author: I, GREMILLION, Judge.

text:
    Rebecca Ann HARDIE, et al. v. PROFESSIONAL PHYSICAL REHABILITATION HOSPITAL, LLC, etc.
    No. 2004-445.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Joseph T. Dalrymple, Rivers, Beck, Dal-rymple, & Ledet, Alexandria, LA, Russell Purvis, Jr., Smith, Taliaferro, Seibert, Jonesville, LA, for Plaintiffs/Appellees, Rebecca Ann Hardie, Julie Renee Cotton, Allen Ray Parker, Don Mathew Parker.
    Edward E. Rundell, Gold, Weems, Bruser, et al., Alexandria, LA, for Defen-danVAppellant, Professional Physical Rehabilitation Hospital.
    Madeline Lee Bolen, Parker, & Brenner, Ltd, Alexandria, LA, for Defendant Appel-lee, Kraig Allen Ward, M.D.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   I, GREMILLION, Judge.

In this case, the defendant-appellant, Professional Physical Rehabilitation Hospital, L.L.C., appeals the judgment in favor of the plaintiff, Rebecca Ann Hardie, on the issue of the available limits of Professional Rehab’s insurance policy issued by CNA. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Hardie and her three siblings brought suit following the death of their mother, Emma Parker, due to the negligence of Professional Rehab. Parker was admitted to Professional Rehab on January 20, 1998, and died on January 27, 1998, of a heart attack at a nearby hospital. Hardie filed a motion for summary judgment on the issue of insurance coverage and the applicable liability limit she and her siblings each had under the insurance policy urging that the $100,000 limit was applicable to each of their claims, subject to the collective limit of the CNA policy totaling $300,000.

Following a hearing, the trial court granted summary judgment in favor of Hardie finding that “the policy issued to defendants provides coverage so that each claim by each plaintiff is subject to the $100,000.00 ‘each person limit’ and that all plaintiffs [sic] claims are subject to the ‘total limit’of $300,000.00.”

Professional Rehab now appeals.

ISSUES

Professional Rehab assigns as error:

1. The trial court’s finding that individual mental anguish and loss of consortium claims of each wrongful death/survival action plaintiff were subject to the $100,000 “each person limit” of the CNA policy and that Hardie’s claims were 12subject to the policy’s $300,000 “total limit.”

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Civ.Code art. 966(B)(C). This means that judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

Interpretation of an insurance policy is a question of law, and we have authority to construe the provisions of the policy in order to resolve questions of coverage. Stoute v. Long, 98-683 (La.App. 3 Cir. 12/9/98), 722 So.2d 102.

“Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract.” La.Civ.Code art. 2048. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art.2050. “A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.” La.Civ.Code art.2056. If an exclusionary clause is deemed ambiguous, an insurance policy must be liberally 1¡¡construed in favor of coverage; provisions susceptible of different meanings must be interpreted to render coverage effective rather than ineffective. La.Civ. Code art.2049; see Capital Bank & Trust Co. v. Equitable Life Assurance Soc’y, 542 So.2d 494 (La.1989). If more than one reasonable view of the exclusion proviso exists, “any ambiguity must be construed against the insurance company and in favor of the reasonable construction that affords coverage.” RPM Pizza, Inc. v. Auto. Cas. Ins. Co., 601 So.2d 1366, 1369 (La.1992).

The issue in this case is whether the insurance policy provided $100,000 worth of coverage (with a maximum of $300,000 for all claims) to each plaintiff for wrongful death and/or Lejuene bystander claims under La.Civ.Code art. 2315.6. Professional Rehab discusses at length Hardie’s failure to prove a Lejeune claim. However, that issue is not before us. The summary judgment was granted solely on the applicable limits of the insurance policy. The merits of the claims are, thus, reserved for trial.

The trial court held:

The court finds that the language contained in the policy issued to defendant is subject to more than one reasonable interpretation. The policy does not state whether the $100,000.00 “each person limit” applies to all claims by all persons as the result of injury or death of another person. Also, the policy does not specify whether its $100,000.00 limitation applies to all claims, of whatever type, by each person who claims bodily injury or to all claims by all persons due to injury or death of another person.
The court finds there is no material issue of fact and that mover is entitled to judgment as a matter of law. The policy issued to defendants provides coverage so that each claim by each plaintiff is subject to the $100,000.00 “each person limit” and that all plaintiff claims are subject to the “total limit” of $300,000.00.

| ¿THE POLICY

CNA issued Professional Rehab a policy with a Professional Liability Insuring Agreement and a General Liability Insuring Agreement. The Professional Liability portion of the policy in the “Limits of Your Coverage” section provides for $100,000 ■ “each person limit” and a $300,000 “total limit.” The CNA insurance policy states (Emphasis added):

Limits of Your Coverage

The Limits of Your Coverage shown on the Declaration Page apply as follows: The “each person limit” is the most we shall pay under the Insuring Agreement for all claims resulting from the injury or death of any one person, including any claims for loss of services and/or for mental distress.
The “total limit” is the most we shall pay for all claims covered under the insuring Agreement. The “total limit” applies regardless of the number of person [sic] bringing claims, and regardless of the number of claims brought under the Insuring Agreement.

