author: hDECUIR, Judge.

text:
    Kenneth DODGE v. S & B LOGGING.
    No. 2003-1355.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Joseph Texada Dalrymple, Rivers, Beck, Dalrymple & Ledet, Alexandria, LA, for Plaintiff/Appellant Kenneth Dodge.
    Brian S. Lestage, Hall, Lestage & Lan-dreneau, DeRidder, LA, for Defendant/Ap-pellee S & B Logging.

      Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   hDECUIR, Judge.

Kenneth Dodge filed suit against his employer, S & B Logging, after workers’ compensation benefits were terminated based on a release to return to work following knee surgery. Dodge appeals from the dismissal of his claim against S & B Logging. After reviewing the merits of Dodge’s claim, we find no manifest error in the decision rendered by the workers’ compensation judge and affirm.

Dodge was employed as a truck driver for S & B Logging. He hauled pulpwood, driving an eighteen-wheeler with a thirteen speed transmission. It was a heavy manual labor job, involving lifting, loading, climbing, and using a chain saw, and Dodge had been at this job for many years. Dodge was a heavy man, weighing approximately 450 pounds in August of 2001, when he first developed symptoms of the knee problem which is at issue herein. The problem began as a small callous on the side of his left knee, located at the spot where his knee rubbed against the door of the truck. On August 9, he noticed his knee was red, swollen, and tender, and he had trouble walking. Dodge went to his family practitioner, Dr. L.J. Mayeux, who immediately sent him to the emergency room at St. Francis Cabrini Hospital in Alexandria.

Dodge was diagnosed with prepatellar suppurative bursitis of the left knee, an infectious process which put Dodge at risk of losing his leg. After drainage and antibiotic therapy failed to correct the problem, Dr. Terry Texada, an orthopedic surgeon, was called in for surgery. The surgery was performed on August 11, and Dr. Texada considered it successful. In fact, he instructed Dodge on September 6 to get back in his truck and try to start working the pedals. Dr. Texada saw Dodge for the last time in January of 2002 and advised him to return to work. Consequently, Dodge’s workers’ compensation benefits, which had been paid at the maximum rate since August 7, 2001, were terminated on February 7, 2002.

|2In the meantime, however, Dodge continued to see Dr. Mayeux after his surgery and, in October 2001, was diagnosed with severe arthritis in the knees. Dr. May-eux’s notes indicate that Dodge’s left knee remained tender and swollen, with decreased range of motion, throughout 2001 and 2002. The last office note, dated January 20, 2003, shows the same symptoms, with Dodge still on “no-work status.” His weight, which Dr. Mayeux had recorded at 455.4 pounds on August 9, 2001, was unmeasurable, meaning over 470 pounds, as of November 20, 2001.

Dr. Texada attributed Dodge’s continuing problems with his knee to excess weight and degenerative arthritis. He specifically noted those problems were unrelated to the septic bursitis which developed at the site of the calloused knee. Dr. Texada felt the bursitis had healed completely after surgery. Conversely, Dr. Mayeux considered the arthritic condition to have been aggravated or set into motion by the surgery necessitated by the work-related bursitis. Similarly, Dodge’s weight concerns were exacerbated by the period of inactivity following surgery and his inability to get back to an active work environment. Dr. Mayeux felt Dodge’s disability was directly related to his employment injury.

In this appeal, Dodge contends the workers’ compensation judge erred in several respects. He first contends the court misinterpreted the medical testimony and, therefore, made incorrect conclusions as to Dodge’s condition. He also argues the court placed improper reliance on the testimony of Dr. Texada, who was only a consulting physician in the case and did not conduct orthopedic examinations on Dodge’s knee subsequent to performing surgery to relieve the bursitis. He also asserts the court erred in failing to apply the presumption of causation articulated in Housley v. Cerise, 579 So.2d 973, 980 (La.1991) (quoting Lucas v. Ins. Co. of N. Am., 342 So.2d 591 (La.1977)), wherein the supreme court stated:

|3[A] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

In addressing this presumption, however, this court has stated, “If the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry her burden of proof.” Courville v. Premier Abrasive Prod., 01-840, p. 3 (La.App. 3 Cir. 12/12/01), 801 So.2d 598, 601.

Our review of the medical evidence does show some degree of misunderstanding on the part of the workers’ compensation judge. He stated in oral reasons that he found no evidence of a job-related incident which would have caused an opening in the skin necessary for the septic bursitis to develop. He also noted the medical evidence did not support Dr. Mayeux’s opinion that the knee remained infected after surgery or that scarring and adhesions from the surgery caused further problems. As Dodge asserts, the evidence did not indicate that an opening in the skin was necessary for the bursitis to develop, nor did the records of Dr. Mayeux support the statement that he thought an infection and adhesions remained. Nevertheless, these unsupported findings were immaterial to the resolution of the case, which presented the question of whether Dodge was entitled to benefits after Dr. Texada specifically released him to return to work in late January. Dodge received workers’ compensation benefits from the time of his surgery until February of 2002.

We find no merit to Dodge’s remaining contentions that the workers’ compensation judge improperly relied on the testimony of Dr. Texada and failed to apply the appropriate presumption of causation. The court weighed the evidence and concluded that Dodge had failed to carry his burden of proof on the medical question |4of causation concerning the persistent disabling symptoms subsequent to January 2002. Our review of the record reveals no manifest error in that conclusion.

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. Costs of the appeal are assessed to appellant, Kenneth Dodge.

AFFIRMED.


source: Caselaw Access Project

author: 1 .WOODARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Fred Christopher BEVERLY.
    No. 2003-1348.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      James C. Downs, District Attorney, Loren Marc Lampert, ADA, Ninth Judicial District, Alexandria, LA, for State/Appel-lee.
    Fred Christopher Beverly, Ferriday, LA, Defendant/Appellant, pro se.
    Laura M. Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant Fred Christopher Beverly.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   1 .WOODARD, Judge.

The Defendant, Fred Christopher Beverly, asserts that the trial court failed to give adequate consideration to the applicable mitigating factors when it imposed an excessive sentence of twenty years for simple burglary. We disagree and affirm his sentence.

H*

On April 25, 2002, the Defendant burglarized Jones Audio taking approximately $6,000.00 in merchandise.

On September 25, 2002, the trial court charged him by bill of information with simple burglary, a violation of La.R.S. 14:62, to which he pled not guilty on October 28, 2002. Notwithstanding, the jury found him guilty as charged on March 19, 2003.

On March 21, 2003, the State filed a habitual offender bill against him to which he pled not guilty. On June 23, 2003, the trial court deemed him a third-felony offender and sentenced him to twenty years at hard labor for his simple burglary conviction, with credit for time served, which was to run concurrently with a previously imposed ten-year sentence for possession of cocaine.

On June 25, 2003, the Defendant filed a motion to reconsider his sentence, alleging that his sentence was excessive, but the trial court denied this motion. From this denial, he appeals.

‡ ‡ $

ErroRS Patent

According to La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. We found one.

The minutes from the arraignment on the habitual offender bill and the transcript of the habitual offender hearing do not indicate whether the trial court informed the Defendant of his right to remain silent or his right to have the State 12prove its case against him at the habitual offender hearing. Nevertheless, we find the error harmless because a hearing was actually held.

Excessive Sentence

In State v. Walker, when the excessiveness of a defendant’s sentence was at issue, this court noted:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment.” A sentence which falls within the statutory-limits may nevertheless be excessive under the circumstances. To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering. The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion.[]

A trial court must look at the particular circumstances of the case and the defendant’s background in order to impose a sentence that is suited for him. On review, the issue is not whether another sentence would have been more appropriate; rather, it is whether the trial court abused its discretion.

Under La.R.S. 15:529.1(A)(l)(b)(i), a person convicted of simple burglary and sentenced as a third-felony offender “shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.” The penalty range for simple burglary is a fine of not more than |3$2,000.00 and/or imprisonment up to twelve years with or without hard labor. Accordingly, the trial could have sentenced the Defendant to a term of imprisonment from eight to twenty-four years. Thus, his twenty-year sentence is in the upper range of sentencing possibilities.

The Defendant maintains that this sentence is excessive. Specifically, he contends that the trial court failed to consider that he was only twenty-three years old with three children to support. However, it was well aware of his age and the fact that he had three children when it sentenced him. In fact, at his sentencing, he informed the trial court that he did not pay child support for his children. Furthermore, he should have thought about the adverse consequences to his family before he decided to break the law, again.

The Defendant has been arrested forty-six times since he turned seventeen. He is also a third-felony offender who had several charges pending at the time of his sentencing. Additionally, the court ordered that this sentence be served concurrently with another sentence imposed for an unrelated felony. Based upon these factors, his sentence is not excessive.

Thus, we find this assignment of error to lack merit.

Pro Se Assignments op Error

The Defendant filed a pro se brief in which he assigns ten assignments of error. Two of these issues concern his sentence in another appeal. Therefore, pro se assignments of errors No. 1 and No. 3 were stricken, and we will not address them in this appeal. Also, we previously addressed No. 6 — his excessive sentence claim.

Assignment Number 2

The Defendant contends that the trial court erred in imposing the habitual offender sentence before sentencing him for simple burglary.

Louisiana Revised Statutes 15:529.1(D)(3) provides:

When the judge finds that he has been convicted of a prior felony or felonies or adjudicated a delinquent as authorized in Subsection A, or |4if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted or adjudicated, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling.

