, “then Scott called ... and he won’t let me buy the lot ... and then he called” and directed her to put the money in CenturyTel stock. Linda then reinvested $123,000 into CenturyTel stock and placed $30,000 into her bank savings account.

Although a spouse claiming alimony is not required to sell her non-liquid assets to support herself, she is required to deplete her liquid assets to some extent before she may be entitled to support after the divorce. Falterman, supra. In determining to what extent any depletion of assets is required of a spouse claiming post-divorce support, the court must apply a rule of reasonableness. Falterman, supra; Gardner v. Gardner, 97-0749 (La.App. 1st Cir.04/08/98), 710 So.2d 1153. The type of asset under consideration and the consequences of its liquidation are to be considered by the court. Falterman, supra.

There cannot be an exact formula or rule for deciding whether and to what extent any depletion of assets is required of a support claimant. Courts must apply a “rule of reasonableness” in light of such factors as the value and liquidity of the assets, the ages and the mental and physical health of the parties, and their relative ability, education, and work experience. Loyacano v. Loyacano, 358 So.2d 304 (La.1978). The problem is of such a nature as to be insusceptible of solution by any exact formula or monetary index, and the court should proceed with great caution and due regard for the probable long range effects of any depletion contemplated. (Emphasis added). Id.

We find Scott’s allegation that his former wife has a “net worth” of over $400,000 to be, at best, misleading. While it is possible that Linda will receive such an amount upon a partition, it is unknown at the present time what will be given to Linda; in the meantime, she is prevented from selling any community property due to the court-ordered injunction. At the time of the hearing, the CenturyTel stock had suffered a loss and was valued at $96,000. Linda now has $28,000 in her savings account. Because the community has yet to be divided and these assets were derived unilaterally from community investments, it is arguable that their alienation would contravene the injunction. While she is living in the former matrimonial domicile, she has to pay all utilities, etc. The house is paid for and valued at $150,000; however, Linda does not have title to the house, and there is an injunction preventing its sale.

The $28,000 in her savings account is small compared to Scott’s annual salary, which exceeds $200,000 per year. Put differently, Scott’s salary is over seven times larger than what Linda has in her bank account. Further, Linda’s funds must be accounted for in the forthcoming partition, while Scott’s salary must not.

| sBoth parties stipulated that Linda was without fault. Linda’s Art. 103 petition for divorce was based upon Scott’s having an extra-marital affair. Scott does not deny this allegation. It is improper to penalize Linda, the party without fault, by compelling her to sell stock at a loss in order to make ends meet and then be forced to account for the stock at its greater value in the partition. Further, there is an injunction in place, and it is arguable that she cannot sell this stock. Therefore, we find the trial court’s directive that she must deplete these assets to be unreasonable. Needs

Scott is employed as an attorney in Monroe, Louisiana, earning over $200,000 a year. Linda has been out of the workforce during the last eight years of their marriage and before that time, had only intermittently worked at various banks. After Scott left, Linda looked for work and in December found a job in the accounting department at Glenwood Regional Medical Center in West Monroe. She earns $10.48 per hour with a salary cap of $13.08 per hour.

Linda’s monthly net earnings at Glen-wood are $1,347.83. She calculates that her expenses exceed her means by $1,132.75 each month. She urges that the trial court should have awarded her $1,000 a month for final spousal support. We again note that Scott agreed to interim support of $1,000 per month. It appears incongruous that Scott now argues that Linda’s needs are less.

| ^Although finding that Linda had sufficient means to support herself, the trial court went further and ruled that certain but not all of Linda’s listed expenses were unnecessary.

In calculating final support, the court should consider all relevant factors. Considering all the relevant factors, including the relative financial positions of the parties, their standard of living, their ages, the duration of the marriage and their earning capacities as well Scott’s agreement to pay $1,000 per month interim support and his clear ability to do so, we do not find Linda’s request unreasonable.

This action by Scott appears hasty. The judgment of divorce provided interim support which would have terminated in six months. Upon a division of the community property, Linda’s share will become clear and under La. C.C. art. 116, Scott can seek a modification of the award of final periodic spousal support. Until such time, however, we find that Linda is entitled to spousal support. Accordingly, via La. C.C.P. art. 2164, we |inhereby award Linda final periodic spousal support in the amount of $1,000 per month.

Conclusion

For the foregoing reasons, we REVERSE the portion of the judgment denying any permanent periodic spousal support and find that Linda Patton is entitled to an award of permanent periodic spousal support in the amount of $1,000 per month.

Therefore:

IT IS ORDERED, ADJUDGED and DECREED that LAWRENCE SCOTT PATTON pay to LINDA GAYE MOORE PATTON final periodic spousal support in the amount of $1,000 monthly retroactive to the date interim support ended. All costs of this appeal are assessed against Lawrence Scott Patton.

STEWART, J., dissents with reasons.

CARAWAY, J., dissents for the reasons assigned by STEWART, J.

L STEWART, J.,

dissenting.

I respectfully dissent from the majority opinion reversing the trial court’s denial of permanent periodic spousal support for the appellant, Linda Gay Moore Patton. In denying the request for permanent support, the trial court found that Linda is voluntarily underemployed and that she has sufficient liquid assets available to meet her needs until she obtains better paying employment. The record supports these findings.

A former spouse who seeks alimony has the burden of proving necessitous circumstances or insufficient means for his or her maintenance. Faltynowicz v. Faltynowicz, 30,605 (La.App.2d Cir.6/24/98), 715 So.2d 90; Guillory v. Guillory, 626 So.2d 826 (La.App. 2d Cir.1993). Earning capacity may be considered in awarding alimony, but that factor alone is not a proper basis for rejecting the award. Faltynowicz, supra. Difficulty in finding employment suitable for the age, training, and ability of the spouse are also proper considerations. Id.

A spouse claiming support may also be required to deplete liquid assets to some extent before being entitled to support payments. Settle v. Settle, 25,643 (La.App.2d Cir.3/30/94), 635 So.2d 456, writ denied, 94-1340 (La.9/16/94), 642 So.2d 194. As discussed in Faltynowicz, supra, there is no exact formula regarding whether or to what extent asset depletion is required of a spouse claiming support. The “rule of reasonableness” must be applied in considering such factors as the value and liquidity of assets; the ages and the mental and physical health of the parties; their other financial responsibilities; their relative abilities, | ¡.education, and work experience; and the potential effect of asset depletion on any children of the marriage. Faltynowicz, supra; Settle, supra.

The trial court is vested with great discretion in making alimony determinations, and such determinations are not to be disturbed absent a manifest abuse of discretion. Settle, supra.

Linda Patton is a 49-year old college graduate with some work experience, particularly in the banking industry. The record establishes that she conducted a very short job search of less than a month which resulted in a job at Glenwood Regional Medical Center paying $10.48 an hour as of the time of trial. Patton, has made no further efforts to obtain a higher paying job even though such jobs may be available. In her testimony, Linda stated that she had gotten a letter about taking a test for a job at State Farm. However, Linda had already started the job at Glen-wood and did not follow up with State Farm. The record dohs not show that Linda’s age, training, or abilities have caused her any particular difficulty in obtaining employment since re-entering the workforce. The trial court found that Linda took the first job offered to her but that she might easily find a higher paying job based on her education, work history, abilities, and resume! The record supports this finding.

There is also ample support in the record for the trial court’s finding that Linda has a reasonable amount of liquid assets available to meet her needs. In addition to her income, Linda has slightly less than $80,000 in a savings account and shares of stock valued at $96,000 or more as of the time of trial. As stated in the majority opinion, Linda unilaterally sold her |ahalf of stocks from a Fidelity investment account and received $153,000 in cash. She later put $30,000 in a savings account and reinvested the remainder for retirement. The invested funds had apparently incurred some losses as of the time of trial. Linda’s testimony clearly indicates that she wanted to reinvest the money in Cen-turytel stock because she felt it was a good retirement tool.