The term “injury” is not defined in the Professional Liability portion of the policy. However, in the General Liability portion of the policy in which CNA agrees to “pay those sums that those covered become legally obligated to pay as damages because of bodily injury,” the term “bodily injury” is defined as “bodily injury, sickness, or disease sustained by a person, including death.”

Hardie argues that the broader “injury” in the Professional Liability portion of the policy, since not defined, includes any type of injury including those injuries one suffers as part of a wrongful death claim, as well as the those injuries which arise pursuant to a Lejeune claim. Professional Rehab, on the other hand, argues that the word “injury” in the Professional Liability portion of the agreement |,4s subject to the definition of “bodily injury” as defined in the general liability portion of the policy. We agree with Hardie. Following the normal rules pertaining to the construction and interpretation of insurance contracts, we find that the word “injury” covers any injury recognized by the law. The words of the policy are clear and do not lead to absurd consequences. CNA agrees to pay the “each person limit” for all claims resulting from injury. Undoubtedly, a wrongful death claim is the petitioner’s action for the injuries he/she suffers upon the death of a loved one. CNA could have used the term “bodily injury” but chose not to do so. It further could have limited its coverage by modifying its language in numerous ways. As it reads now however, an injured person, such as a survivor in a wrongful death claim, is covered under the “each person limit” for all claims. The same result is reached when addressing whether an Article 2315.6 claim is covered. A Lejeune bystander claim arises from the mental and emotional injuries suffered by the plaintiff from viewing the negligent treatment of the primary victim. As such, the plaintiff suffers injuries which are com-pensable under the law. Thus, the individual is covered under the policy for his injury.

Both parties cite several Louisiana Supreme Court cases in support of their position. In Crabtree v. State Farm Insurance Co., 93-0509 (La.2/28/94), 632 So.2d 736, Mrs. Crabtree, who was following behind her husband in a separate vehicle, witnessed him being struck by a vehicle as he operated his motorcycle. When she approached him she found that his leg was almost completely severed from the knee down. The Crabtrees argued that the wife’s Lejeime claim was a separate “bodily injury,” thus, entitling her to her own per person limit, subject to the per | ^accident aggregate. State Farm argued that Mrs. Crabtree’s claim was “derivative” and, therefore, subject to the singly policy limit attributable to Mr. Crabtree. In the alternative, State Farm argued that mental anguish did not qualify as “bodily injury.” The section in the State Farm policy pertaining to the limits of liability stated:

The amount of bodily injury liability coverage is shown on the declarations page under “Limits of Liability — Coverage A — -Bodily Injury, Each Person, Each Accident”. Under “Each Person” is the amount of coverage [$25,000] for all damages due to bodily injury to one person. “Bodily Injury to one person ” includes all injury and damages to others resulting from this bodily injury. Under “Each Accident” is the total amount of coverage [$50,000], subject to the amount shown under “Each Person”, for all damages due to bodily injury to two or more persons in the same accident.

Id. at 739.

The supreme court discussed several court of appeal decisions finding that loss of consortium claims are derivative and, therefore, subject to the per person limits. However, the supreme court found that it was unnecessary to determine whether a Lejeune claim is derivative, instead finding that, pursuant to the policy provisions, even if the claim “derived” or “resulted from” her husband’s injuries, it constituted a “bodily injury” within the definition of the policy. It further found that construing the policy as a whole, the terms “bodily injury to one person” did not encompass Mrs. Crabtree’s claim, therefore, it was not subject to the single person policy limit.

The supreme court then discussed whether, under this particular policy, mental anguish fell within the definition of “bodily injury.” The supreme court emphasized that despite the holdings in other cases, they “do not provide the final word on how this policy should be interpreted.” Id. at 743. The supreme court then |7found that the definition of “bodily injury” in the policy was ambiguous and that the drafters of the policy could have easily restricted its definition to only external physical injuries.

In the instant case, we find that the word “injury” easily includes both mental and physical injuries. Webster’s Collegiate Dictionary 644 (11th ed.2003), defines injury as “hurt, damage, or loss sustained,” which easily encompasses both wrongful death and Lejeune claims. In following the supreme court’s holding in Crabtree, we conclude that the policy drafters could have easily limited its coverage by defining “injury” and limiting its scope to only physical external injuries.

In Ferrell v. Fireman’s Fund Insurance Co., 96-3028 (La.7/1/97), 696 So.2d 569, the Ferrells were injured in a multi-vehicle accident. Mrs. Ferrell sought coverage for her loss of consortium claim pursuant to the per accident bodily injury limits. The issue was whether she was covered separately out of the per accident bodily injury limits for her own “bodily injury” or whether her loss of consortium claim was derivative of her husband’s injuries and, therefore, must be satisfied out of the per person limits. While the supreme court found that loss of consortium claims are derivative of the primary victim’s injuries as a matter of law, they also stated:

[B]ecause an insurance policy is a contract between the parties, and the parties are free to contract regarding the extent of coverage contained therein, reference must be made to the language of the policy to determine the extent of coverage.