(Emphasis added.) The statute clearly states “the court shall vacate the previous sentence if already imposed.” Therefore, according to the clear wording of the statute, the trial court was permitted to delay its imposition of a sentence until after the Defendant was adjudicated as a habitual offender.

Assignment Number k

The Defendant, also, contends the trial court erred in not allowing him to withdraw his guilty plea to the habitual offender bill filed against him. However, the Defense never filed a motion seeking to withdraw his guilty plea.

Assignment Number 5

The Defendant asserts further that the trial court erred in treating him as a multiple offender when he was inadequately Boykinized. In particular, he contends that he was not fingerprinted when he pled guilty to the predicate offense of theft over $500.00.

The State informed the trial court at the habitual offender hearing that the bill of information regarding theft over $500.00 did not contain the Defendant’s fingerprints. In response, Defense counsel objected to its use as a predicate offense on that basis.

In State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, the supreme court established the burden of proof for a defendant’s challenge to the state’s use of a prior offense. The supreme court stated:
In [State v.] Shelton [, 621 So.2d 769 (La.1993)], this Court recognized that Boykin does not require that the entire burden be placed on the prosecution in a recidivism proceeding. Rather, the presumption of regularity that attaches to prior convictions encouraged us to revisit our previous system of placing the entire burden on the State to Improve the validity of prior convictions. Consequently, we held that when a defendant denies the allegations contained in the bill of information in an habitual offender proceeding, the burden is on the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken. If the State meets this initial burden, the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant carries this burden, then the burden reverts to the State to prove the constitutionality of the plea. The State will meet this burden by producing a “perfect” transcript of the guilty plea colloquy. Anything less than a “perfect” transcript, such as a guilty plea form or minute entry, will require the trial judge to weigh the evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced. In Shelton, we held that the State carried its initial burden under the revised burden-shifting rules by producing a well-executed guilty plea/waiver of rights form and a minute entry which stated, inter alia, that the judge “gave the Defendant his rights.’[]

In attempting to establish the conviction of theft over $500.00 as a predicate offense, the State filed a certified copy of the bill of information, charging the Defendant with theft over $500.00, and a certified copy of the minutes reflecting the conviction. Additionally, the State offered as evidence his testimony in docket number 267,552, in which he testified that he committed the offense of theft over $500.00.

The minutes, which the State submitted, indicate that he was present in court with counsel and plead guilty to theft over $500.00. Additionally, - he indicated that he understood and waived his .right tp trial, the right against self-incrimination, and the right to confront and cross-examine witnesses against him. Consequently, the State sufficiently proved he was convicted of the prior offense of theft over $500.00, in spite of the lack of the Defendant’s fingerprints in the bill of information.

| fiAssignment Number 7

The Defendant urges that the trial court erred when it found him to be a multiple offender. In fact, he alleged that he “can show and prove from the face of record under collateral attack [that the] State didn’t meet it’s required burden to substantiate the procedural matter in this specific case.” Yet, he did not present any specific allegations regarding the State’s failure to carry its burden at the habitual offender hearing. Accordingly, under the Uniform Rules — Courts of Appeal, Rule 2 — 12.4, we decline to consider this issue, since he abandoned it.

Assignment Number 8

Next, the Defendant alleges that the trial court erred in denying his motion to suppress the statements he made to Detective John Dauzat on May 29, 2002. On the day of trial, the court held a hearing and denied this motion.

The Defendant did not offer any reasoning indicating how or why the trial court erred in denying his motion to suppress. Therefore, he also abandoned this assignment of error.

Assignment Number 9

The Defendant believes the State should have tested a bloody shirt found at the crime scene for DNA. He maintains that this would have cleared him of the charges.

Detective John Dauzat testified that he recovered a gray Astro’s jersey from Jones Audio, but he stated that he did not test the shirt for DNA since the Defendant confessed to wearing the shirt while breaking into Jones Audio.

We are aware of no law requiring the State to conduct DNA testing on evidence recovered from a crime scene. If the Defendant wished to have the shirt tested for DNA, he could have had it done before the trial. Moreover, he may seek to have this shirt tested by filing an application for post-conviction relief requesting DNA testing pursuant to La.Code Crim.P. art. 926.1 if, in fact, he is asserting Ms innocence.

17Assignment Number 10

The Defendant alleges that the State entrapped him, but he made no arguments on this issue. Thus, again, according to the Uniform Rules — Courts of Appeal, Rule 2 — 12.4, this issue is abandoned.

CONCLUSION

The trial court’s determination that the Defendant was a habitual offender and its imposition of a twenty-year sentence was not erroneous. Thus, we affirm.

AFFIRMED.

      . State v. Beverly, an unpublished opinion bearing docket number 03-817 (La.App. 3 Cir. 12/10/03).

      . See State v. Wilson, 02-700 (La.App. 3 Cir. 12/18/02), 833 So.2d 560, writ denied, 03-216 (La.5/2/03), 842 So.2d 1100.

      . 96-112, pp. 3-4 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 534-35, writ denied, 96-1767 (La. 12/6/96), 684 So.2d 924 (citations omitted).

      . State v. Dorthey, 623 So.2d 1276 (La.1993).

      . State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

      . La.R.S. 14:62.

      . State v. Stewart, 02-196 (La.App. 3 Cir. 10/2/02), 827 So.2d 1277, 1280-81 (citations omitted).

      . Uniform Rules — Courts of Appeal, Rule 2— 12.4.


author: liWOODARD, Judge.

text:
    Roy STROTHER v. GUINN OILFIELD SERVICES, L.L.C.
    No. 2003-1310.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Chris Smith, III, The Smith Law Firm, L.L.P., Leesville, LA, for Plaintiff/Appellee Roy Strother.
    Henry Harvey LeBas, Robert M. Martina, Law Offices of Henry H. LeBas, Lafayette, LA, for Defendant/Appellant Guinn Oilfield Services.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   liWOODARD, Judge.

This workers’ compensation appeal arises from an action for disability benefits. The WCJ found that Roy C. Strother sustained a disabling back injury while in the course and scope of his employment with Guinn Oil Field Services, L.L.C. (Guinn Oil). We affirm as amended.

# a's % # &

Roy C. Strother worked as a roustabout, which is a physical job that is very strenuous and requires heavy lifting, for Guinn Oil from September of 2001 to November 21, 2001.

During one of the last few days of his employment, Mr. Strother injured his back on the job site, which is referred to as the Glade Branch or the Hunt Plywood site, while carrying heavy valves, boxes of bolts, and pipe wrenches up three flights of stairs to the top of a twenty-four-foot tank. According to Mr. Strother, a crane would have normally carried these materials to the top of the tank but, on this day, the crane was at another job site.

While making one of his many climbs up to the top of the tank, Mr. Strother remembered feeling “something burning and pinching in [his] ... back and ... left leg.” When asked at trial if he reported his injury to any of his superiors, he stated that he reported it to Douglas Cloud, Jr., his “foreman” and brother-in-law. Mr. Cloud told him to “take it easy” the rest of the day and suggested to him that he might be hurting because he was not yet accustomed to all the heavy lifting required by this type of work considering that he started working for Guinn Oil only a couple months before.

After work, Mr. Strother went home to his wife, Donna Marie Strother, and their three-year-old son. When he arrived, he said:

I could barely get out of my truck [because] I was hurting so bad. I like to never made it home. When I got there ... I sat down on the steps and she helped me pull my ... boots off ... and I ... stripped down to my drawers on the steps. And she helped me get ... into the tub to take a shower.

| sMrs. Strother was asked about her husband’s condition on that night. She responded: ‘Whenever he came in he looked depressed, and my [husband has] always been high strung and always hyper, and he was just depressed and I asked him what was wrong and he said he was ... hurt.”

That same night, Mr. and Mrs. Strother picked up his brother-in-law, Mr. Cloud, on their way to a pharmacy. When they asked for the pharmacist’s opinion on how to relieve a pulled muscle, she recommended that Mr. Strother use “muscle rub and Aleve” and told him to report his injury to his boss if it did not get any better within seven days.

Sometime thereafter, Mr. Cloud allegedly called Jerry Guinn, the owner of Guinn Oil, to find out if the company would be doing some work in Washington, Louisiana. Mr. Cloud knew that if Guinn Oil did not get hired to do this job, he and Mr. Strother might get laid off. During their conversation, Mr. Guinn told him that he had not yet heard anything but he was expecting some news on the Washington job in a few days.

When the Washington job did not come through, Mr. Guinn informed Mr. Cloud that he had no choice but to lay off him and Mr. Strother. Later that day, Mr. Cloud relayed this bad news to his brother-in-law.

On November 26, 2001, Mr. Guinn sent both of them an official layoff notice. They needed this document to apply for food stamps and unemployment benefits. However, Mr. Strother could not get unemployment benefits because his injuries prevented him from going back to work.

The next day, on November 27, 2001, Mr. Strother called Mr. Guinn to inform him that he injured his back on the job. This was the first time that Mr. Guinn learned of his injuries.

Afterwards, Mr. Strother began receiving workers’ compensation benefits from Montlake Casualty Company (Montlake) together with some medical expenses.

On April 11, 2002, Mr. Strother filed suit, alleging that Guinn Oil and Montlake paid him an improper amount in weekly compensation benefits, but he later amended his claim to dispute their refusal to pay him benefits since August 1, 2002 and to dispute their failure to authorize medical treatment.