The trial court believed that Linda could utilize these funds as necessary to cover her expenses until she obtains a better paying job. This is not unreasonable. Although the trial court issued a preliminary injunction in the judgment of divorce to prohibit either party from disposing of community property prior to the petition, there is also information in the record indicating that the parties split certain accounts, one such account being the Fidelity account from which Linda sold her half of the stocks. Linda has employment from which she derives income, and she has these additional liquid assets available for her disposal. In addition, Linda is educated and able to work. She has no major financial responsibilities other than care for herself, and there are no children who might potentially be impacted by asset depletion. On this record, Linda failed to meet the burden of proving either necessitous circumstances or insufficient means for her maintenance.

For these reasons, I find no abuse of the discretion in the trial court’s judgment denying permanent support and must respectfully dissent.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, CARAWAY, and PEATROSS, JJ.

Rehearing denied.

STEWART and CARAWAY, JJ., would grant rehearing.

      . The trial court denied the following requested monthly expenses as unnecessary.
      1) Cablevision — $43.58
      2) Cellphone — $35.00

        3) Facials, manicures, and pedicures— $97.75
      4) Educational expenses — $197.21
      5) Internet — $23.90
      6) Pet expenses — $24.67
      7) Credit cards — $41.00.
      The trial court reduced the following requested monthly expenses:
      1) Lawn care — from $131.25 to $45.00
      2) Clothing allowance — from $327.55 to $300.00
      3) Household supplies — from $148.68 to $118.68
      4) Food — from $302.10 to $300.00.


author: |, GASKINS, J.

text:
    James Michael HAYS and Belinda Hays, Plaintiffs-Appellants, v. STATE of Louisiana, et al., Defendants-Appellants.
    No. 37,229-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.
    Rehearing Denied Oct. 23, 2003.

      Kitchens, Benton, Kitchens & Newell, by Daniel W. Newell and Paul Kitchens, for Plaintiffs-Appellants, James Michael Hays and Belinda Hays.
    Stamey & Miller by Joseph B. Stamey and David A. Peterson, for Defendants Appellant, State of La. Through The Board of Supervisors of The University of Louisiana System on Behalf of Grambling State University.
    Hudson, Potts & Bernstein, by Jay P. Adams, for Defendant-Appellee, Town of Grambling.
    Gold, Weems, Bruser, Sues & Rundell, by Edward E. Rundell, for Third Party Defendant Meyer, Meyer, Lacroix and Hixson, Inc.
    Before GASKINS, PEATROSS and MOORE, JJ.
   |, GASKINS, J.

This appeal arises from the alleged discharge of untreated or improperly treated sewage into a stream that crosses the plaintiffs’ property. Trial was bifurcated such that the trial judge determined the liability of and damages assessed against the Town of Grambling (“the Town”), while a jury determined liability and damages as to the other parties. As a result of this bifurcation, the jury awarded a total of $145,000 in property damages and assessed 44 percent fault against Grambling State University (GSU), resulting in a judgment of $63,800 against that entity. The trial judge agreed with the jury’s allocation of fault, but found that the contamination warranted only general damages of $10,000, thus resulting in an award of $5,600 against the Town for its 56 percent of fault.

GSU appeals from the trial court judgment on the merits, as well as a separate judgment assessing it with $36,515.72 of the plaintiffs’ expert witness fees. The plaintiffs appeal from the portion of the judgment on the merits which assessed only $5,600 in general damages against the Town.

For the reasons set forth below, we amend the judgment on the merits to reduce the award of damages against GSU from $63,800 to $4,400; in all other respects, that judgment is affirmed. We also amend the judgment on the plaintiffs’ motion to reduce the costs assessed against GSU to $16,506.92 and to raise the costs assessed against the Town from $1,000 to $21,008.80.

FACTS

The Hays family owns 70 acres of pastureland in Lincoln Parish which is south of the Town and GSU. A stream known as the Red-Wine |¡>Creek originates in the Town just north of GSU and then flows south through the Town and GSU onto the Hays property. The Hays family contends that the Town and GSU discharged polluted water from their water treatment facilities or sewer lines into the Red-Wine Creek. Another unnamed creek flows east through the Hays property and merges with Red-Wine Creek; this unnamed creek does not receive any of the polluted water.

A prior suit concerning the alleged pollution of this tract of land was brought by members of the Hays family. (Although the current owner, James Michael Hays, was not a party to that suit, his parents were.) This suit was settled on August 25, 1994.

While this suit was pending, James Michael Hays purchased the property in question from his parents in 1998 for $175,000. In 1995, Mr. Hays undertook a remediation project to clean up the property around Red-Wine Creek. The bottom of the creek and the banks were dug up and the sludge was spread out on the pastureland to dry out. The creek was then straightened. However, over time the creek began to meander again. Mr. Hays estimated that this remediation, which was performed by employees working for his company, cost about $55,000.

The Town and GSU formerly had separate sewage treatment facilities, each operating oxidation ponds which discharged their treated water into Red-Wine Creek. In the early 1990’s, they reached an agreement to jointly build a $2.4 million state-of-the-art sewage treatment plant. The plant was to be operated by the Town while GSU paid an annual user fee. |sThe plant went on line in July 1995, and GSU switched over to the new facility in December 1995.

On August 28,1995, about a month after the new plant began operating, Hays and his wife, Belinda Hays, filed suit against GSU and the Town, alleging that untreated or improperly treated sewage was being discharged into Red-Wine Creek either from the treatment facilities of the defendants or directly from sewer lines. They asserted that, while they initially believed that the settlement in the prior suit had rectified the situation, they later learned that the pollution was continuing. In June 1996, the Louisiana Department of Environmental Quality (DEQ) was added as a defendant; however, it was released from the suit by a joint motion of dismissal in January 2001.

The Town filed a third-party demand against Meyer, Meyer, Lacroix and Hix-son, Inc. (“MMLH”), and Mclnnis Brothers Construction, Inc. (“Mclnnis”). It contended that it had relied upon them in the design, construction, start-up procedures, and maintenance of its waste water treatment plant. Although Mclnnis was later dismissed from the suit, MMLH, the consulting engineering firm that designed the new sewage treatment plant, remained as a third-party defendant.

In response to exceptions of res judica-ta, the trial court ruled that the plaintiffs could only litigate claims arising from tor-tious conduct occurring after August 25, 1994, the date when the prior lawsuit was settled.

In July 2001, GSU filed a motion in limine to restrict and/or strike the testimony of two of the plaintiffs’ witnesses. It alleged that under the \APaubert criteria, the testimony of Dr. James Smith and Pat Eddings should be prohibited or restricted. The motion was denied.

A bifurcated trial was held from July 30 to August 6, 2001. A jury heard the claims against GSU and MMLH. However, pursuant to La. R.S. 13:5105, the trial judge heard the claims pertaining to the Town. (The jury was apparently unaware of this bifurcation.)

The plaintiffs presented evidence of high levels of fecal coliform in the Red-Wine Creek, as well as findings of elevated levels of arsenic and selenium on their property. According to expert testimony, fecal coliform is a bacteria contained in untreated or partially treated human waste or sewage. Arsenic and selenium are heavy metals which can occur naturally; however, if present in high enough levels, they can be hazardous to organic life and human beings. According to the plaintiffs’ expert, Dr. Smith, remediation of the area around the creek to remove the selenium contamination would cost about $400,000. (He conceded that the arsenic levels were insufficient to require remedy.) Testimony was given about the noxious odors emanating from the stream due to the polluted water and the occasional presence of “sewage artifacts,” a term referring to such flushable items as toilet paper, condoms and tampons. On the other hand, the defendants presented evidence that the selenium levels on the property were not sufficiently elevated to pose a hazard. GSU’s expert, Dr. Pressley L. Campbell, testified that no remediation was necessary. However, if it were, Dr. Campbell opined that it could be accomplished for $90,000.