Id. at 576.

However, the supreme court went on to say:

Upon examination of the language of the policy, we hold that |Rdamages for loss of consortium are covered under the policy provision providing coverage for “damages for bodily injury for which any covered person becomes legally responsible because of an auto accident.” .... Unlike Crabtree, however, where we determined that mental anguish constituted a separate “bodily injury”, we do not believe that loss of consortium is covered as a separate bodily injury under the per accident bodily injury limits of the policy. Coverage for loss of consortium exists solely under the per person bodily injury limits of the policy because loss of consortium is derivative of the primary victims [sic] injuries and not a separate bodily injury.

Id.

We find the language in this policy more closely analogous to the policy in Crabtree. Moreover, we find the issue of whether the wrongful death claim “derives” from the primary victim’s injuries is irrelevant. The insurance company is in a superior position to clarify the meanings of its policy and could have easily excluded wrongful death claims from being covered individually. On the contrary, the plain language infers that all claims for injury, whether derivative or not, are covered. Additionally, the supreme court’s decisions appear to be somewhat inconsistent regarding the “derivative” nature of either a wrongful death or Lejeune claim. Both causes of action arise only after an injury to another person. However, the wrongful death claim has been classified as “derivative,” (as a matter of law) whereas the loss of consortium claim is not. In another case, Walls v. American Optical Corp., 98-0455, p. 15 (La.9/8/99), 740 So.2d 1262, 1274, the supreme court again addressed the issue of whether a wrongful death claim is derivative, stating:

We do not consider the wrongful death action to be a derivative cause of action. Rather the wrongful death action is an independent and distinct action that arises even in the absence of a viable personal injury action by the direct tort victim and compensates the beneficiaries for their own individual injury arising out of the victims death.

Nevertheless, the supreme court has emphasized that coverage 1 exterminations should primarily be based on the individual policy provisions. We find that most persuasive, and for the aforementioned reasons, find this particular policy provides $100,000 per person limits for both wrongful death and/or Le-jeune claims up to an aggregate of $800,000 for all claims.

CONCLUSION

The trial court’s judgment granting summary judgment in favor of the plaintiff-appellee, Rebecca Ann Hardie, is affirmed. All costs of this appeal are assessed against the defendant-appellant, Professional Physical Rehabilitation Hospital, L.L.C.

AFFIRMED.

      . In Crabtree, 632 So.2d at 740, the court stated: "Because our decision must rest solely on the terms of the insurance contract between the parties.”


source: Caselaw Access Project

author: J^JIMMIE C. PETERS, Judge.

license: Public Domain

text:
    James FALGOUT v. Walter JESTER, Hampton Inc., Hampton Automotive Inc., d/b/a Hampton Toyota and CNA Insurance Co.
    No. 2004-0434.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Victor J. Versaggi, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for Plaintiff/Appellant James Falgout.
    Robert L. Ellender, Attorney at Law, Lafayette, LA, for Defendants/Appellees Beau LeBlanc, Hampton Inc. And Hampton Automotive, d/b/a Hampton Toyota.
    Stephen J. Moore, Richard G. Duplantier, Jr., Peter A. Bourgeois, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendani/Appellee Columbia Casualty Insurance Company.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   J^JIMMIE C. PETERS, Judge.

James Falgout and Leon Touchet, the plaintiffs in these consolidated actions, appeal the trial court’s grant of a partial summary judgment on the issue of insurance coverage in favor of one of the defendants, Columbia Casualty Insurance Company. For the following reasons, we affirm the trial court’s judgment in all respects.

DISCUSSION OF THE RECORDS

On September 14, 2001, James Falgout and Leon Touchet were both involved in a motor vehicle accident while traveling on U.S. Highway 167 in Lafayette Parish, Louisiana. They suffered personal injuries when their motorcycles were struck by a vehicle owned by the Hampton Toyota dealership in Lafayette, Louisiana, and being driven by Walter Jester. At the time of the accident, Jester was test driving the vehicle in contemplation of purchasing it from Hampton Toyota. Falgout and Touchet brought separate suits in an effort to recover the damages they sustained in the accident.

Falgout filed suit on July 24, 2002, and Touchet filed suit on August 14, 2002. Both men initially named Hampton Toyota, Jester, and Columbia Casualty Insurance Company (Columbia Casualty) as defendants. Columbia Casualty is Hampton Toyota’s general liability insurance carrier. In April of 2003, Falgout and Touchet both added Beau LeBlanc, a Hampton Toyota salesman, as a party defendant. On April 4, 2003, and before the amendments adding LeBlanc as a defendant, Hampton | ^Toyota filed a motion to consolidate the two actions. The trial court executed an order to that effect on August 4, 2003.