On April 29, 2003, the WCJ rendered a judgment in Mr. Strother’s favor, awarding him: (1) $321.23 in weekly workers’ compensation benefits that were due Isfrom November 21, 2001, together with legal interest, but this award was made subject to a credit for any benefits previously paid; (2) all reasonable medical benefits, including the surgery his doctor recommended; and (3) $2,000.00 in penalties and $3,000.00 in attorney fees, together with legal interest from the date of judicial demand for the Defendants’ initial underpayment of benefits.

Guinn Oil asserts on appeal that the WCJ erred: (1) by finding that Mr. Strother suffered an injury on the job that qualified as an accident even though he could not identify an actual and identifiable precipitous event; (2) by finding that he proved, by a preponderance of the evidence, that he was injured, considering the evidence presented at trial proving his lack of credibility; (3) by finding that his claim was compensable under our Workers’ Compensation laws; (4) by finding that he was entitled to benefits despite circumstantial and direct evidence that cast serious doubt on his version of his alleged accident and injuries; (5) by not finding that he forfeited his rights to benefits under La.R.S. 23:1208; and (6) by awarding him penalties and attorney fees. Mr. Strother answered Guinn Oil’s appeal, contending that the WCJ should increase the award of penalties and attorney fees.

Injury

Guinn Oil urges that Mr. Strother did not prove by a preponderance of the evidence that he sustained a work-related accident because in his statements to Montlake’s insurance adjuster and his doctors following his accident he failed to identify a particular incident that caused the occurrence of his pain.

To obtain workers’ compensation benefits, an employee must prove by ' a preponderance of the evidence that he suffered a personal injury because of an accident, arising out of and in the course of his employment. We are to construe the Workers’ Compensation Act liberally, ‘ but this does not relax the worker’s burden of 14proof. This determination is a factual one; thus, we will not disturb the WCJ’s finding unless we deem it to be clearly wrong or manifestly erroneous.

The Act defines an accident as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

Specifically, the WCJ in this case found: “Mr. Strother has proven by a preponderance of the evidence that he suffered an incident on his job during the course of his employment which qualifies as an accident under the Workers’ Compensation Law.” We agree.

When there is a dispute over the specific date and time of a claimant’s accident, without the introduction of any evidence to illustrate the contrary, this lack of specificity will not render his account of the accident insufficient for the purposes of La.R.S. 23:1021(1). Furthermore, the claimant is entitled to the benefit of a presumption if an otherwise healthy worker suffers an accident at work and, thereafter, he becomes disabled; we are to presume that there is a causal connection between the .two when medical evidence establishes a reasonable possibility of such a connection. When an employee establishes- this presumption of a casual relationship, the employer has the burden of producing evidence to persuade the trier of fact that it is more probable than not that a work-related accident did not cause the plaintiffs injury.

Mr. Strother has consistently related his back injury to his carrying of heavy wrenches and valves up and down ladders at work. Admittedly, there is some confu-sioh over the exact time and date of his accident; nonetheless, the evidence luclearly suggests that • he sustained a work-related accident sometime during the last few days of his employment. Dr. Ghanta, who was his family doctor, confirmed that he never complained of back problems before this- time. Yet, two weeks after Mr. Strother’s last day on the job, Dr. Pope performed an MRI on him, revealing “a large extruded disc predominantly on the left side at L-5 and S-l level” that “did produce some mass effect and some compression of the nerve root at that level.” Moreover, every doctor who testified believed a work-related accident caused these injuries to his spine.

In light of this evidence, Mr. Strother clearly benefitted from a presumption that a work-related accident caused his injuries. Therefore, given Guinn Oil’s failure to produce any evidence suggesting that anything else caused his injuries, the WCJ correctly determined that Mr. Strother sustained this injury to his spine while in the course and scope of his employment with Guinn Oil.

False Statements or Misrepresentations

In spite of his entitlement to benefits, Guinn Oil believes Mr. Strother forfeited his right to them by making false statements.

Louisiana Revised Statutes 23:1208 provides, in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by hearing officer, forfeit any right to compensation benefits under this Chapter.

This statute applies to any false statement or misrepresentation made by an employee, specifically, for the purpose of obtaining workers’ compensation benefits.

At trial, Mr. Strother testified that he told Montlake’s claim adjuster that he had to climb up six flights of stairs, when he really only had to climb up three flights. In |r,his reasons for judgment, the WCJ noted that Mr. Strother admitted that this was an exaggeration. In addition, there are other examples of his tendency to exaggerate, but they are all irrelevant. “Exaggeration is a natural human failing.” Furthermore, Mr. Strother’s initial inability to pinpoint the exact date and time of his work accident was not due to any sinister motive and, thus, was insignificant when viewed in light of the totality of the record.

Therefore, we agree with the trial court that Mr. Strother never willfully made false statements that would disqualify him from receiving benefits.

Penalties and Attorney’s Fees

Both Guinn Oil and Mr. Strother dispute the WCJ’s assessment of penalties and attorney fees.

The WCJ has great discretion when awarding attorney fees and penalties, and we will not disturb these awards unless they are clearly wrong. Louisiana Revised Statutes 23:1201.2 provides, in part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims.

(Emphasis added.) An act is arbitrary and capricious when it is done willfully and without consideration of the facts and dr-cumstances presented, or it is one based on an unfounded motivation.

After his accident, Mr. Strother told Montlake’s insurance adjuster that he hurt himself on November 21, 2001 at the Glade Branch site. However, some evidence 17suggested that he might have actually worked at another job site on that day, although the Defense never proved that this was true. Nevertheless, even if this could be proved, any mix up concerning the exact date of its happening would not have affected our determination that a work-related accident caused Mr. Strother’s injuries. Yet, given this confusion, Guinn Oil’s discontinuance of benefits, on August 1, 2002, was not arbitrary or. capricious; thus, it does not owe Mr. Strother attorney fees under La.R.S. 23:1201.2.

On the other hand, the WCJ correctly surmised that Guinn Oil owed Mr. Strother penalties and attorney fees for its failure to pay benefits under La. R.S. 23:1201, which provides, in part:

F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault....
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions' over which the employer or insurer had no control.

(Emphasis added.) An employee is not entitled to penalties and attorney fees for the employer’s failure to pay benefits timely when the employer or insurer reasonably controverted the employee’s claim for benefits, or when the nonpayment resulted from conditions over which it had no control. Thus, if the employer or insurer had a valid reason for its denial of benefits, the WCJ should assess neither penalties nor attorney fees under La.R.S. 23:1201.

It is undisputed that, initially, Montlake paid Mr. Strother an incorrect amount in benefits due to the insurance adjuster’s error in calculating Mr. Strother’s wages. IsThe WCJ can assess penalties and attorney fees for the underpayment of compensation benefits when the employer or insurer does not offer proof that the error'in calculation was beyond their control. Since the Defendants offered no such proof, the underpayment of Mr. Strother’s benefits was unjustified. As such, we affirm the WCJ’s award of penalties and attorney fees.

In Mr. Strother’s answér to Guinn Oil’s appeal, he requests an additional award of attorney fees for the work done on appeal. A workers’ compensation claimant is entitled to an increase in attorney fees to reflect the additional time incurred in defending an employer’s unsuccessful appeal. We award Mr. Strother $2,000.00 in attorney fees for the time his counsel spent preparing this appeal.

CONCLUSION

We affirm the WCJ’s determination that Mr. Strother sustained his spinal injuries in a work-related accident. We also affirm his award of penalties to Plaintiff/Appellee. Furthermore, we amend the WCJ’s award of attorney fees to Plaintiff/Appellee to include an additional $2,000.00 for the work done on this appeal. We assess all costs of this appeal to the Defendants/Appellants.

AFFIRMED AS AMENDED.

      . La.R,S. 23:1031.

      . See Carter v. Wal-Mart Stores, Inc., 02-122 (La.App. 3 Cir. 6/26/02), 820 So.2d 1265, writ denied, 02-2074 (La.11/1/02), 828 So.2d 573.

      . See Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, writ denied, 02-2Í50 (La. 11/22/02), 829 So.2d 1044.

      . La.R.S. 23:1021(1).

      . Tate, 824 So.2d 456.

      . Allor v. Belden Corp., 393 So.2d 1233 (La.1981).

      . Rideaux v. Franklin Nursing Home, 95-240 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, writ denied, 95-3093 (La.2/16/96), 667 So.2d 1058.

      . Nabors Drilling USA v. Davis, 03-136 (La. 10/21/03), 857 So.2d 407.

      . See Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991).

      . Id. at 354.

      . See Attaway v. Farley’s Glass Co., 430 So.2d 705 (La.App. 2 Cir.1983).

      . See George v. M & G Testing and Services, Inc., 95-31 (La.App. 3 Cir. 7/19/95), 663 So.2d 79, writ denied, 96-39 (La.3/8/96), 669 So.2d 403.

      . Flagg v. Hixson Funeral Home, 02-878 (La.App. 3 Cir. 2/5/03), 838 So.2d 174.

      . Tate, 824 So.2d 456; La.R.S. 23:1201(F)(2).

      . Id.

      . Alexander v. B.F. Trappey & Sons, 93-549 (La.App. 3 Cir. 3/9/94), 635 So.2d 269.

      . George v. Guillory, 00-591(La.App. 3 Cir. 11/2/00), 776 So.2d 1200.


author: | ¶WOODARD, Judge.

text:
    EL PASO FIELD SERVICE, INC. v. Stephen MINVIELLE.
    No. 2003-1293.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Jeffrey M. Baudier, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee El Paso Field Service, Inc.

      John Felton Blackwell, New Iberia, LA, for Defendant/Appellant Stephen Minv-ielle.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   | ¶WOODARD, Judge.