The jury found that both GSU and the Town were “at fault, as to acts or omissions occurring after August 25, 1994 with regard to the environmental condition” of the plaintiffs’ property and that the fault of each was a legal cause of damages to the plaintiffs. It also found no fault as to the plaintiffs. GSU was assessed with 44 percent of the fault and the Town with 56 percent. However, no fault was assessed against MMLH. The jury awarded property damages of $145,000 but no general damages.

The trial court issued a written opinion in which it made numerous findings of fact. It found that after August 25, 1994, the Town deposited partially or improperly treated sewage in Red-Wine Creek which caused the fecal coliform levels in the creek to exceed DEQ limits. However, these levels decomposed in hours and caused no permanent environmental damage. Sewage artifacts were deposited along the creek by the defendants. Occasionally there were fish kills and noxious odors. As a result, the Hays property near the creek was unsuitable for any recreational purpose.

The trial court found that the Town breached its duty to the plaintiffs by releasing partially or improperly treated sewage with elevated levels of fecal coli-form, sewage artifacts and pungent odors on the Hays property. However, the court found that the evidence did not demonstrate that the selenium found on the Hays property was attributable to any action by the Town since August 25, 1994. Thus, it awarded $10,000 in general damages for mental anguish, embarrassment and loss of use of the property during | fiperiods of discharge of improperly treated sewage. Agreeing with the jury’s allocation of fault, the trial court cast the Town for 56 percent of the $10,000 award.

Judgment was signed on March 20, 2002. GSU was cast in judgment for $63,800 (or 44 percent of the $145,000 awarded by the jury). The Town was cast for $5,600 (or 56 percent of the $10,000 awarded by the trial judge). Costs were assessed against the defendants according to their percentages of fault.

GSU filed a motion for JNOV, contending that the evidence was overwhelmingly in its favor as to quantum and the issue of whether selenium was present. The motion was denied.

The plaintiffs filed a motion to fix costs. They requested that the defendants be required to pay their expert witness fees and costs. These included $14,493.75 for Larry Lott, Jr. and Mid-South Analytical Labs, Inc.; $19,021.97 for Dr. James Smith and Mid-South Environmental Services, Inc.; and $4,000 for Robin Beck and the Appraisal Group. Both the Town and GSU opposed the motion to fix costs. The trial court taxed the entirety of the expert fees as costs in the amount of $37,515.72; it found that none of the costs of the expert witnesses should be borne by the plaintiffs. Since the Town prevailed on the major issue of whether the plaintiffs’ property sustained metal contamination, the court assessed to it only the portion of the expert fees relating to the presence of fecal coliform, or $1,000. The balance of the fees, or $36,515.72, was assessed against GSU.

|7The plaintiffs appealed from the judgment against the Town. GSU appealed from both the judgment on the merits and the judgment on the motion to fix costs.

STANDARD OF REVIEW

The initial inquiry we must resolve is the standard of review to be applied in this bifurcated case with inconsistent results.

In Thornton v. Moran, 341 So.2d 1136 (La.App. 1st Cir.1976), the appellate court reviewed contradictory judgments rendered in a bifurcated trial under the manifest error standard and affirmed. The Louisiana Supreme Court peremptorily granted writs, holding that in such a bifurcated case, an intermediate appellate court was required to resolve the differences in the factual findings between the jury and the judge and render a single opinion based upon the record. See Thornton v. Moran, 343 So.2d 1065 (La.1977).

Since Thornton, supra, the various appellate courts have taken different approaches to accomplishing the supreme court’s mandate to reconcile conflicting decisions in bifurcated trials.

The Town argues that there was no conflict between the findings of the jury and the judge in the instant case because, as a matter of law, the jury had no right to adjudicate the fault of the public defendant, and thus there was no need to harmonize the conflicted findings. Lasswell v. Matlock, Inc., 527 So.2d 1199 (La.App. 3d Cir.1988), writs denied, 532 So.2d 104, 105 (La.1988); Ourso v. Grimm, 92-1274 (La.App. 3d Cir.1/5/94), 630 So.2d 963, writs denied, 94-0346 (La.3/25/94), 635 So.2d 230, and 94-0339 (La.3/25/94), 635 So.2d 231. The Town asserts that the correct standard of review is manifest error.

Both the plaintiffs and GSU suggest that the methodology set forth in Eppinette v. City of Monroe, 29,366 (La.App.2d Cir.6/20/97), 698 So.2d 658, is the appropriate way to harmonize the inconsistent findings. There we adopted the procedure utilized by the First Circuit on remand in Thornton v. Moran, 348 So.2d 79 (La.App. 1st Cir.5/9/77), writs denied, 350 So.2d 897(La.1977), 350 So.2d 898 (La.1977), 350 So.2d 900 (La.1977). In Eppinette, 698 So.2d at 665, we stated:

In Thornton v. Moran, supra, the court held that an intermediate appellate court, in bifurcated cases, is required to reconcile or resolve any differences in the factual findings between the trial judge and the jury by determining which witnesses are more credible, to ascertain which of the triers of fact accorded a more reasonable measurement to the evidence in reaching a decision, and to decide which of the said triers of fact gave a more reasonable evaluation and drew a more reasonable inference from the facts, in order to harmonize the judgments. Said another way, after concluding that a conflict exists, there must then be a determination that the findings of fault and apportionment and the award of damages were reasonable and not manifestly erroneous. In the event that the finding by one fact finder is manifestly erroneous and the other is not, then the manifestly erroneous determination is discarded and the finding which is not manifestly erroneous will stand.
Finally, if conflicting findings are not manifestly erroneous, then the court must, after a careful review of the entire record, examine each inconsistent reasonable finding to determine which fact finder’s finding is more reasonable. Thornton v. Moran, supra.

We agree with the appellants. We will apply the standard of review set forth in the Eppinette case, and determine whether the findings are | Smanifestly erroneous and, if both are not manifestly erroneous, which is more reasonable.

DAMAGES

We note at the outset that the parties do not argue about the percentages of fault assigned in this case. The jury assessed 44 percent fault to GSU and 56 percent to the Town; in his opinion, the trial judge adopted these percentages. Given the superior ability of the Town to regulate the sewage through its control of the sewage treatment plant after it opened in 1995, such an allocation was not clearly wrong.

On the issue of damages, the plaintiffs assert that, as to the Town, the trial court erred in awarding them no property damages and only $10,000. in general damages. GSU contends that the jury erred in awarding excessive damages of $145,000 in property damages.

Although the jury and the judge each concluded that both the Town and GSU bore fault for the “environmental condition” of the plaintiffs’ property, it is apparent that they reached these conclusions under different theories. The judge states in his written opinion that he did not find that the plaintiffs had carried their burden of proof as to selenium contamination and awarded damages on the basis of the unpleasant consequences of the elevated fecal eoliform levels and the presence of sewage artifacts. However, from the amount of the damages it awarded, it is clear that the jury found more than just problems related to fecal eoliform. The jury apparently found some degree of selenium contamination as the amount awarded was the equivalent of the cost of the 1995 remediation and the |inprojected cost of remediation given by Dr. Campbell, GSU’s expert. Consequently, we find that a conflict exists as per Eppinette, supra.

In order to recover for selenium contamination, the plaintiffs must prove that there was a causal connection between the presence of selenium on their property and the defendants’ facilities and that the contamination occurred after August 25, 1994, the settlement date of the prior suit. After a close review of the record, we find that the jury’s determinations on these issues were manifestly erroneous.