In their original petitions, Falgout and Touchet asserted that they both had settled their claims against Jester’s liability insurer, State Farm Mutual Automobile Insurance Company, and that Jester remained in the litigation “as a nominal defendant to the extent necessary to pursue the claim for excess damages.” They further asserted that Columbia Casualty provided liability insurance coverage to Jester as an insured or omnibus insured under its policy.

On July 16, 2003, and before the trial court executed the consolidation order, Columbia Casualty filed separate motions for partial summary judgment in each of the pending actions. In both motions, Columbia Casualty asserted that its policy precluded liability coverage to Jester for his negligence in causing the accident. After a November 10, 2003 hearing, the trial court granted the motions and rendered judgment to the effect that the Columbia Casualty policy provided no liability coverage for Jester. In response to this ruling, Falgout and Touchet filed separate appeals. These appeals have been consolidated and are now before us. Both Falgout and Touchet have filed the same four assignments of error. The first three address the correctness of the trial court’s interpretation of the policy language and the last asserts that the trial court’s decision is premature.

OPINION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether or not a summary judgment is appropriate in any given case. Cormier v. Albear, 99-1206 (La.App. 3 Cir. 2/2/00), 758 So.2d 250. “The summary judgment procedure is designed to secure the just, 13speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). If there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law, the motion for summary judgment “shall be granted.” La. Code Civ.P. art. 966(C)(1) (emphasis added).

The Columbia Casualty policy is described as both a garage coverage policy and an automobile dealer’s policy. The initial declarations page identifies the policy as a “GARAGE COVERAGE” policy and describes Hampton Toyota as a corporation. A second declarations page located toward the end of the policy is entitled “Auto Dealer’s General Declarations” and identifies Hampton Toyota’s business as that of a “Franchised Auto Dealer.” These two portions of the policy list the various coverages provided by Columbia Casualty. The only coverage at issue in this litigation is that which might be afforded to one who has an accident while test driving a Hampton Toyota vehicle in contemplation of purchasing the vehicle.

The pages following the initial declarations page set forth the specific provisions of the policy, including the following language which appears under “SECTION II-LIABILITY COVERAGE”:

“GARAGE OPERATIONS”-COVERED “AUTOS”
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from “garage operations” involving the ownership maintenance or use of covered “autos”.

Garage operations is defined in the policy as follows:

“Garage operations” means the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations. “Garage operations” includes the ownership, maintenance or use of the “autos” indicated in SECTION I |4of this Coverage Form as covered “autos”. “Garage operations” also include all operations necessary or incidental to a garage business.

In that same section of the policy, the definition of an “insured” appears. That definition reads in pertinent part:

1. Who is An Insured
a. The following are “insureds” for covered “autos”.
(1) You for any covered “auto”.
(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(d) Your customers, if your business is shown in the Declarations as an “auto” dealership. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an “insured” but only up to the compulsory or financial responsibility law limits where the covered “auto” is principally garaged.
(ii) Has other available insurance (whether primary excess or contingent) less than the compulsory financial responsibility law limits where the covered “auto” is principally garaged, they are an “insured” only for the amount by which the compulsory or financial responsibility law limits exceed the limit of their other insurance.

Columbia Casualty relies on the policy definition of an insured to deny coverage to Jester because he was a customer of the automobile dealership side of the business and he had liability coverage that exceeded the minimum limits required by state law. See La.R.S. 32:900.

It is not disputed that, at the time of the accident:

1. Hampton Toyota is in the business of commercially selling vehicles.
|fi2. Jester, in contemplation of purchasing a vehicle, was test driving one of Hampton Toyota’s vehicles.
3. Columbia Casualty had in full force and effect an insurance policy issued to Hampton Toyota which included various types of insurance coverage the application of which is governed by the terms and conditions of the policy.
4. Jester was insured for liability insurance purposes with State Farm Mutual Automobile Insurance Company with policy limits of $50,000.00 per person and $100,000.00 per accident.
5. Falgout and Touchet had settled their claim against Jester’s liability insurer.

In their first three assignments of error, Falgout and Touchet assert that the trial court erred in concluding that the language excluding Jester from coverage did not violate Louisiana law, that the exclusionary language was applicable to Jester, and that the language was not ambiguous. We will consider them together.

In support of their assertions, Falgout and Touchet refer this court to the decision in Savana v. Certain Interested Underwriters at Lloyd’s London, 01-2450 (La.App. 1 Cir. 7/2/02), 825 So.2d 1242. However, we find that Savana supports Columbia Casualty’s position and answers every issue raised in the first three assignments of error.