The Plaintiff, El Paso Field Services, Inc. (El Paso), sought an injunction prohibiting the Defendant, Mr. Stephen Minv-ielle, from engaging in any crawfishing operations on its right-of-way (ROW) that could damage its pipeline. We affirm the trial court’s decision to grant it an injunction.

$ ^ * * *

On January 29, 2001, El Paso became the owner and operator of the Sibon Pipeline traversing Mr. Minvielle’s property.

On September 15, 1959, his ancestor in title granted the Sibon Pipe Line Company, El Paso’s ancestor in title, “the right to lay” this pipeline across the property. The ROW agreement also gave this company’s “successors and assigns” a permanent right to “operate, maintain, inspect, repair, replace, change the size of, and remove” its pipeline.

On February 28, 1985, the parties’ predecessors executed an amendment to this ROW agreement to designate with particularity the portion of the property encumbered:

[T]he total width of the right-of-way acquired ... is and shall be a width of fifty (50) feet, measured twenty-five (25) feet on either side of the center line of the pipeline as it is physically located in place on the captioned property.

In May of 2000, Mr. Minvielle constructed a crawfish pond on the subject property despite his awareness that a pipeline rightfully traversed it since 1959. Before beginning construction, he met with representatives of Enron, owner of the ROW at the time, to discuss the possible ramifications of building a crawfish pond over the Sibon Pipeline. Enron told him he could construct the pond only if he agreed that he would not change the volume of dirt over its pipeline, which it maintained at a thirty-six (36) inch minimum depth.

In February of 2001, Mr. Minvielle began conducting his crawfishing operation, using a sixteen (16) foot by six (6) foot wide hydraulically driven boat propelled by a steel wheel, commonly referred to as a “crawler,” that floats along the | ¡.contour of the bottom of the pond. The crawler’s wheel is approximately thirty-six (36) inches by eight (8) inches wide and has “cleats” protruding from it made out of “cold-roll steel” which provide traction for the crawler.

When he described his crawler for the trial court, Mr. Minvielle explained that: “It crawls along the bottom and ... because it is quite heavy, it will sink through the mud-line, depending on how much it gets slurred up and all; and it will find solid earth to propel the boat along.” Due to this mode of operation, the crawler causes significant rutting of the soil because its wheel has to dig deeper each time it passes through the pond’s soft muddy bottom in order to propel the crawler forward, which results in the wheel going ever deeper below the surface of the soil as crawfish season progresses. In fact, Mr. Minvielle confirmed that sometimes the entire wheel goes below the soil digging a trench that can be upwards of forty (40) inches deep.

Approximately three months later, in late April, Mr. Minvielle’s first crawfish season ended, and the pond was emptied until the following season began in November of 2001.

In January of 2002, his crawler struck the Sibon Pipeline while harvesting craw-fish. The next day, he marked the area where he thought he hit the pipeline and called to report this incident to the company that owned the pipeline at the time. The representative who answered reportedly said that they would send someone to inspect the pipeline immediately.

According to Mr. Minvielle, it was “two, three, or four weeks later” before Mr. Daron Johnson, an Operations Specialist for El Paso, went to the property to perform a “routine inspection” of the pipeline. At trial, when Mr. Minvielle was asked whether Mr. Johnson knew that the crawler struck El Paso’s pipeline, he responded: “No, he indicated that [El Paso] had just bought the [Sibon Pipeline] in January ... and he had no knowledge of it.” He was also asked about the steps Mr. Johnson took on that day to resolve this problem. Mr. Minvielle answered:

I must say that Mr. Johnson reacted really quick. He did not play around with it.
|aHe explained to me what was in there, what was going on ... [and] asked me not to do this any more. [He also asked me] [t]o mark the spot where it was [struck] to the best of my ability and [told me] that he was going to contact his superiors above him and find out what they needed to do about this.

Two or three weeks later, “[a] barrage of engineers [and] right-of way people” came out to the property to talk with Mr. Minvielle about this incident. After a few meetings, El Paso agreed not to excavate the portions of the pipeline that he thought he hit until sometime after April of 2002, when the crawfish season had ended, because it realized that any work on the pipeline would interfere with his crawfish-ing operation. El Paso’s agreement was contingent on Mr. Minvielle’s promise to stay off their pipeline for the rest of the season.

On August 15, 2002, when it excavated the portions of the pipeline which Mr. Minvielle had previously marked, El Paso found only one spot where he had damaged the pipeline’s “epoxy cold tar” protective coating, but it found no damage to the pipe, itself. At a second location, where he mistakenly believed he struck the pipeline, it found no damage to the pipe or its protective coating.

That same day, El Paso removed and replaced the damaged portion of the pipeline’s coating. In addition, to lessen the likelihood of any future mishaps, it placed thirty stakes across his pond, marking the exact location where the pipeline crossed.

On September 5, 2002, Mr. Minvielle sent El Paso a letter asking it to move its pipeline to a sufficient depth to ensure that his crawler would not hit it again. In this letter, he asserted:

It is quite clear that the pipe is not submerged to an appropriate depth to allow me to fully use and enjoy the property, and that this problem definitely interferes with the cultivation of the land. El Paso was notified of this problem in January, 2002. However, no attempt to remedy the problem has occurred; it has taken until August 15, 2002 for El Paso to even investigate my complaints. Please be advised that I plan to flood this land to cultivate the fall crawfish crop. I am certainly uncomfortable with El Paso ignoring such a dangerous and potentially life threatening situation, which they have created in improperly maintaining this high-pressure LPG pipeline, and allowing it to remain in a position, which causes it to be struck because it is not properly submerged to an appropriate depth.... I want the pipeline submerged to an appropriate depth that will allow me to cultivate and harvest my 14crawfish crop without striking the high-pressure LPG pipeline during my farming operations.

(Emphasis added.)

On September 9, 2002, El Paso filed an injunction, asking the trial court to order Mr. Minvielle to refrain from any operations that could cause the Sibon Pipeline to be struck, tampered with, or compromised in any fashion. In response, he filed an answer, alleging that it had breached the ROW agreement which required it to bury its pipeline deep enough so that it would not interfere with the cultivation of his land. He also reconvened for an injunction prohibiting El Paso from transmitting liquified petroleum gas or other hydrocarbons within its pipeline, or, in the alternative, he asserted that he was entitled to damages for its breach of the ROW agreement.

On June 5, 2003, following a trial on the merits, the trial court granted an injunction to El Paso. Its judgment reads:

IT IS ORDERED AND DECREED that [Mr. Minvielle] be enjoined from operating his crawfishing harvesting vessel in any way so as to allow the vessel’s wheel to come in contact with the soil within three (3) feet of either side of or on top of [El Paso’s] Sibon Pipeline, except that [Mr. Minvielle] shall have the unrestricted right to cross over the pipeline at one location twenty (20) feet wide, where the Sibon Pipeline is buried the deepest beneath the surface.
IT IS FURTHER ORDERED that all other relief requested by the parties be denied.
IT IS FURTHER ORDERED that all costs be divided equally between the parties.

On appeal, Mr. Minvielle asserts that the trial court abused its discretion: (1) by granting an injunction when the ROW agreement permitted the actions he took on the ROW; (2) by granting an injunction when El Paso made no showing of irreparable harm or injury and when it had another adequate legal remedy; (3) by granting an injunction that did not prohibit an unlawful act, and by enforcing a right not granted to El Paso in the ROW agreement; (4) by granting an injunction when the scope of the injunction granted was inappropriate; (5) by granting an injunction when El Paso failed to prove that there was a reasonable probability that he would damage the pipeline in the future; and (6) by not assessing all costs to El Paso.

■ :{; K* ‡ ‡ $

_k

Injunction

Mr. Minvielle’s assignments of error all revolve around his assertion that the trial court erroneously granted El Paso injunctive relief. The trial court has great discretion to grant or deny injunctive relief; thus, we will not disturb its determination without proof that it manifestly abused its discretion.

The Right-of-Way Agreement

Mr. Minvielle asserts that the trial court should have found El Paso in violation of the ROW agreement; instead, he believes it placed unlawful restrictions on his right to use and enjoy his property.

The grant of a ROW is “[a] predial servitude, which is a charge on a servient estate for the benefit of a dominant estate.” In this matter, the dominant estate, El Paso’s ROW, 'benefits from the burden placed on Mr. Minvielle’s property, the servient estate.

A ROW is a conventional predial servitude, which means it is a predial servitude established by contract. The title creating a ROW regulates its use and the extent to which it is used. According to La.Civ.Code art. 730, any “[d]oubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.” The comments to Article 730 provide, in pertinent part:

(b) It is a cardinal rule of interpretation that, in case of doubt, instruments purporting to establish predial servi-tudes are always interpreted in favor of the oioner of the property to be affected .... The rule that the proper interpretation of an ambiguous instrument is that which least restricts the ownership of the land has been applied by 1 fiLouisiana courts in a variety of contexts. See, e.g., Whitehall Oil Co. v. Heard, 197 So.2d 672 (La.App. 3 Cir.), writ [denied,] 250 La. 924, 199 So.2d 923 (1967) (determination of the question whether a landowner created a single servitude over contiguous tracts or a series of multiple interests).
(c) “Servitudes claimed under titles, are never sustained by implication — the title creating them must be express, as to their nature and extent, as well as to the estate to which they are due.” Parish v. Municipality No. 2, 8 La.Ann. 145, 147 (1853), cited with approval in Buras Ice Factory, Inc. v. Department of Highways, 235 La. 158, 103 So.2d 74 (1958).