In the early 1990’s, water entering and leaving the Town’s old oxidation pond was tested for selenium; the levels were “below detection limits.” There was no testing for selenium at GSU’s old oxidation pond. Dr. Smith indicated that metals are usually heavier than water and normally metals and sludge end up on the bottom of a treatment or oxidation pond. According to John William Moore, a registered professional environmental engineer who was a partner at MMLH, the sludge was on the bottom of the oxidation pond and would have to be pushed out of the pond by some mechanical means. As to the new treatment plant, Dr. Smith testified that most of the metals — like selenium — should end up in the sewage blanket which would be in the sludge. Mr. Moore testified that the sludge ends up in drying beds; after drying, it is disposed of in a landfill. However, there is no indication that the sludge at the new plant was tested for selenium.

Although selenium was found at various points on the Hays property in the vicinity of Red Wine Creek, the amounts were well below the ^standard requiring cleanup under the Risk Evaluation and Correction Action Program (RECAP) promulgated by DEQ.

Additionally, even if the evidence presented by the plaintiffs showed that the selenium was deposited on the plaintiffs’ land as a result of the defendants’ fault, it does not demonstrate that these actions occurred after the settlement of the prior suit in August 1994. No tests were conducted after the 1995 cleanup to verify that all selenium (assuming there was any on the property at that time) had been removed. We have only Dr. Smith’s testimony that if the cleanup involved the removal of three to four feet of the creek bottom, the contaminants should have been removed. According to Mr. Hays, during the cleanup the soil removed from the bottom and banks of the creek was spread out on the property to dry out and the creek itself was straightened. However, the record suggests that the creek later reverted to its former meandering path; there is no way of knowing with any degree of certainty whether the selenium found on the property was newly deposited or if the creek merely wandered back across the areas where soil contaminated prior to August 25, 1994, was spread during the 1995 remediation.

Since no tests were performed near the time of the August 1994 settlement or the 1995 cleanup, there is no support for the plaintiffs’ contention that the selenium levels on the property were rising and would soon reach a hazardous level. While the plaintiffs conducted testing for |12heavy metals like selenium on their property in 2000 and 2001, they failed to retest any of the sites with elevated readings to document that there was an increase from one testing period to another.

Having found that the jury’s findings were manifestly erroneous, we now examine the judge’s findings of fact. The record supports the judge’s conclusion that the selenium was either naturally occurring or caused by an unknown phenomenon unrelated to the defendants. Strong support for this position is found in the fact that the unnamed stream on the Hays property was not in a position to receive drainage from the defendants, yet it had the second highest reading for selenium on the total metals test.

The trial court has much discretion in awarding damages in tort cases. La. C.C. art. 2324.1. Because of this vast discretion granted the' trial court, an appellate court should rarely disturb an award of general damages. Only when the record clearly shows that the trial court abused its discretion in awarding damages in either direction beyond that which a reasonable trier of fact would assess for the effects of a particular injury on a particular party under the particular circumstances should an appellate court either increase or decrease the award. 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); Morris v. Flores, 36,932 (La.App.2d Cir.3/7/03), 840 So.2d 1257.

As to the trial judge’s finding that the Hays property sustained no selenium contamination attributable to the defendants, we find no manifest 113error. Accordingly, the trial judge’s decision to not award property damages in favor of the plaintiffs was correct.

The evidence in this record reveals that since August 1994, untreated or improperly treated sewage occasionally made its way from the defendants’ facilities to the Red-Wine Creek. As a result, the plaintiffs endured foul odors and the unpleasant presence of sewage artifacts on their property. Therefore, the trial judge was not manifestly erroneous in awarding general damages to the plaintiffs for their resulting inconvenience.

As to the amount of $10,000 in general damages awarded by the judge, we are unable to find that this amount is abusively low. While the odors and the sewage artifacts found on the Hays property were unquestionably distressing to the plaintiffs, the evidence demonstrated that the fecal coliform levels quickly dissipated.-

Based on the foregoing, we find that the jury’s award of $145,000 in property damages and no general damages is manifestly erroneous. The trial judge’s award of $10,000 in general damages and no property damages is supported by the record and is not manifestly erroneous. Therefore, pursuant to Eppinette, supra, we discard the jury’s manifestly erroneous determination and affirm the trial judge’s award. Applying the percentages of fault found by both the jury and the judge, general damages of $4,400 are assessed against GSU and $5,600 against the Town.

I u JNOV

GSU contends that the trial court erred in denying its motion for JNOV where the jury’s verdict and the judge’s ruling in this bifurcated trial were inconsistent as to the alleged environmental contamination.

A motion for a JNOV may be granted only if the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable jurors could not arrive at a contrary verdict. Powell v. Regional Transit Authority, 96-0715 (La.6/18/97), 695 So.2d 1326. If the opposing evidence is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions, the motion for JNOV should be denied. Powell, supra; Kennedy v. Thomas, 34,530 (La.App.2d Cir.4/4/01), 784 So.2d 692.

In Davis v. Witt, 2002-3102 (La.7/2/03), 851 So.2d 1119, the Louisiana Supreme court stated that JNOV was not a procedural tool to reconcile conflicting decisions where reasonable minds could differ with respect to the evidence.

In denying the motion for JNOV, the court stated that it could not conclude that, in view of the expert testimony, the instant case was such that a reasonable mind could not have concluded as the jury did. Therefore, as stated in the Davis case, JNOV was not the appropriate method to reconcile the inconsistent findings in this bifurcated trial.

LsDAUBERT MOTION

GSU also argues that the trial court erred in denying its Daubert motion to restrict or exclude the testimony of the plaintiffs’ experts. It contends that opinions of the plaintiffs’ expert in environmental science and hazardous waste treatment, Dr. James Smith, were based on scientific reasoning which did not meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 118 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993).

La. C.E. art. 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Comment (d) to La. C.E. art. 702 states that the trial judge should have “[bjroad discretion ... accorded ... in his determination as to whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert.”

Louisiana has adopted the United States Supreme Court’s interpretation of Federal Rule of Evidence 702, which mirrors La. C.E. art. 702. Foret, swpra. Daubert calls upon trial courts to perform a gatekeeping function by deciding whether the expert scientific evidence or testimony is both reliable and relevant. Daubert, 509 U.S. at 589, 113 S.Ct. at 2795; Cleland v. City of Lake Charles, 2002-805 (La.App. 3d Cir.3/5/03), 840 So.2d 686.

The trial court in fulfilling its gatekeeping function with respect to admitting expert testimony should consider the following non-exclusive factors: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-2797.

At the hearing on its motion in limine, GSU presented the testimony of its expert, Dr. Campbell. He testified that the toxicity characteristic leaching procedure (TCLP) utilized by the plaintiffs’ expert, Dr. Smith, had not gained any general acceptance in the scientific community as a proper method by which to determine the source of selenium. However, he admitted that the tests run by the plaintiffs were proper and valid tests. He only disputed Dr. Smith’s use and interpretation of the TCLP, i.e., the conclusions Dr. Smith drew from them about the source of the arsenic and the selenium. However, Dr. Smith testified at the hearing that he was not trying to find the source of the selenium with this test. The trial court found that the objection about Dr. Smith’s use and interpretation of the TCLP results went to the weight of the testimony rather than to its admissibility and it denied the motion in limine.

GSU’s objection to Dr. Smith’s testimony was limited in scope to his use and interpretation of TCLP. GSU’s own expert admitted that the test was valid. We find no error in the trial court’s denial of the Daubert motion.

INJURY INSTRUCTIONS

GSU complains of the trial court’s failure to give a requested jury instruction which would have directed the jury that no award be made exceeding the value of the property. An appraiser presented by GSU testified that the property was worth only $105,000. However, the plaintiffs’ appraiser valued it at $168,000.