At the time of the accident sued upon in Savana, Cynthia Forrester was operating a “loaner” vehicle supplied to her by Auto Depot, Inc., the garage where her vehicle was being repaired. Ms. Forrester struck a vehicle driven by Julie B. Savana, who filed suit against Ms. Forrester; her liability insurer, U.S. Agencies; Auto Depot, Inc.; its insurer, Certain Interested Underwriters at Lloyds London (Lloyd’s); and her own uninsured motorist carrier, Farm Bureau Mutual Insurance Company. The Lloyd’s policy contained the same exclusionary language found in the Columbia Casualty policy. The trial court rejected Lloyd’s request for relief from any liability | ^associated with Ms. Forrester’s negligence. In reversing the trial court, the first circuit stated the following:

In Marcus v. Hanover Insurance Co., 98-2040 (La.6/4/99), 740 So.2d 603, the Supreme Court interpreted a business use exclusion in an insurance policy and stated that an insurance policy is a contract that constitutes the law between the parties. If the wording of the insurance policy is clear and expresses the intent of the parties, the policy must be enforced as written. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose reasonable conditions upon the obligations they contractually assume. 740 So.2d at 606.
Lloyd’s insurance policy unambiguously indicates that coverage to a customer of Auto Depot, Inc., which is listed as having coverage under “Garage Liability — Dealers” on the declarations page of the policy, is provided only when the customer either lacks automobile insurance or has insurance which fails to meet the minimum amount required by the Louisiana Motor Vehicle Responsibility Law, La. R.S. 32:900. Because Forrester was insured by U.S. Agencies in an amount which satisfies the statutory minimum, the exclusion in Lloyd’s policy excepts Forrester from coverage under the policy.
With all due respect to the majority in Stanfield v. Hartford Acc. and Indem. Co., 89-1249 (La.App. 3 Cir. 5/22/91), 581 So.2d 340, this Court finds the distinction made between the auto dealership customers and the garage customers to be an artificial one, and we agree with Judge Guidry’s dissent, which found no ambiguity or conflict in the provisions of the policy. Further, the facts of Hargrove v. Missouri Pacific Railroad Company, 2000-0228 (La.App. 3 Cir. 1/10/01), 780 So.2d 454, writ granted, 2001-1228 (La.6/29/01), 794 So.2d 804, are distinguishable from the case at bar in that the vehicle in Hargrove was a rental vehicle provided to the customer and was co-leased by the dealership, the result of which was that sections of'the insurance policy at issue in that case applied to create issues of liability that are not present in this case before the Court. Therefore, we find the Hargrove case is not dispositive of the facts in the case at bar.
Instead, we prefer to follow the opinions of the Fourth Circuit in the cases of Gambino v. Lamulle, 97-2798 (La.App. 4 Cir. 6/10/98), 715 So.2d 574, and Baker v. Kenney, 99-2950 (La.App. 4 Cir. 5/3/00), 767 So.2d 711, writ denied, 2000-2153 (La.10/13/00), 771 So.2d 650, which interpreted substantially the same policy language as the policy in the case at bar. We note that under La. R.S. 22:671, the primary liability coverage for a loaner vehicle is provided by the driver’s policy, not the service dealer’s policy. Thus, Forrester’s policy which met the requirements of La. R.S. 32:900 provided the plaintiff with compensation contemplated by the Louisiana Motor Vehicle Responsibility Law. Further, because the policy provided coverage in the event the driver of the covered vehicle lacks the insurance coverage |7required by La. R.S. 32:900, we find that the language of the policy does not violate public policy and should be interpreted as written.

Id. at 1244-45 (footnote omitted).

Savana, Gambino, and Baker can be distinguished from the instant case in that, in those three cases, the vehicles at issue were vehicles loaned to the party involved in the accident to replace a vehicle under repair and not loaned for a test drive. As pointed out in Savana, because of that distinction, the three cases conflict with this circuit’s decision in Stanfield v. Hartford Accident & Indemnity Co., 581 So.2d 340 (La.App. 3 Cir.1991).

In Stanfield, this circuit interpreted language similar to the Columbia Casualty language and drew a distinction between the dealership side and the garage side of the business at issue. The majority concluded that exclusionary language applied to a customer of the dealership side, but did not apply to a customer of the garage side. We do not have to determine whether Stanfield and Hargrove are correct in light of Savana, Gambino, and Baker because Jester’s activity arose from the dealership side of Hampton Toyota’s business.

Falgout and Touchet also argue that the exclusionary language is ambiguous in that it does not define the term “customer.” Citing the definition of customer found in The Merriam-Webster Dictionary, August 1974, they argue that, because there is no evidence that Jester had done business with Hampton Toyota in the past, he is not a customer within the meaning of the Columbia Casualty exclusion. We disagree. Louisiana Civil Code Article 2047 provides that when interpreting a contract, “[t]he words ... must be given their generally prevailing meaning,” and that “[wjords of art |sand technical terms must be given their technical meaning when the contract involves a technical matter.” We do not find that the term “customer” is a word of art or a technical term. Therefore, it must be given its generally prevailing meaning.

We find that the generally prevailing meaning of the word “customer” would include a person such as Jester. Additionally, while Webster’s Third New International Dictionary, published in 1986 by Merriam-Webster Inc., contains a definition similar to that cited by Falgout and Touchet, it also contains several other definitions which would suffice to establish someone such as Jester as a “customer” of Hampton Toyota.

Considering the foregoing, we find no merit in the first three assignments of error.