(Emphasis added.) Thus, Article 730 mandates that the trial court interpret any ambiguity 'in the instrument creating a predial servitude in favor of the landowner, Mr. Minvielle.

The ROW agreement clearly resolves any doubt as to the existence, extent, and manner in which El Paso was to use its ROW. Specifically, it grants El Paso the following rights:

[T]he right to lay, construct, operate, maintain, inspect, repair, replace, change the size of, and remove a pipeline', in whole or in part, for the transportation of gas, oil, petroleum, or any of their products, including any liquids or gases derived or manufactured therefrom hydrocarbons, water, and other substances and such equipment and appurtenances as may be necessary or incidental for such operations, including corrosion control equipment, the Grantee selecting the route, upon, over, and through the following described land.....
The Grantee, at any and all reasonable times, shall have the right of ingress to and egress from such [pipeline] for all purposes of this grant.
TO HAVE AND TO HOLD the rights and privileges hereunder granted unto said SIBON PIPELINE COMPANY, its successors and assigns so long as such pipelines, equipment, and appurtenances or any thereof, are maintained.
17Grantor, his heirs and assigns shall at all times have the right to fully use and enjoy the said premises, except for the purposes granted to the Grantee; provided however that Grantor shall not construct any house or structure on or over the Right-of-Way herein granted, without first obtaining written consent of Grantee. Grantee, its successors and assigns are hereby expressly given and granted the right to assign this Right-of-Way or easement or any part thereof.

However, the ROW agreement limits those rights El Paso acquired as follows:

By the acceptance hereof, the Grantee agrees to bury such pipelines so that they will not interfere with the cultivation of the land and also to pay any and all damages to crops, fences and land which may be suffered from the construction, operation, or maintenance of such [pipeline].

(Emphasis added.) Accordingly, Mr. Minvielle contends that El Paso breached the ROW agreement by not having its pipeline submerged to a sufficient depth, and, as a result, his crawler struck the pipeline. He asserts that this incident is evidence of El Paso’s interference with his cultivation of crawfish; therefore, the trial court abused its discretion when it enjoined him from riding his crawler within three (3) feet of its pipeline.

In support of its determination, the trial court reasoned:

Based on the Right of Way agreement, Mr. Minvielle has the right to conduct an aquaculture operation within the Right of Way, and El Paso has the right to have its pipeline within the Right of Way, and neither can interfere with the other.
With regard to each of their requests for an injunction, I feel the appropriate remedy will be to grant an injunction to [El Paso], prohibiting Mr. Minvielle from operating his operation such that the wheel of his crawler would not come in contact with the soil at the bottom of the pond, within three feet of the pipeline, except at one crossing....
I think that would protect the interests of both parties and avoid any damage to the pipeline and any other damage resulting.

Therefore, the trial court found that, under the ROW agreement, both parties were obligated not to interfere with the other’s rights. Moreover, implicit in its reasoning is its belief that Mr. Minvielle was the only party who obstructed or disturbed real larights in this property. However, before we can determine whether its assessment was just, we must identify Mr. Minvielle’s obligations under the ROW agreement.

Louisiana Civil Code Article 651 provides:

The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate.

Furthermore, the owner of the servient estate may do nothing that: (1) will diminish the use of the servitude of (2) makes the use of the servitude more inconvenient. Therefore, Mr. Minvielle was obligated by law to abstain from activities that burdened or interfered with El Paso’s ROW.

It is undisputed that he knew a pipeline ROW encumbered this property for more than forty years before he bought it. During that time, the previous owners of the property used it extensively for rice and sugar cane farming. Yet, Mr. Minv-ielle was the first person ever to damage the pipeline.

Mr. Mark Champagne, from Louisiana’s Office of Pipeline Safety, testified that the Sibon Pipeline complies with current standards that require owners of pipelines to bury them at least thirty-six (36) inches deep. As such, it was inevitable that problems would arise when Mr. Minvielle started using his crawler to harvest crawfish when it had a thirty-six (36) inch wheel propelling it that would sometimes dig trenches forty (40) inches deep. Thus, his admission that he chose to harvest craw-fish with a crawler even before construction on the pond began is particularly relevant since El Paso established at trial that this crawler was the only crawfish harvester on the market that caused significant rutting.

Nevertheless, before construction, he failed to inform Enron, a previous owner of the pipeline, that the harvester he chose was capable of digging forty (40) inches underground. It is also uncontested that he promised a representative of Enron, who was supervising the construction of the pond at the time, he would not take “any substance of any volume at all off the top of the pipeline.” Furthermore, he admitted ]3at trial that his striking of the pipeline interfered with El Paso’s safe operation of the pipeline.

Under these particular circumstances, we find that Mr. Minvielle’s crawfishing operation interfered with the rights granted to El Paso under the ROW agreement, whereas El Paso committed no such violation.

Irreparable Harm/Adequate Remedy

Mr. Minvielle contends that the trial court’s issuance of an injunction, when El Paso made no showing of irreparable harm or injury and when it had another adequate remedy at law, was improper.

Louisiana Code of Civil Procedure Article 3601 states, in part: “An injunction shall issue in cases where irreparable injury, loss or damage may otherwise result to the applicant, or in other cases specifically provided by law.” In other words, irreparable loss or injury must immediately threaten the party seeking injunctive relief under this article, and that party must be without any other adequate legal remedy.

However, La.Code Civ.P. art. 3663 authorizes the trial court to grant an injunction to protect a ROW if another obstructs or disturbs the ROW owner’s possession or enjoyment of this real right in immovable property and if the ROW owner or their ancestors in title have had this ROW for more than a year. When a party seeks an injunction on this ground, there is no need to make a showing of irreparable harm. In addition, nothing in Article 3663 suggests the existence of a mandate requiring these parties to prove that the law does not offer them any other adequate remedy.

The trial court specifically addressed Mr. Minvielle’s assertion that El Paso had another viable legal remedy:

The argument has been made that if Mr. Minvielle were to rupture the pipeline, that any damage could be compen-sable, therefore an injunction is not an appropriate remedy.
I m[W]hen that pipeline ruptures there is a potential of someone being killed. Technically, that is compensable in money, but I don’t think that is what we should consider in deciding whether an injunction should be entered.

We agree. Therefore, El Paso needed to show, only, that Mr. Minvielle disturbed the rights granted to it under the ROW agreement to prove its entitlement to in-junctive relief.

Given our previous finding that the crawler’s striking of the pipeline constituted a disturbance or interference with El Paso’s ROW, Mr. Minvielle’s contention that the trial court erroneously granted this injunction without a showing of irreparable harm or injury is without merit. Likewise, his assertion that El Paso had another adequate legal remedy that prohibited it from receiving injunctive relief is also meritless.

Prohibiting a Lawful Act/Enforcing a Right Not Granted

Next, we address Mr. Minvielle’s contention that the trial court granted: (1) an injunction that does not enforce a right granted to El Paso in the ROW agreement; and (2) an injunction that does not prohibit him from engaging in an unlawful activity.

Louisiana Civil Code Article 748 provides, in part: “The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.”

Accordingly, El Paso has the right to use its ROW without interruption. Thus, an injunction limiting the crawler’s movement over the pipeline is a reasonable measure designed to ensure that the crawler will never again strike the pipeline given that any such collision would disturb El Paso’s use of its pipeline because it would require more excavations to determine the extent of damage done to the pipeline.

As such, these assignments of error are clearly without merit when one considers that under La.Code Civ.P. art. 3663 a trial court can grant an injunction merely to prevent the owner of the servient estate (Mr. Minvielle) from diminishing or making the exercise of the rights granted to the owner of the dominant estate (El Paso) under a ROW agreement more inconvenient. Therefore, it could grant this | nrelief even though the prohibited activity (use of the crawler within three (3) feet of the pipeline) was not an unlawful act, since it found that any such use would interfere with El Paso’s use of the ROW.

Therefore, these two assignments of error have no merit.

Scope of the Injunction

Mr. Minvielle also argues that it was an abuse of discretion for the trial court to prohibit him from operating his crawler within three (3) feet of the pipeline, rather than some narrower protective zone.

An injunction is an equitable remedy that the trial court should carefully design to achieve the essential correction at the least possible cost and inconvenience to the defendant.

The testimony at trial proved that the crawler’s wheel was three (3) feet in diameter. Thus, the trial court could have logically concluded that a three (3) feet buffer zone would give Mr. Minvielle enough room to turn his vehicle without traversing the pipeline. Also, Mr. Minv-ielle’s suggestion that it could have more adequately protected the pipeline by making El Paso bury it deeper belies his own testimony depicting the way in which his crawler operates. Specifically, he testified that the crawler “crawls along the bottom and ... because it is quite heavy, it will sink through the mud-line, depending on how much it gets slurred up and all; and it will find solid earth to propel the boat along.” The evidence presented at trial also confirmed that his crawler was the only harvester on the market that caused significant rutting of the soil because its wheel digs deeper each time it passes through a pond’s soft muddy bottom, which causes the wheel to go ever deeper below the surface of the soil as crawfish season progresses. Therefore, given the crawler’s tendency to dig trenches consecutively deeper as time goes on, there is no guarantee that lowering the pipeline would prevent it from eventually digging deep enough to strike it again.

In light of the facts presented, we find that the scope of the injunction granted to El Paso was reasonable and was not overly broad.

112Likelihood ofFuhire Damages

In his fifth assignment of error, Mr. Minvielle argues that the injunction was improper since El Paso did not prove that there was a reasonable certainty that he would strike the pipeline again in the future.