Adequate jury instructions provide the correct principles of law for the jury to apply to those issues reasonably raised by the pleadings and evidence. The trial court has great discretion in composing jury instructions and is not required to give the exact instructions submitted by a litigant. Posey v. Singletary, 34,913 (La.App.2d Cir.9/28/01), 795 So.2d 1249. Trial courts are given broad discretion in formulating jury instructions, and it is well accepted that a trial court judgment will not be reversed so long as the charge correctly states the substance of the law. Nicholas v. Allstate Ins. Co., 1999-2522 (La.8/31/00), 765 So.2d 1017.

As a general rule of thumb, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the differ-encejjgbetween the value of the property before and after the harm. Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Service Co., 618 So.2d 874 (La.1993). In the instant case, the instruction given on property damage and value was a verbatim recitation of this language from Roman Catholic Church of Archdiocese of New Orleans, supra.

The jury instructions here were adequate and correctly reflected the law as set forth in Roman Catholic Church of Archdiocese of New Orleans, supra. We find no error.

MOTION TO FIX COSTS

As to the award of expert fees as costs, GSU claims that the trial court abused its discretion in taxing the full amount of expert fees as costs. It argues that a large portion of the fees was not allowable under La. R.S. 13:3666.

Witnesses called to testify as expert witnesses shall be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. La. R.S. 13:3666; Mount Mariah Baptist Church, Inc. v. Parnell’s Associated Electric, Inc., 36,361 (La.App.2d Cir.12/20/02), 835 So.2d 880, writ denied, 2003-0555 (La.5/2/03), 842 So.2d 1101. An expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work. Ore a v. Scallan, 32,622 (La.App.2d Cir.1/26/00), 750 So.2d 483. The trial judge has great discretion in awarding and fixing costs and expert fees. A trial court’s assessment of costs can be reversed by an appellate court only |19upon a showing of abuse of discretion. Mount Mariah Baptist Church, Inc., supra; Orea, supra.

Factors to be considered by the trial judge in setting an expert witness fee include time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Additional considerations include the helpfulness of the expert’s report and testimony to the court, the amount in controversy, the complexity of the problem addressed by the expert and awards to experts in similar cases. Mount Mariah Baptist Church, Inc., supra.

In taxing all of the plaintiffs’ invoices as costs, the trial court considered “the time spent while testifying, time spent in preparation for trial, the extent and nature of the work involved, the knowledge and attainment of the experts, the amount in controversy and the complexity of the issues addressed.” The court specifically found that the testimony presented by the plaintiffs’ experts aided the triers of fact and “was essential to an adequate understanding of the factual issues presented.” Furthermore, the court concluded “[a]fter much thought and deliberation” that the plaintiffs should not bear any of the expert costs.

We find no abuse of the trial court’s discretion in its decision to assess all of the plaintiffs’ invoices as costs. The judge, who sat as one of the two triers of fact in this complex case, specifically found that the testimony of the plaintiffs’ experts was highly beneficial. A review of the |2ninvoices does not indicate that either the fees charged or the amount of testing performed in preparation for trial was excessive.

However, we hold that the expert witness fees assessed as costs under La. R.S. 13:3666 should have been awarded against the defendants according to their percentages of fault. An appellate court may “render any judgment which is just, legal, and proper upon the record on appeal,” and tax costs as it considers equitable. La. C.C.P. art. 2164. In light of our amendment of damages, we find that it is not equitable to require GSU—which was only 44 percent at fault—to bear responsibility for $36,515.72 of the expert fees cast as costs while the Town—which bore 56 percent fault—to pay only $1,000. Therefore, we direct that GSU be ordered to pay $16,506.92 and the Town $21,008.80 of the $37,515.72 awarded pursuant to the motion to fix costs.

CONCLUSION

The judgment of the trial court is amended to reduce the award of damages against GSU to $4,400. In all other respects, the judgment is affirmed.

The judgment on the rule to tax costs is amended to assess $16,506.92 against GSU and $21,008.80 against the Town.

Costs of this appeal are assessed equally between the Hays, GSU and the Town of Grambling.

AMENDED AND AS AMENDED AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, PEATROSS, DREW, and MOORE, JJ.

Rehearing denied.

      . The parties speculate that the amount of property damages was derived from the $55,000 cost of the 1995 remediation by Mr. Hays and the $90,000 estimate given for future selenium remediation by GSU’s expert, Dr. Campbell.

      . The Louisiana Supreme Court has acknowledged the conflict between the circuits in several opinions but has declined to address the issue. See Powell v. Regional Transit Authority, infra, and Davis v. Witt, infra.

      . We note with interest that the amount awarded by the jury does not approach the figure of $400,000 suggested by the plaintiffs’ expert for extensive selenium remediation.

      . Although the motion for JNOV also mentioned new trial or remittitur in the alternative, counsel for GSU conceded at the hearing on the motion that "the real focus is simply the JNOV.” Thus, in this assignment we address only the motion for JNOV.


author: |, CARAWAY, J.

text:
    Steven TEMPLE, Giddis Leon Temple and Nellie Temple, Plaintiffs-Appellees, v. Edward L. SHERMAN, Defendant-Appellant.
    No. 37,668-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.
    Rehearing Denied Oct. 23, 2003.
    McGlinchey Stafford, PLLC, by Dan E. West, Margaret Diamond, for Defendant-Appellants, Edward L. Sherman and Clarendon America Insurance Company.
    Travis M. Holley, Bastrop, for Plaintiffs-Appellees.

      Musa Rahman, Baton Rouge, for Inter-venor-Appellee, LWCC.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   |, CARAWAY, J.

The plaintiffs in this personal injury suit received injuries in a one-vehicle accident while returning to their home in Monroe from a job in south Louisiana. The accident occurred when the company van, driven by a third employee, hydroplaned off an interstate highway and into a tree. During the three-month work project, the employer had provided the van to the employees who traveled to and from the job site. A jury found one employee, who was guaranteed a forty-hour work week, to have been within the course and scope of his employment and rejected his tort claim. A second employee, who was an hourly wage-earner and not entitled to compensation for the trip, was awarded tort damages for the injuries he received in the accident upon the determination that he was outside the course and scope of his employment. Finding that the Worker’s Compensation Act applies to immunize the employee/driver and the employer’s insurer from tort liability, we affirm in part and reverse in part.

Facts

On July 26, 2001, Giddis Leon Temple (“Leon”) and his son, Steven, were equipment operators for Hartec Corporation, a Baton Rouge, Louisiana general construction company. Edward Sherman worked as a pipe layer for Hartec. The three Hartec employees from the Monroe, Louisiana area formed part of the “Monroe crew” which had been working a job in Mandeville, Louisiana, for approximately three months. Because of the 275-mile distance between the job site and their homes, the Hartec employees remained in Mandeville during the week, generally working | Jour, ten-hour days. For their overnight accommodations, Hartec provided the employees a substantially-furnished apartment. Additionally, for travel to and from their homes and the apartment, Har-tec provided the crew a company van to use for the duration of the project.

At no time during the Mandeville project had any of the three employees driven their own vehicles to the job site. Steven, an hourly-wage employee, was not paid for travel time. Leon was guaranteed a forty-hour work week even if the work time in Mandeville was shortened due to bad weather. Hartec maintained the van and paid for fuel and insurance for the vehicle. Only Sherman and Leon were authorized to drive the van and would generally split the driving responsibilities during each trip. In compliance with company policy prohibiting personal use of the van, Leon kept the van parked at his home on the weekends. In the early morning hours of every Monday morning, Leon and Steven would usually pick Sherman up at his home and the three would drive to Mande-ville in time for work at 7:00 a.m. Normally, the three would return to the Monroe area after working hours on Thursday evenings unless weather necessitated work on Fridays.