In their final assignment of error, Falg-out and Touchet assert that the trial court’s decision was premature because issues of material fact exist that require additional clarification by discovery. They list as clarification needs whether Jester was a customer of Hampton Toyota and determination of the intention of the parties to the insurance contract given the ambiguous nature of the exclusionary language.

We first note that the litigation began in mid-2002, the motions for the partial summary judgments now before this court were filed on July 16, 2003, and these motions were not heard by the trial court until November 10, 2003. The appellate records reflect no discovery activity during that entire period. Additionally, having already determined that Jester was a customer of Hampton Toyota and that the exclusionary language is not ambiguous, we find no need for additional discovery to resolve the limited issue before us. We find no merit in this assignment of error.

DISPOSITION

laFor the foregoing reasons, we affirm the trial court judgment in all respects. We assess all costs of this appeal to James Falgout and Leon Touchet.

AFFIRMED.

      . It is unclear from the pleadings whether both men were on the same motorcycle or were each operating separate motorcycles at the time of the accident. However, resolution of this factual issue is not required to dispose of this appeal.

      . The Hampton Toyota dealership is referred to in the pleadings as Hampton, Inc., and Hampton Automotive, Inc., d/b/a Hampton Toyota. For purposes of this opinion, these entities will be referred to collectively as "Hampton Toyota.”

      .Columbia Casualty was erroneously identified in both petitions as CNA Insurance Company. However, it is not now disputed that the appropriate defendant is Columbia Casualty.

      . In brief, Falgout and Touchet assert that this reference book defines a customer as one who is "a regular or frequent buyer.”


author: PETERS, J.

text:
    Leon TOUCHET v. Walter JESTER, Hampton Inc., Hampton Automotive Inc. d/b/a Hampton Toyota and CNA Insurance Co.
    No. 04-0435.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.
    James H. Domengeaux, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for Plaintiff/Appellant, Leon Touchet.
    Robert L. Ellender, Attorney at Law, Lafayette, LA, for Defendants/Appellees, Beau LeBlanc, Hampton Inc. and Hampton Automotive d/b/a Hampton Toyota.
    Stephen J. Moore, Richard G. Duplantier, Jr., Peter A. Bourgeois, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee, Columbia Casualty Insurance Company.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   PETERS, J.

We affirm the trial court judgment in all respects for the reasons given in Falgout v. Jester, 04-0434 (La.App. 3 Cir. 9/29/04), 883 So.2d 515. We assess all costs of this appeal to James Falgout and Leon Tou-chet.

AFFIRMED.


author: | JETERS, J.

text:
    Willard JOHNSON (Deceased) v. CITY OF LAKE CHARLES.
    No. 04-0455.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Kevin L. Camel, Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appel-lee, Willard Johnson (Deceased).
    Christopher John, Assistant City Attorney, Lake Charles, LA, for Defendant/Appellant, City of Lake Charles.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   | JETERS, J.

The City of Lake Charles appeals the judgment of the workers’ compensation judge awarding Rena Sonnier Johnson, the widow of Willard Johnson, weekly benefits in the amount of $82.70, beginning on the date of Mr. Johnson’s death, October 19, 2002. Mrs. Johnson has answered the appeal, seeking a reversal of the workers’ compensation judge’s denial of an award of attorney fees and seeking an award of attorney fees for the work performed on appeal. For the following reasons, we affirm the judgment of workers’ compensation judge and reject Mrs. Johnson’s request for attorney fees.

The facts giving rise to this litigation are not in dispute. Willard Johnson and Rena Sonnier Johnson were married on January 10,1947. They lived together without separation until Mr. Johnson’s death. Mr. Johnson worked for the Lake Charles Fire Department for approximately twenty-six years and retired in 1977. At the time of his retirement, Mr. Johnson’s average weekly wage was $254.46. In July of 2002, or almost twenty-five years after his retirement, Mr. Johnson was diagnosed with lung cancer. He died of that disease on October 19, 2002.

At the time of his death, Mr. Johnson’s income was comprised of his retirement pension from the City of Lake Charles and social security benefits. Mrs. Johnson also drew a small social security check. After Mr. Johnson’s death, Mrs. Johnson began receiving survivor’s benefits from the retirement pension, which amounted to less than one-half the amount previously paid to her husband. Additionally, her social security check was stopped, and she began receiving an amount from her husband’s social security benefits, again in an amount less than that previously paid to her husband.

|2On December 30, 2002, and after her demand for death benefits pursuant to La. R.S. 23:1231 was rejected by the City of Lake Charles, Mrs. Johnson filed a disputed claim for compensation. The matter ultimately went to trial on January 8, 2004. After completion of the evidence, the workers’ compensation judge stated the following oral reasons in rendering judgment:

The court finds the causation is proven here. This is clearly a heart and lung case. Mr. Johnson clearly died of lung cancer, and he had been a firefighter for a number of years with the Lake Charles Fire Department. And under Revised Statute 23:1251, a surviving spouse is conclusively presumed to be wholly and actually dependent upon the deceased employee with whom he or she is living at the time of the accident or death. But what we have got here is not enough to overcome the ■ conclusive presumption, so Mrs. Johnson is entitled to recover benefits. No penalties and attorney’s fees are owed in this matter as the court finds that the matter has been reasonably controverted.