The trial court cannot use an injunction to correct an already consummated wrong because it is meant only to prevent a wrong. Therefore, injunctive relief is not available when the party who seeks it does not establish that the other party is likely to commit the acts he seeks to enjoin.

It is clear from the record, however, that the very manner in which Mr. Minv-ielle’s crawler operates ensures that if its movement were left unchecked, it would likely create more ruts deep enough to allow it to compromise the pipeline again in the future. Consequently, the trial court did not abuse its discretion when it determined that future damage to the Si-bon Pipeline was possible if it did not restrict his use of the crawler.

Assessment of CouH Costs

In his final assignment of error, Mr. Minvielle asserts that the trial court erred by dividing the court costs evenly between the parties.

We find no merit in this assignment of error.

CONCLUSION

The trial court did not abuse its vast discretion when it granted injunctive relief to El Paso. Thus, we affirm and assess all costs of this appeal to Mr. Minvielle.

AFFIRMED.

      . See Robbins v. State ex rel. State Land Office, 97-671 (La.App. 3 Cir. 12/17/97), 704 So.2d 961, writ denied, 98-176 (La.3/20/98), 715 So.2d 1214.

      . La.Civ.Code art. 646.

      . See Leblanc v. Trappey, 02-1103 (La.App. 3 Cir. 2/5/03), 838 So.2d 860, writs denied, 03-651, 03-684, (La.5/2/03), 842 So.2d 1107, 842 So.2d 1109.

      . Leblanc, 838 So.2d 860.

      . La.Civ.Code art. 697.

      . See State v. Kitterlin Creek, L.L.C., 02-1063 (La.App. 3 Cir. 2/5/03), 838 So.2d 926, writ denied, 03-1111 (La.6/6/03), 845 So.2d 1097.

      . La.Civ.Code art. 748.

      . Kinder v. Beauregard Electric Cooperative, Inc., 339 So.2d 891 (La.App. 3 Cir.1976).

      . Red River v. Notes, 406 So.2d 294 (La.App. 3 Cir. 1981).

      . Id.

      . Hilliard v. Shuff, 260 La. 384, 256 So.2d 127 (1971).

      . Robbins, 704 So.2d 961.

      . Humble Oil & Refining Co. v. Harang, 262 F.Supp. 39 (E.D.La.1966).


author: | iDECUIR, Judge.

text:
    Sims RACHAL v. GOOD NEIGHBOR GLASS, INC.
    No. 2003-1288.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Robert D. Hoover, Matthew W. Tierney, Baton Rouge, LA, for Defendant/Appellant Good Neighbor Glass, Inc.
    Jay A. Pucheu, Attorney at Law, Marks-ville, LA, for Plaintiff/Appellee Sims Radial.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   | iDECUIR, Judge.

Defendant appeals a workers’ compensation judgment awarding claimant penalties and attorney fees. Claimant answers seeking additional penalties and attorney fees.

FACTS

It is undisputed that on or about October 23, 2001, Sims Rachal was injured in the course and scope of his employment with Good Neighbor Glass, Inc. On September 23, 2002, Rachal filed a disputed claim seeking penalties and attorney fees for the defendant’s arbitrary and capricious denial of physical therapy, an EMG/ NCV, and a neurological exam by Dr. Do-mingue. The workers’ compensation judge awarded $2,000.00 in penalties and $3,000.00 in attorney fees for the denial of physical therapy. The workers’ compensation judge considered the EMG/NCV and neurological exam by Dr. Domingue as one issue and awarded $2,000.00 in penalties and $3,000.00 in attorney fees for denial of those services.

Appellant contends the workers’ compensation judge erred in awarding penalties and attorney fees in both instances. In the alternative, Appellant argues that the award of attorney fees is excessive. Claimant answered alleging the workers’ compensation judge erred in combining the neurological exam and EMG/NVC request and should have awarded separate penalties and attorney fees for the denial of each. In addition, claimant seeks additional attorney fees for this appeal.

DISCUSSION

When an employer refuses to authorize medical treatment, which is reasonable and necessary, penalties and fees are warranted. Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181. Dr. Blanda, Rachal’s treating orthopedist, recommended that he undergo physical therapy and Rachal received that therapy from May 13, 2002 until July 10, 2002, when the physical therapist discharged him 12pending further medical orders. Defendant claims that its utilization review group, Network Synergy Inc., sought proof of medical necessity for continued physical therapy from Dr. Blanda. They contend the denial of benefits was based on the lack of a response from Dr. Blanda. There is no evidence of this request in the record nor any indication that Dr. Blanda ordered the physical therapy discontinued.

On June 11, 2002, Dr. Blanda indicated that surgery was warranted and requested the neurological exam by Dr. Domingue and a EMG/NCV. Defendant contends that since claimant had previously seen Dr. Gidman and he had not requested these tests, a dispute existed between the doctors and they properly requested a state IME. Claimant went to Dr. Gidman again, and Dr. Gidman recommended surgery. Subsequently, defendant approved the surgery. Defendant never asked Dr. Gidman for an opinion as to the necessity of the EMG/NCV. Instead they assumed that because Dr. Gidman recommended surgery that the test was not necessary. Defendant made this assumption in spite of the fact that Dr. Blanda had made the same recommendation when he ordered the tests. Defendant never authorized the tests and belatedly approved additional physical therapy.

An employer may escape liability for its delays in providing medical benefits if (1) its nonpayment stemmed from conditions over which the employer had no control, or (2) the employer reasonably controverted the employee’s right to such compensation or medical benefits. La.R.S. 23:1201(F)(2). Defendant offered no reasonable explanation for its delay in providing the requested services. The adjuster, Mike Caillet, testified at trial that he did not provide authorization because there was a dispute between Drs. Gidman and Blanda on treatment in one case, and Dr. Blanda failed to provide evidence of medical necessity in the other. As stated above, Caillet’s testimony was not supported by the evidence in the record.

13After a thorough review of the record, we find no information warranting defendant’s denial of services. An employer who fails to properly investigate an employee’s compensation claim subjects itself to statutory penalties and attorney fees. Nelson v. Roadway Exp., Inc., 588 So.2d 350 (La.1991). There must be a real or substantial issue to deny benefits.to a disabled employee. Id. The only reason offered by defendant to explain this is the testimony of Caillet that he did not authorize the physical therapy because the doctor’s office or healthcare provider did not call for authorization. However, he produced no evidence that Dr. Blanda authorized discontinuing the therapy. With regard to the other tests, Caillet indicated that he had seen Dr. Blanda’s, written report stating the need for tests, but he presumed there was a conflict between the doctors and, therefore, denied the services.

The purpose of workers’ compensation penalty statutes is to discourage employers from assuming attitudes of indifference toward injured employees. Eaton v. General Accident Group, 292 So.2d 773 (La.App. 4 Cir.1974). Defendant’s behavior is a prime example of the behavior that workers’ compensation penalties are designed to discourage.

The appropriate standard of review to be applied by the appellate courts in determining whether a defendant should be cast with penalties and attorney fees is the “manifest error—clearly wrong standard.” Authement, 840 So.2d 1181. Accordingly, we find that the workers’ compensation judge was not manifestly erroneous or clearly wrong in awarding penalties and attorney fees to Rachal. The workers’ compensation judge was clearly correct and, therefore, we affirm the $4,000.00 penalty defendant was ordered to pay Ra-chal and also affirm the award of attorney fees in the amount of $6,000.00 to be paid to Rachal’s attorney.

h,REQUEST FOR ADDITIONAL PENALTIES AND ATTORNEY FEES

Rachal contends the workers’ compensation judge erred in combining the requested exam by Domingue and the EMG/NCV for penalty purposes. The workers’ compensation judge indicated that he did so because Dr. Domingue would be conducting the exam and tests. We find no manifest error in that determination. This assignment lacks merit.

Rachal has also requested an additional award of attorney fees for work performed on this appeal. A workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/carrier’s unsuccessful appeal. Hickman v. Allstate Timber Co., 94-1275 (La.App. 3 Cir. 4/5/95), 653 So.2d 154, writ denied, 95-1133 (La.6/23/95), 656 So.2d 1017. Accordingly, we award an additional $1,500.00 in attorney fees for the successful handling of this appeal.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. Appellant is taxed with all costs of these proceedings and ordered to pay an additional $1,500.00 in attorney fees to claimant’s counsel for defense of this appeal.

AFFIRMED AS AMENDED.


author: | .DECUIR, Judge.

text:
    Hope Crawford DESSELLE v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY.
    No. 2003-1284.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Jerold Edward Knoll, Knoll & Spruill, LLC, Marksville, LA, for Plaintiff/Appel-lee Hope Crawford Desselle.
    W. Anthony Toups, III, Appeal Counsel, Mary L. Meyer, Douglas L. Grundmeyer, Gregory J. Walsh, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., Orleans, LA, for Defendant/Appellant Colonial Life & Accident Insurance Company.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   | .DECUIR, Judge.

Hope Desselle filed suit against Colonial Life & Accident Insurance Company to collect on a life insurance policy issued to her deceased sister, Laura Crawford Joseph. The proceeds of the policy were ultimately distributed to Desselle via an uncontested concursus proceeding, but the question of penalties under La.R.S. 22:656 went before the trial court. Granting summary judgment in favor of Desselle, the trial court awarded penalties and costs pursuant to the statute. Upon review, we affirm the judgment rendered below, finding no error in the decision of the trial court.