On Thursday morning, July 26, 2001, inclement weather prevented the three men from going to the job site. Work was canceled for the day at approximately 7:00 a.m. After receiving their paychecks, the three men departed for Monroe in the rainy weather. Sherman drove the van, Leon sat in the front passenger seat and Steven sat behind Sherman. During the trip, laboth Leon and Steven fell asleep as the rain persisted at varying intensity. At approximately 10:00 a.m., the van neared the Brookhaven, Mississippi exit on Interstate 55. Although the rain had then subsided, the vehicle encountered a puddle of water on the highway that caused it to hydroplane off of the roadway into a tree. The impact caused the van door to open, throwing both Steven and Leon outside the van. Both sustained injuries as the result of the accident.

Steven and Leon and his wife, Nellie, instituted this action against Sherman and Clarendon America Insurance Company (“Clarendon”), Hartec’s automobile liability insurer, seeking damages for the employees’ injuries. The Louisiana Worker’s Compensation Corporation intervened in the suit seeking reimbursement or recovery of worker’s compensation benefits paid to both plaintiffs.

Following trial, the jury found Sherman 100% at fault in causing the accident but denied Leon’s tort damage claim after finding him to have been within the course of his employment with Hartec. Nevertheless, the jury awarded Nellie Temple loss of consortium damages in the amount of $2,500, and the trial court awarded Leon recovery of the costs for his expert witnesses. Steven was awarded $225,000 in general and special damages after the jury determined that he was not within the course of his employment with Hartec at the time of the accident. All parties sought either a new trial and/or a judgment notwithstanding the verdict on the inconsistent jury verdict. After the trial court denied all motions, both sides to the dispute appealed.

| 4Piscussion

Under the Workers’ Compensation Act, employers are responsible for compensation benefits to employees only when the injury results from an accident “arising out of and in the course of his employment.” La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, 02-1539 (La.7/2/03), 851 So.2d 1135. The employer and the negligent employee are given immunity from civil liability for employment-related accidents covered by the Act. La. R.S. 23:1032. Generally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course of his employment, and thus, are not compensable under the Act. One exception to the going-and-coming rule set forth by the jurisprudence occurs when “the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses.” McLin, supra, and cases cited in fn. 1.

A claim by the spouse of an injured worker for loss of consortium is barred when the injury is covered by workers’ compensation. Whiddon v. Livingston Parish Council, 00-1349 (La.App. 1st Cir.9/28/01), 809 So.2d 421, writ denied, 01-2893 (La.1/25/02), 807 So.2d 837.

In Phillips v. Epco Carbon Dioxide Products, Inc., 35,740 (La.App.2d Cir.2/27/02), 810 So.2d 1171, writ denied, 02-0979 (La.6/7/02), 817 So.2d 1146, this court had the occasion to review the jurisprudential development of this exception to the going-and-coming rule. We cited several cases where employees were injured while being transported from 15work in company-owned vehicles, thus placing the employee within the coverage of the Act. Whether the employer was paying the employee an allowance for the actual mileage of the specific trip or a fixed sum for a monthly travel allowance, as was the case in Phillips, was not critical to our determination in that case that the employer had interested himself in the transportation. Additionally, we determined that employer control over the employee during the commute to or from work was not the emphasis of the jurisprudence in fashioning this exclusion. Instead, the exclusion “rests entirely on the fact that the employer has taken an interest in the transportation of the employee as an inducement to the employment agreement.” Id. at 1175.

In Boyte v. Ward North American Insurance Co., 85,929 (La.App.2d 5/8/02), 818 So.2d 293, writs denied, 02-1520 (La.9/20/02), 825 So.2d 1179, 02-1591 (La.9/20/02), 825 So.2d 1181, the job site was many hours away from the employees’ homes so that their trip in furtherance of employment involved much greater risk of travel than the ordinary work commute. Boyte involved a summary judgment where the appellants contended that a material fact dispute remained regarding the employee’s lack of wages for the return trip from the out-of-state job site. Nevertheless, the alleged factual controversy did not require a reversal of the summary judgment in view of the injured employee’s use of a company vehicle driven by his fellow employee. Just as the employer had surely interested himself in the driver’s transportation to the distant work site, the injured passenger/employee was also within the exclusion to the going-and-eom-ing | ¿rule, and the accident was found to have arisen out of and in the course of employment.

In this case, Leon and Steven attempt to distinguish these cases by arguing that on the morning of the accident they had not gone to the job site in Mandeville and performed work for their employer. Thus, they argue that they were not traveling from work at the time of the accident and were thus outside the “course of employment.”

This time and place distinction suggested by the plaintiffs fails to remove them from the course of their employment. The employment benefit of furnishing the company van was to defray the cost to all the Monroe employees of the long trip to and from Mandeville each week. The employees were on that trip when the accident occurred, having been notified by their employer on the morning of the accident that work had been suspended for the week. The risk of an accident on a long drive was incident to the plaintiffs’ employment, and their leaving for Monroe following the company’s decision to suspend work, regardless of the performance of no work on that date, placed their return commute in the course of employment.

Finally, the assessment of Leon’s expert witness costs against the defendants is reversed. Under La. C.C.P. art. 1920, the defendants were not cast in judgment for Leon’s claims, and we find no separate justification for the assessment in this case. Hodnett v. Hodnett, 86,532 (La.App.2d Cir.9/18/02), 827 So.2d 1205.

{^Conclusion

Based upon the jurisprudential standard for the employer taking an interest in the transportation of the employee to and from the job site and the facts concerning the employees’ return trip to Monroe, we find that the jury’s verdict that Steven was outside the coverage of the Act was clearly wrong and manifestly erroneous and the judgments against the defendants regarding the claims of Steven are reversed. The verdict dismissing the claim of Leon is affirmed, and the assessment of Leon’s expert costs by the trial court against the defendants is reversed. Likewise, because Leon was covered under the Act, the judgment in favor of his wife, Nellie, is reversed. Costs of appeal are assessed to plaintiffs.

AFFIRMED IN PART, REVERSED IN PART.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, CARAWAY, and PEATROSS, JJ.

Rehearing denied.

      . Hartec also provided a one-ton truck for employee travel to and from the apartment and job site.


author: 11 GASKINS, J.

text:
    Elaine MURRAY, Plaintiff-Appellee, v. GERMAN MUTUAL INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 37,697-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.
    Rehearing Denied Oct. 23, 2003.
    Noah, Smith & Newman, L.L.P., by Jay B. Mitchell, for Appellant German Mutual Insurance Company.
    Casten & Pearce, by Marshall R. Pearce, for Appellant State Farm Mutual Automobile Insurance Company.
    Street & Street, by C. Daniel Street, for Appellee Elaine Murray.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   11 GASKINS, J.

State Farm Mutual Automobile Insurance Company (State Farm), the uninsured motorist carrier of the plaintiff, Elaine Murray, appeals a decision by the trial court finding that the insurance company must pay to the plaintiff’s attorney one-third of the amount recovered in the company’s subrogation claim against the party who injured the plaintiff. For the following reasons, we reverse the trial court judgment.

FACTS

On August 14, 1998, the plaintiff was involved in a traffic accident when a vehicle driven by Doug Zeller turned left in front of her. Ms. Murray was injured and her vehicle was damaged. She was unable to work for approximately one week.

At the time of the accident, Zeller was driving a vehicle belonging to his father-in-law, James L. Edwards, a resident of Ohio. Edwards carried insurance on the car with German Mutual Insurance Company (German Mutual). Edwards allowed his daughter, Susan Edwards Zeller, to drive the car to Louisiana following the death of her mother. The Zellers were in the process of buying the car from Edwards. Mrs. Zeller at first claimed that she did not give permission for her husband to operate the vehicle, but later testified that, in fact he was using the vehicle with her knowledge. Zeller entered a guilty plea to reckless operation of a vehicle and driving without a license in connection with this incident.