The parties had stipulated that the weekly death benefit based on Mr. Johnson’s average weekly wage would be $82.70. The workers’ compensation judge signed a judgment on January 15, 2004, awarding Mrs. Johnson weekly death benefits in that amount, beginning on the date of Mr. Johnson’s death. In the judgment, the workers’ compensation judge also rejected Mrs. Johnson’s request for attorney fees. This appeal followed the signing of that judgment.

OPINION

Appeal of the City of Lake Charles

The City of Lake Charles does not dispute that Mr. Johnson died of lung cancer and that the litigation is governed by the provisions of La.R.S. 33:2581, the Firefighter’s Heart and Lung Statute. That statute provides as follows:

Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana |c¡to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

Although not specifically incorporated into the Louisiana Workers’ Compensation Act, this statute and its provision of a service-related occupational injury is applicable to workers’ compensation cases. Coats v. City of Bossier City, 31,164 (La.App. 2 Cir. 10/30/98), 720 So.2d 1283, writ denied, 99-0019 (La.2/12/99), 738 So.2d 581. Under the Louisiana Workers’ Compensation Act, “the dependent of an employee whose death is caused by an occupational disease ... shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031.1(A).

The City of Lake Charles does not dispute the workers’ compensation judge’s determination that Mr. Johnson died from a compensable occupational disease. Rather, it asserts that the workers’ compensation judge erred in concluding that Mrs. Johnson was entitled to weekly death benefits where her husband had retired and was receiving no active wages at the time of his death.

In asserting this argument, the City of Lake Charles relies on Arledge v. Dolese Concrete Co., 00-0363 (La.App. 1 Cir. 6/6/01), 807 So.2d 876, writ denied, 01-2357 (La.11/16/01), 802 So.2d 617, and its interpretation of La.R.S. 23:1231 as it applies to death benefit cases arising from occupational diseases in which the death occurred after retirement.

I/Fhe statute at issue in this litigation and in the Arledge case, La.R.S. 23:1231(A), provides in pertinent part that when an injury causing death to an employee occurs, there “shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.” When the sole legal dependent is the widow of the employee, the weekly benefit shall be “thirty-two and one-half per centum of wages.” La.R.S. 23:1232(1). Additionally, when the surviving spouse was living with the deceased employee at the time of his death, she is “conclusively presumed to be wholly and actually depen-dant upon [him].” La.R.S. 23:1251(1).

In Arledge, Wesley John Arledge was employed by Dolese Concrete Company between 1956 and 1984. He allegedly contracted silicosis as a result of his employment environment and died from that condition on October 2, 1996. Mr. Arledge’s widow then sought death benefits pursuant to the Louisiana Workers’ Compensation Act. At the time of his death, the Arledges were receiving social security retirement benefits and a union pension. The employer raised the same defense that has been raised herein — that because Mr. and Mrs. Arledge were not receiving any earnings from Mr. Arledge’s employer at the time of his death, Mrs. Arledge was not entitled to death benefits. A divided panel of the first circuit agreed. In interpreting La.R.S. 23:1231, the majority stated:

Death benefits are designed to replace the earnings of an employee killed in a work-related accident. The amount of the benefit payment, as set out in La. R.S. 23:1232, is a statutorily mandated percentage of “wages.” Louisiana Revised Statute 23:1021(10) defines “wages” as “average weekly wage at the time of the accident” and provides a formula to determine the average weekly wage. Social security benefits do not appear in § 1021’s definition of “wages.” Once wages from employment (as opposed to benefits from retirement) are ascertained, then a percentage is paid to the survivors who were dependent on those earnings. See La.R.S. 23:1232.
_k' • • •
... Clearly, it does not appear that the Legislature intended to provide workers’ compensation death benefits to the survivors of retired employees based upon the retiree’s social security and pension benefits, which are passive income, but rather, intended to provide workers’ compensation death benefits to the survivors of those currently employed based upon the employee’s wages, which are active income.

Id. at 879-80.

The dissenting judge pointed out that nothing in La.R.S. 23:1231 requires that the employee be gainfully employed until the moment of death for the benefit to be due. “Rather, the statute established entitlement and references the calculation of the death benefit payment, which is based on the injured employee’s wages at the time of the accident.” Id. at 880.

We decline to follow the Arledge decision. As stated in Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993): “It is well established that the workers’ compensation act is remedial in nature. In order to effectuate the humane policies it reflects, the law is to be liberally construed in favor of the injured employee.” To limit death benefit recovery to only those cases in which an employee is actually killed in a work-related accident would be to ignore the clear language of La.R.S. 23:1031.1(A), which grants a dependent of an employee who dies from an occupational disease the same recovery rights “as if [the] employee received personal injury by accident arising out of and in the course of his employment.”