The evidence in the record reveals the' following undisputed facts. Laura Joseph died of congestive heart failure on August 1, 2002 at the age of 36. On that same day, her sister, Desselle, notified Colonial of the death, and Colonial sent the appropriate claim forms to Desselle. Desselle was the named beneficiary on the policy. On August 4, Rudolph Joseph, the decedent’s surviving spouse, contacted Colonial about the policy and was told that he was no longer the named beneficiary on the policy; the company informed Joseph that the beneficiary had been changed to Des-selle in March of 2002. Joseph called the company back on August 6. He denied signing the paperwork on a change of beneficiary form and indicated his signature must have been forged.

Meanwhile, Desselle mailed to Colonial the completed claim form and death certificate on August 19, 2002. Joseph hired an attorney who corresponded with Colonial on August 22. He alleged forgery in the change of beneficiary form and asked Colonial to investigate the matter. Joseph himself sent correspondence to the company on September 5. Desselle called Colonial twice in September to check on her claim; she then hired an attorney who sent a demand letter dated September 25. Desselle called Colonial again on October 14.

12PesselIe filed suit on November 4, 2002, seeking the proceeds of the policy, plus penalties under La.R.S. 22:656, interest, attorney fees, and costs. Colonial was served on December 2 and answered the suit on December 17. By reconventional demand, Colonial initiated a concursus proceeding against Desselle and Joseph and deposited the $35,000.00 life insurance proceeds, with interest, into the registry of the court. Colonial was notified on December 20 that Joseph’s attorney, Danatus King, no longer represented him. When Joseph failed to file an answer to the concursus proceeding within the appropriate time limitations, Desselle moved for an order compelling him to answer or be forever barred from asserting a claim in this matter. The court issued the order, Joseph failed to answer, and Desselle was then able to withdraw the insurance proceeds from the registry of the court.

Consequently, the only claim remaining for adjudication by the trial court was Desselle’s claim for penalties, interest, and costs under La.R.S. 22:656 and La.Code Civ.P. art. 4659. Her claim for attorney fees was abandoned, as it was not legally grounded. After oral arguments, the trial court ruled from the bench in favor' of Desselle.

Essentially, the trial court determined that Colonial had sufficient time to either conclude its investigation of the competing claims of Desselle and Joseph or file a concursus proceeding within sixty days of receiving Desselle’s claim. The mere fact that an investigation was ongoing did not warrant an extension of the period in which the claim should have been paid. The trial court emphasized that the law establishing the sixty-day period is very clear, and it gave examples of what might be considered “just cause” for a delay in payment. The court held that an allegation of forgery was something that could either be disposed of quickly or should go before a court for adjudication within the realm of a concursus proceeding, thereby absolving the ^insurer of responsibility for delay. Finding no genuine issue of material fact, the trial court rendered summary judgment in Desselle’s favor.

Desselle filed suit under La. R.S. 22:656, which provides:

All death claims arising under policies of insurance issued or delivered within this state shall be settled by the insurer within sixty days after the date of receipt of due proof of death, and if the insurer fails to do so without just cause, the amount due shall bear interest at the rate of eight percent per annum from date of receipt of due proof of death by the insurer until paid.

In the present case, Colonial has failed to set forth any specific facts which would reveal a genuine issue for trial. Rather, Colonial’s legal argument, that its delay in payment was justified based on the mere fact of an investigation of competing claims, was simply unconvincing.

In this case involving undisputed facts, the determination of just cause as grounds for delay in paying the proceeds of a life insurance policy is a legal conclusion. After reviewing the record and pertinent jurisprudence, we find the trial court correctly characterized the actions of Colonial as without just cause. See Davis v. Aetna Cas. & Sur. Co., 329 So.2d 868 (La.App. 2 Cir.1975), writs denied, 330 So.2d 617, 333 So.2d 233 (La.1976); Agency Management Corp. v. Green Acres Realty, Inc., 286 So.2d 465 (La.App. 1 Cir.1973), writ denied, 289 So.2d 155 (La.1974). Accordingly, we affirm that portion of the judgment awarding Desselle a penalty on the proceeds of her sister’s life insurance policy in accordance with the provisions of La.R.S. 22:656.

We are likewise unpersuaded by Colonial’s contention that the trial court erred in assessing costs against Colonial. Article 4659 of the Code of Civil Procedure allows the district court in a concursus proceeding to exercise discretion in awarding costs. We find no manifest error or abuse of discretion in the assessment of costs |4against Colonial under the circumstances of this case, and we affirm that portion of the judgment awarding costs to Desselle.

For the above and foregoing reasons, the judgment of the trial court is affirmed, and costs of the appeal are assessed to Colonial Life & Accident Insurance Company.

AFFIRMED.


author: | t SULLIVAN, Judge.

text:
    Ralph Allen PERKINS, et al. v. Harry SHAHEEN, et al.
    No. 2003-1254.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      R. Scott lies, Lafayette, LA, for Plaintiffs/Appellees, Shane Perkins.
    Stephen A. Berniard, Jr., Raggio, Cap-pel, Chozen & Berniard, Lake Charles, LA, for Defendants/Appellees, Harry Sha-heen, Hank Shaheen.
    Frank M. Walker, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellant, Louisiana Farm Bureau Mutual Insurance Company.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   | t SULLIVAN, Judge.

This is a suit to recover damages for personal injuries caused by the intentional acts of a minor. Farm Bureau Mutual Insurance Company (Farm Bureau) appeals the trial court’s grant of summary judgment in favor of plaintiff, Ralph Perkins, and denial of summary judgment in its favor. For the following reasons, we reverse the judgment of the trial court and render judgment in favor of Farm Bureau.

Facts

On August 17, 2002, there was an altercation between Hank Shaheen and Shane Perkins. Ultimately, Hank threw Shane through a plate glass window. Hank and Shane were minors at the time. Mr. Perkins, Shane’s father, filed suit against Hank’s father, Harry Shaheen, and his insurer, Farm Bureau, seeking damages for Shane’s injuries. Farm Bureau had issued two policies to Mr. Shaheen: a homeowner’s policy and a farm liability policy.

After some discovery was conducted by the parties, Mr. Perkins filed a motion for summary judgment, seeking a judgment recognizing that the policies provided coverage for Hank’s actions. Farm Bureau then filed a motion for summary judgment, asserting that Hank’s actions were not an “occurrence” under the terms of its policies and that there was no coverage under the policies for his actions because they were intentional and were, therefore, excluded under the policies.

The trial court determined that Farm Bureau’s policies “provided coverage for plaintiffs’ injuries arising out of the negligent supervision of Hank Shaheen by Harry Shaheen and provided coverage for the vicarious liability of Harry Shaheen imposed as the result of the intentional acts of Hank Shaheen.” Accordingly, the trial court granted judgment in Mr. Perkins’ favor and denied Farm Bureau’s motion.

| .¿Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). The mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

Discussion

Farm Bureau contends that its policies’ exclusions exclude coverage for Hank’s actions. The exclusions are almost identical. The homeowner policy excludes personal liability coverage for bodily injury “resulting from intentional acts or directions by you or any insured. The expected or unexpected results of these acts or directions are not covered.” The farm liability policy excludes bodily injury “resulting from intentional acts of any insured or acts carried out at the direction of any insured. The expected and unexpected results of these acts or directions are not covered.”

“Insured” is defined in the homeowner policy as “you and residents of your household who are: a) your relatives or b) other persons under the age of 21 and in the care of any person named above.” It is defined in the farm liability policy as “you; and if you are: (1) An individual, ‘insured’ also means the following members of your household: (a) Your relatives; (b) Any other person under the age of 21 who is in the care of any person specified above.”

|3The parties do not dispute that Hank’s actions were intentional or that he is an insured under the policy. The clear language of Farm Bureau’s policies excludes coverage for bodily injury which results from the intentional acts of any insured. Therefore, Shane’s injuries and damages which resulted from Hank’s intentional attack on him are excluded under Farm Bureau’s policies.

Mr. Perkins urges that this court’s decision in McBride v. Lyles, 303 So.2d 795 (La.App. 3 Cir.1974), mandates against a decision in Farm Bureau’s favor. The policy in McBride excluded bodily injury or property damage which was “ ‘expected or intended from the standpoint of the insured.’ ” Id. at 798. Farm Bureau argued:

[T]he sons are included as persons insured under the definitions section contained within the personal liability provisions of the two policies. The policies exclude coverage of ‘bodily injury or property damage which is either expected or intended from the standpoint of the Insured.’ Since the injuries to the plaintiff were intentionally inflicted by the insureds, there can be no coverage.

Id. However, this court determined that coverage was not excluded as to the fathers for the intentional acts of their sons, stating:

In the present case the issue is whether this is insurance coverage for the fathers of two of the five boys who intentionally injured the plaintiff. The fathers are the insureds for purposes of this analysis. The injuries suffered by the plaintiff were not intended or expected from the standpoint of the insureds. Therefore, the exclusion does not apply, and the policies issued by Louisiana Farm Bureau to the defendants ... cover the injuries which are the subject of this action.

Id. at 800.

In McBride, the focus was on whether the plaintiffs injuries were “intended or expected from the standpoint of the insureds,” i.e., the fathers of the minors involved. Id. The language in the Farm Bureau policy at issue here is different from the policy language at issue in McBnde. Under the language of Farm Bureau’s policies in this case, there is no coverage for “bodily injury” which results from | /‘intentional acts ... by you or any insured,” and Mr. Shaheen’s standpoint has nothing to do with determining whether there is coverage for Hank’s actions.