Ms. Murray filed a petition for damages on September 10, 1998, naming Zeller and German Mutual as defendants. She claimed that Zeller was completely at fault and sought recovery for personal injury and property ^damages, loss of earnings and earning capacity, increased business expenses, and exemplary damages, claiming that Zeller was intoxicated at the time of the accident. Ms. Murray entered into a contingency fee contract with her attorney entitling him to a one-third interest in and to any and all claims arising out of this incident, and costs. The agreement entitled him to deduct his one-third interest and costs from the proceeds recovered.

German Mutual answered, denying coverage. The company claimed that Zeller did not have permission to drive the vehicle and therefore was not an insured under the policy.

Ms. Murray had $250,000 in uninsured motorist (UM) coverage with State Farm. She made a claim against State Farm due to the denial of coverage by German Mutual. State Farm paid her a total of $180,000 for her damages.

State Farm filed an intervention naming Murray and German Mutual as defendants-in-intervention. The company claimed that German Mutual had a policy on the car driven by Zeller with a $800,000 limit. State Farm claimed that it had made payments to Ms. Murray as her UM insurer and therefore was subrogated to any recovery she received from Zeller or German Mutual. State Farm also sought a declaratory judgment that Zeller was covered under the German Mutual policy.

Ms. Murray filed a supplemental and amending petition on January 8, 2000, adding State Farm as a defendant, claiming that the company was her UM insurer and that it had made partial payment of her claims, but the ^company was in bad faith and had arbitrarily and capriciously refused to make additional payments. She asked for penalties and attorney fees.

In its answer to the UM claim, State Farm asserted that Ms. Murray was partially at fault in causing the accident. State Farm asked for a credit or set-off in the sum of the limits of all insurance policies providing coverage to responsible parties and for credit for all amounts paid by the responsible parties and/or their insurers. The answer was filed on behalf of State Farm by a different attorney than the one who filed the initial petition for intervention.

On December 19, 2000, State Farm and Ms. Murray entered into a partial joint motion to dismiss whereby the plaintiff withdrew her allegations of bad faith and her request for penalties and attorney fees against State Farm. She reserved all other rights against State Farm, Zeller, and German Mutual.

The attorney who filed the original petition of intervention on behalf of State Farm then withdrew and the attorney who filed the answer to the UM claim remained in the case representing the company on both that claim and the intervention. That attorney then filed a supplemental and amending petition of intervention on behalf of State Farm claiming that it made $170,000 in payments to the plaintiff together with $10,000 in medical expenses and claimed subrogation to her rights against German Mutual in the amount of $180,000.

The matter was tried on June 17-21, 2002. The jury found that Zeller had his wife’s permission to drive the car and that she negligently entrusted Lit to him. Therefore, there was coverage under the German Mutual policy. The jury awarded the plaintiff $22,115 in past medical expenses; $5,000 in future medical expenses; $100,000 in past, present, and future pain, suffering, mental anguish, inconvenience, and embarrassment; and $3,000 in past lost earnings. The jury denied her claim for lost future earnings and earning capacity. The total recovery for the plaintiff was $130,115.

On July 26, 2002, a motion was filed for a hearing to determine judgment, claiming that there was a dispute as to whether the plaintiffs attorney was entitled to one-third of the amount recovered by State Farm on subrogation. At the hearing, the plaintiffs attorney claimed that it was because of his efforts that any recovery was made in the case. According to the plaintiffs attorney, where the effort to make the recovery comes from the plaintiff and her counsel, that attorney is entitled to have his recovery out of the amount awarded in the matter.

State Farm argued that it did not merely “ride the coattails” of the plaintiffs attorney. State Farm claimed that the plaintiff granted subrogation for $180,000, the amount paid to her by State Farm. The jury only awarded the plaintiff a little more than $130,000. Therefore, State Farm urged that it is entitled to the entire amount. State Farm maintained that, even though the plaintiff had a fee agreement with her attorney granting him one-third of the recovery in this matter, his fee should have come out of the $180,000 that State Farm had already paid to the plaintiff. State Farm argued that it is not reasonable to additionally award the | Rplaintiffs attorney one-third of the $130,000 awarded by the jury and to which State Farm is entitled by subrogation.

On October 11, 2002, the trial court ruled that the plaintiff should be awarded attorney fees of one-third of the amount recovered by State Farm on the subrogation claim. The trial court signed a judgment granting Ms. Murray recovery of $130,115 against German Mutual and granted judgment in favor of State Farm against Ms. Murray under the subrogation agreement, subject to the plaintiffs attorney fees of one-third of the amount recovered.

State Farm appealed the trial court judgment, arguing that the court erred in holding that a portion of the plaintiffs attorney fees should be assessed against it and, in the alternative, that the trial court erred in the amount assessed as attorney fees.

ATTORNEY FEES

State Farm argues that the trial court erred in holding it liable for a portion of the plaintiffs attorney fees when State Farm hired its own attorney, intervened in the suit, and actively participated throughout the proceedings as both an intervenor and a defendant. This claim has merit.

A party shall recover attorney fees only when authorized by statute or stipulated by contract. L.S. Huckabay, M.D. Memorial Hospital, Inc. v. KPMG Peat Marwick, LLP, 86,775 (La.App.2d Cir.4/9/03), 848 So.2d 1186.

Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art.1983. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. Where factual findings are pertinent to the interpretation of a contract, those factual findings are subject to the manifest error standard of review. Mount Mariah Baptist Church, Inc. v. Pannell’s Associated Electric, Inc., 36,361 (La.App.2d Cir.12/20/02), 835 So.2d 880, writ denied, 2003-0555 (La.5/2/03), 842 So.2d 1101.

In this case, the parties do not dispute that State Farm has a right of subrogation for the $180,000 paid to the plaintiff. Further, the plaintiff has not cited any statutory provision requiring that her attorney fees be paid out of the amount due to State Farm in subrogation. Therefore, the plaintiff cannot claim that she is entitled to have her attorney fees paid out of the recovery granted by the jury by virtue of statutory authority.

We also find that recovery of attorney fees in this matter is not stipulated by contract. Although the plaintiff had a contingency fee contract with her attorney, State Farm was not a party to that agreement. Further, State Farm did not assume liability for the plaintiffs attorney fees due to its subrogation and release agreement with the plaintiff. In the settlement agreement, the plaintiff and State Farm recognized that State Farm paid $180,000 to the plaintiff under the terms of its UM coverage and acknowledged State Farm’s right of subrogation. The plaintiff also released, relinquished, and compromised all claims she had or may have had against State Farm for bad faith, penalties, attorney fees, and any and all claims under the Unfair Trade Practices Act. The document does not specify any agreement between the parties that State Farm would satisfy the |7plaintiffs obligation to her attorney out of the amount recovered in the jury trial, to which the company was subrogated.

Rather, in support of her claim that her attorney fees should come out of the jury award and the remainder then provided to State Farm in subrogation, the plaintiff cited jurisprudence beginning with Moody v. Arabie, 498 So.2d 1081 (La.1986). In Moody, which was a workers’ compensation case, the injured worker filed suit against the tort-feasor. The employer intervened to recoup workers’ compensation benefits paid to the worker. The Louisiana Supreme Court held that an employer or workers’ compensation carrier may be charged with a proportionate share of the reasonable and necessary costs of recovery, including attorney fees, incurred by the injured worker in the suit against the tort-feasor.

The supreme court reasoned that a worker’s entitlement to recover damages from a third party is a property right. The court found that “When an employer pays compensation to a worker who has been injured by the wrongful act of a third person, the employer and the worker become co-owners of a property right consisting of a right to recover damages from a third person.” The court concluded that “[W]ith respect to any cost necessary to the maintenance and conservation of the right, each co-owner is always obliged to contribute in proportion to his interest in the right, and that, with respect to any other litigation costs, each co-owner is responsible for his proportionate part of reasonable and necessary expenses and legal services that accrue to his benefit.” The court held that the reasonable costs |sof recovery are to be apportioned between the worker and employer according to their interest in the recovery.