In Travelers Insurance Co. v. Blanchard, 431 So.2d 913, 914-15 (La.App. 2 Cir.1983), the second circuit made the same distinction, explaining:

We find that the language of this exclusion clause is significantly different from the provision in McBride [303 So.2d 795].... Here, the exclusion is not restricted to intentional acts of the particular insured sought to be held liable, but broadly excludes coverage for all intentionally caused injury or damage by an insured person. Therefore, it clearly and unambiguously excluded coverage of the intentional thefts committed by ... an insured.

Then, in Flugence v. A & M Farms, Inc., 02-1054 (La.App. 3 Cir. 4/30/03), 843 So.2d 1279, writ denied, 03-1526 (La.9/26/03), 854 So.2d 364, a panel of this court rejected the holding in McBride, 303 So.2d 795. In Flugence, the Farm Bureau policy issued to A & M Farms also excluded coverage for injury “expected or intended from the standpoint of the insured.” Id. at 1282. An A & M employee committed an intentional act which caused damage to the plaintiff. Citing McBride, 303 So.2d 795, A & M asserted there was coverage even though its employee’s actions were intentional. The panel concluded that, because the employee was an insured under the policy, “his intentional act precludes application of coverage under the policy.” Flugence, 843 So.2d at 1282.

Contrary to Mr. Perkins’ argument, McBride, 303 So.2d 795, does not change our conclusion.

Mr. Perkins next argues that Mr. Shaheen’s negligent supervision of Hank is not addressed by Farm Bureau’s exclusions. The same argument was made in Neuman v. Mauffray, 99-2297 (La.App. 1 Cir. 11/8/00), 771 So.2d 283, where similar ^exclusionary language was at issue. The court rejected the plaintiffs contention that the parents’ negligent supervision did not fall within the exclusion, explaining:

The language of the exclusionary clause is not restricted to intentional acts of the particular insured sought to be held liable, but it is broad enough to exclude coverage for any loss intentionally caused, or at the direction of, an insured person, i.e., John Mauffray. Notwithstanding the existence and classification of a cause of action based on negligent supervision of the child by Mr. or Mrs. Welsh, any and all losses arising out of an intentional act of John Mauffray would fall within the exclusionary provisions pursuant to the language in the insurance policy.

Id. at 285. See also Hewitt v. Allstate Insurance Co., 98-221, pp. 9-10 (La.App. 4 Cir. 1/27/99), 726 So.2d 1120, 1124-25, where the court clarified the purpose of the exclusion:

The focus of the policy exclusion is on the cause of the damages, not the cause of action alleged. All damages caused by intentional acts are excluded, regardless of the classification of the cause of action against the individual defendants. [The plaintiff] cannot avoid the consequences of the policy language by attempting to couch her allegations against the [defendant parents] as negligent, rather than intentional.

This analysis is applicable here. Accordingly, this argument is without merit.

Lastly, Mr. Perkins argues that Directive 152 issued by the Louisiana Commissioner of Insurance mandates coverage for parents’ negligent supervision of their children. Directive 152 is a supplement to Directive 149, which concerns “Special Limits of Liability” clauses which had been inserted in homeowner’s policies. According to Directive 149, the clauses were “ostensibly placed in the policies] to limit the liability of the insuring company as a consequence of the parents’ statutorily imposed vicarious liability resulting from negligent acts of their minor children.” (Emphasis added.) These directives are not applicable to the provisions at issue herein as these provisions do not address negligent acts.

|fiIn conclusion, neither of the policies issued by Farm Bureau to Harry Shaheen provide coverage for the injuries and damages sustained by Shane Perkins on August 17, 2002, and the judgment of the trial court is reversed. Judgment is granted in favor of Farm Bureau Mutual Insurance Company, and Ralph Perkins’ claims against it are dismissed. All costs of this appeal are assessed to Ralph Perkins.

REVERSED.

      . Shane attained the age of legal majority during the course of this litigation and was substituted as plaintiff in lieu of his father.


author: 11 SULLIVAN, Judge.

text:
    SUCCESSION OF Nellie Johnson Fruge YOUNG.
    No. 2003-1233.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Adam Gerard Caswell, Eunice, LA, for Appellee, Lisa A. Fruge.
    Marcus L. Fontenot, Ville Platte, LA, for Appellant, Drucella Harper.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   11 SULLIVAN, Judge.

Drucella Harper appeals the trial court’s denial of her motion to annul the probated testament of her mother, Nellie Young. We affirm.

Facts

On October 2, 2001, Nellie Young executed a Last Will and Testament in notarial form, leaving all of her property to her daughter, Lisa A. Fruge. She died on November 5, 2001. Drucella and Lisa are two of Mrs. Young’s four living children. In February 2003, Drucella filed a petition for appointment of administratrix, alleging that her mother died intestate and seeking to be appointed administratrix of her estate. Lisa then probated Mrs. Young’s will. Thereafter, Drucella filed a motion to annul the probated testament, asserting it was invalid because Mrs. Young could not physically read when she executed the will and the will was not executed in the form required by La.Civ.Code art. 1579, which provides the form for testators who cannot read.

After a hearing on the motion to annul, the trial court determined that Drucella failed to prove by clear and convincing evidence that Mrs. Young could not physically read when she executed her will. Drucella appeals.

Discussion

Mrs. Young’s will was executed pursuant to La.Civ.Code art. 1577, which requires that the testator know how to sign her name and to read and be physically able to do both. As noted above, Dru-eella contends that the will should have been executed in the form provided in La.Civ.Code art. 1579 because her mother no longer had the physical ability to read.

The proponent of a testament must prove the authenticity and statutory compliance of the testament. La.Code Civ.P. art. 2903. The testator’s ability to read | ¡,is an element of testamentary capacity, not of authenticity or formality. La. Civ.Code art. 1577; Succession of Young, 96-1206 (La.App. 3 Cir. 3/5/97), 692 So.2d 1149. Testamentary capacity is presumed, and the opponent bears the burden of proving by clear and convincing evidence that the testator did not have such capacity. Succession of Lyons, 452 So.2d 1161 (La.1984). To satisfy the clear and convincing standard, the evidence must show “the existence of the disputed fact [is] highly probable, that is, much more probable than its non-existence.” Succession of Bartie, 472 So.2d 578, 582 (La.1985).

“Whether a testator can read is a question of fact. Absent manifest error, the trial court’s finding will not be overturned on appeal.” Succession of Fletcher, 94-1426, p. 4 (La.App. 3 Cir. 4/5/95), 653 So.2d 119, 121 (citations omitted), writ denied, 95-1105 (La.6/16/95), 655 So.2d 338.

It is not disputed that Mrs. Young knew how to read. The dispute is whether her medical conditions of diabetes, high blood pressure, and high cholesterol resulted in her physically being unable to read. Dr. R.V. Christian, an optometrist, who had examined Mrs. Young but was not her treating physician, testified that these three conditions are very detrimental to eyesight. He reviewed records he had received from Mrs. Young’s eye doctors and testified that her eye sight was very poor, 20/200 in June 2001. However, he admitted that her eyesight fluctuated, having been measured 20/200, 20/150, 20/80, and 20/300 at different times. Also, as the trial judge noted, Dr. Christian would not state that it was impossible for her to read her will as written, explaining that she would have had to have some type of magnifier to do so.

IsDrucella testified that she had not seen her mother for approximately one and one-half years prior to her death. She and her son testified that Mrs. Young had told them on occasion that she could not see well enough to read and that sometimes she needed assistance walking because she could not see. Her son also testified that he gave Mrs. Young a Valentine in February 2001 and that she told him she could not read it. Lisa testified that Mrs. Young could read and checked her own bank statements. Mrs. Young’s hairdresser, Judy Reed, testified that Mrs. Young wrote her a cheek almost every week when she styled her hair. A copy of a check that Mrs. Young had written to her one week after she executed her will was introduced into evidence. The attorney who drafted the will and his office personnel who witnessed Mrs. Young’s execution of the will testified that Mrs. Young appeared to follow along as he read her will out loud.

The trial court thoroughly reviewed the evidence and the jurisprudence on this issue, concluding Drucella did not carry her burden of proof:

“I ... find that number one, she was able to read. She knew how to read. By the only expert testimony received Dr. Christian stated that it was not impossible with magnification devices, television or otherwise that she could read. Article 1579 of this Civil Code says, “When a testator does not know how to read or is physically impaired to the extent that he cannot read ... ”, doesn’t say that he has to read the will, it says she has to be able to read. You couple that requirement legally with — I make a fact finding that she was capable of reading. Due to the fluctuations in her eyesight, it has not been proven by clear and convincing evidence that she was unable to read on the date in question. I take into consideration further the testimony of Mr. Caswell, his two secretaries and in particular Ms. Judith Reed and the check written October 9, 2001. So with that I’m going to deny the Motion to Annul the Probated Testament.

This case is very similar to the case of Naquin v. Hile, 536 So.2d 676 (La.App. 3 Cir.1988), where the deceased’s eyesight was also 20/200. Much of the testimony regarding the deceased’s daily activities and abilities was similar to the testimony in |4this case. A panel of this court noted the conflict between the expert testimony that the deceased could not have read the will she executed and the lay testimony that the deceased often appeared to be reading her prayer book or mail and upheld the trial court’s conclusion that the plaintiff did not prove by clear and convincing evidence that the deceased was unable to read.

We have reviewed the record and find nothing which demonstrates that the trial court’s determination that Mrs. Young could physically read at the time she executed her will is manifestly erroneous. Accordingly, we cannot disturb its decision. Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993).

The judgment of the trial court is affirmed. All costs of this appeal are assessed to Drueella Harper.

AFFIRMED.