In Barroca v. Cobb, 95-1651 (La.2/28/96), 668 So.2d 1129, the holding of Moody was expanded beyond the realm of workers’ compensation to subrogation. In that case, a plaintiff was injured in an automobile accident and his health insurer paid his medical expenses. The plaintiff then sued the tort-feasor. The plaintiff informed the health insurer of the pendency of the lawsuit and that it intended to reimburse the insurer from any recovery, minus one-third to be paid to his attorney under a contingency fee contract. The health insurer did not intervene in the suit.

Following recovery by the plaintiff, the insurer objected to the payment of the plaintiff’s attorney fees. The supreme court applied the rationale of Moody to hold that under the principles of subrogation, the insurer and the insured are co-owners of the right to recover the medical ^expenses paid by the insurer. As co-owners, both the insured and the insurer are responsible for the corresponding litigation expenses. The court explained:

However, we hold that, in subrogation cases, an important prerequisite to the assessment of attorney fees is timely notice to the insurer. Timely notice is necessary to allow the insurer to exercise its right to join the action, or bring its own action, and be represented by legal counsel of its own choosing if it so elects. Assessment of attorney fees is justified only when the insurer chooses to rely on the efforts of plaintiff’s counsel.

The court found that an insurer who has timely notice of the insured’s claim, but fails to bring its own action or fails to intervene in the plaintiffs action will be assessed a proportionate share of the recovery costs incurred by the insured, including reasonable attorney fees.

This court has considered the issue of allowing recovery of attorney fees against a subrogee that did not receive notice of the proceedings. In Masters v. State Farm Mutual Automobile Insurance Company, 36,735 (La.App.2d Cir.3/15/03), 840 So.2d 665, writ denied, 2003-1219 (La.6/27/03), 847 So.2d 1276, the plaintiff was injured in an automobile accident. State Farm paid her medical expenses and, under the terms of their insurance policy, was subrogated to the extent of its payment. The plaintiff and her spouse retained an attorney and filed suit against the other driver. The attorney reached a settlement on behalf of the plaintiffs and then demanded that State Farm pay its proportionate share of the attorney fees and costs. State Farm filed a motion for summary judgment to dismiss | inthe demand for attorney fees. This court affirmed the trial court decision granting the motion for summary judgment. We reasoned that the plaintiffs failed to give timely notice so that the insurer had the opportunity to decide whether to exercise its right to join the action or to bring its own action, represented by counsel of its own choosing.

The holdings of Moody and Barreca were limited in Hebert v. Jeffrey, 95-1851 (La.4/8/96), 671 So.2d 904. In that case, a worker who was injured while riding to work in a company vehicle collected workers’ compensation benefits. He then filed suit against an alleged third party tort-feasor as well as a co-employee who was driving the company vehicle when the accident occurred. The plaintiff also sued the employer’s liability insurer. The employer intervened to recover workers’ compensation benefits paid to the plaintiff on the grounds that the plaintiff was not in the course and scope of his employment when the accident occurred. The co-employee was found to be solely at fault in causing the accident and judgment was entered in favor of the plaintiff and against the co-employee and the company’s liability insurer. The plaintiff then sought to recover his attorney fees from his employer under Moody and La. R.S. 23:1103(C).

The court in Hebert stated that the Moody principles are based on fairness and equity. The motivation behind Moody is to correct an injustice whereby the injured employee bore the full expenses of tort recovery while the compensation carrier or its insured reaped the benefits. The court noted that, although it was willing to extend Moody to subrogation in Barreca, it did not feel the same about extending Moody in Hebert where the in-tervenor/employer was essentially an adversary of the plaintiff and the [^plaintiffs lawyer. In that case, the court found that attorney fees were not recoverable from the employer.

Similarly in Degruise v. Houma Courier Newspaper Corporation, 95-1863 (La.11/25/96), 683 So.2d 689, an employee was injured in a company vehicle while in the course and scope of his employment and received workers’ compensation benefits. He filed suit against several parties including the employer’s UM carrier, which was also the workers’ compensation insurer. The insurer intervened to recover workers’ compensation benefits paid to the plaintiff. Recovery was granted against the UM carrier and the plaintiff sought to recover attorney fees from the insurance company in its capacity as workers’ compensation insurer. Under those circumstances, the supreme court refused to require the insurance company to pay the employee’s attorney fees. Citing Hebert, the court refused to extend the Moody doctrine to force a workers’ compensation carrier to pay a portion of a plaintiffs legal fees under La. R.S. 23:1103 where the workers’ compensation carrier and the UM insurer were the same and the UM insurer is the only viable defendant in the case.

In the case sub judice, State Farm had notice that the plaintiff was represented by counsel and chose to enlist the aid of its own attorney to represent its interests in this matter. State Farm’s counsel filed a petition of intervention and a supplemental and amending petition of intervention. He also actively participated in all aspects of the proceedings. Contrary to the plaintiffs arguments, State Farm did not choose to rely on the efforts of | ^plaintiffs counsel. Under the reasoning of Barreca, the assessment of attorney fees against State Farm is not justified.

Further, even though State Farm was an intervenor, it was also a defendant in the present suit in its capacity as the plaintiffs UM insurer. Because State Farm’s position was somewhat adversarial to that of the plaintiff, under Hebert v. Jeffrey, supra, and Degruise v. Houma Courier Newspaper Corporation, supra, the insurer should not be taxed with the plaintiffs attorney fees.

The plaintiff contends that State Farm should have maintained separate attorneys for its subrogation claim and for the defense of the UM claim filed by the plaintiff. However, we find no authority requiring State Farm to maintain separate attorneys under the facts presented here.

As stated above, there is no statutory or contractual authority for imposing the plaintiffs attorney fees upon State Farm. Further, because State Farm did not rely upon the efforts of the plaintiffs attorney in the subrogation claim and was an adversary of the plaintiff on the UM claim, the trial court erred in requiring the insurer to satisfy the plaintiffs attorney fee contingency contract from the jury trial award. Accordingly, the trial court judgment in that regard is reversed.

Because we find that State Farm is not liable for the plaintiffs attorney fees, discussion of the defendant’s alternative argument regarding the calculation of attorney fees is not necessary.

I ^CONCLUSION

For the reasons stated above, we reverse that portion of the trial court judgment finding that the subrogation recovery of the defendant, State Farm Mutual Automobile Insurance Company, is subject to attorney fees of one-third of the amount recovered, owed by the plaintiff, Elaine Murray. We find that State Farm is sub-rogated to the entire amount awarded by the jury, $130,115. Costs in this court are assessed to the plaintiff.

REVERSED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, DREW, and MOORE, JJ.

Rehearing denied.

      . According to the briefs, Zeller is in bankruptcy, therefore there can be no judgment against him.

      . The holding of Moody was later modified and written into the workers’ compensation law in La. R.S. 23:1103(C), which limits the amount of attorney fees to one-third. The provision specifies:
      C. (1) If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor’s recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefitted or augmented the recovery from the third party. The employee as intervenor shall not be responsible for the employer’s attorney fees attributable to post-judgment damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given to the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff. The pro rata share of the intervenor’s costs shall be based on intervenor's recovery of prejudgment payments or prejudgment damages.
      (2) When recovery of damages from a third party is made without filing of a suit, the employer shall be responsible for an amount, not to exceed one-third of his recoveiy on pre-compromise payments, for reasonable legal fees and costs incurred by the attorney retained by the employee or his dependent in pursuit of the third party matter. The responsibility for payment of this amount shall exist only if there is written approval of the compromise by the employer, his compensation carrier, or the compensation payor.

      . See also Ellvog, Inc. v. Schnadelbach, 95-0092 (La.App. 4th Cir.9/15/95), 661 So.2d 1062, holding that a subrogated insurer which recovers because of the litigation efforts of the insured rightfully should bear a portion of the plaintiff's attorney fees and other costs of the litigation.