Additionally, La.R.S. 33:2581 clearly provides that a firefighter’s survivors “shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity.” (Emphasis added.) To apply Arledge | (jWould be to leave the widows of many employees without a remedy solely because of the date of the employees’ death, despite the clear language of the statute. In other words, it would require that the focus be on the fortuity of the timing of the progression of the disease and not its relation to the employment situation.

We also reject the argument of the City of Lake Charles that Mr. Johnson’s retirement precluded recovery of death benefits because he was no longer receiving “wages.” To accept this premise would be to deny the liberal construction in favor of the injured employee. The benefits awarded Mrs. Johnson were based on Mr. Johnson’s average weekly wage at the time of his retirement and not on his retirement pension or social security benefits. As pointed out by the dissent in Arledge, nothing in La.R.S. 23:1231 required that Mr. Johnson be gainfully employed at the moment of his death for the death benefit to be due Mrs. Johnson. Additionally, even under a rigid “wage” construction, technically, Mr. Johnson’s retirement benefits were directly based on his past wages.

Answer to Appeal Filed by Mrs. Johnson

In answering the appeal, Mrs. Johnson seeks reversal of the trial court’s denial of her request for attorney fees as well as an award for attorney fees for work performed on this appeal. We reject both requests. “[A]n employer should not be penalized for bringing a close legal issue to court.” Burruss v. Centro Mgmt., Inc., 00-1274, p. 2 (La.App. 3 Cir. 2/28/01), 780 So.2d 630, 631. In the instant case, a substantial legal issue existed, and the City of Lake Charles relied on existing jurisprudence. The City of Lake Charles was not arbitrary, capricious, or without probable cause in denying benefits to Mrs, Johnson. Accordingly, we affirm the 17workers’ compensation judge’s denial of attorney fees and concomitantly decline to award attorney fees for the work performed on appeal.

DISPOSITION

We affirm the judgment of the workers’ compensation judge in all respects and reject Rena Sonnier Johnson’s request for attorney fees on appeal. We assess all costs of this appeal to the City of Lake Charles to the extent allowed by law.

AFFIRMED.


author: I,PETERS, J.

text:
    Elizabeth A. LeMELLE v. WAL-MART STORES, INC.
    No. 2004-0527.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Thomas E. Townsley, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Elizabeth A. LeMelle.
    Frank A. Flynn, Allen and Gooch, Lafayette, LA, for Defendant/Appellant, Wal-Mart Stores, Inc.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   I,PETERS, J.

In this workers’ compensation case, Wal-Mart Stores, Inc. has appealed a judgment awarding its former employee, Elizabeth A. LeMelle, weekly compensation benefits, medical treatment, medical expenses, penalties, and attorney fees. Mrs. LeMelle has answered the appeal, seeking an increase in the trial attorney fee award and an attorney fee award for the work performed on appeal. For the following reasons, we affirm the judgment below in all respects and amend it to award an additional amount for attorney fees for work performed on appeal.

DISCUSSION OF THE RECORD

In April of 2001, Elizabeth LeMelle began working as a full-time employee for Wal-Mart Stores, Inc. (Wal-Mart) at its Lafayette, Louisiana store. On August 30, 2001, she sustained personal injuries while in the course and scope of her employment when she fell into the lower level of an oil change bay while attempting to service a customer’s vehicle. At the time of the accident, Wal-Mart was paying for Mrs. LeMelle’s services at the rate of $7.00 per hour. Wal-Mart paid benefits and medical expenses pursuant to the Louisiana Workers’ Compensation Act for various periods after the accident but ultimately terminated payment of all benefits. At trial, Wal-Mart contested only the extent and duration of Mrs. LeMelle’s injuries.

Between graduation from high school in 1991 and her August 30, 2001 accident, Mrs. LeMelle developed a significant medical history. For example, Mrs. LeMelle suffered anxiety attacks associated with a 1991 employment situation, which required treatment with Prozac. In December of 1992, she fell from a ladder and sustained personal injuries while working at a pizza establishment. She lost her first child in 1993, and, after the birth of her second child in 1995, underwent a complete hysterectomy and appendectomy. Two automobile accidents, one in 1994 and one 12in 1996, resulted in Mrs. LeMelle suffering from what she described as deep tissue strains and sore muscles in her back and neck. However, none of the medical conditions proved disabling for any significant length of time, and there exists no evidence that her prior medical difficulties affected her job performance at Wal-Mart.

When Mrs. LeMelle fell approximately ten feet into the lower oil change bay at Wal-Mart on August 30, 2001, she lost consciousness for a short period of time and sustained injuries to the entire right side of her body. An ambulance transported her to the Southwest Medical Clinic in Lafayette, Louisiana, where she complained to the treating physicians of pain in her right elbow, head, right leg, ankle, back, and ribs. The personnel at the clinic administered medical treatment and released her.

Mrs. LeMelle began long-term treatment for her injuries on September 6, 2001, when she first saw Dr. Harold Gran-ger, a Lafayette, Louisiana orthopedic surgeon. Based on his medical findings and the history provided by Mrs. LeMelle, Dr. Granger concluded that, as a result of the accident, she suffered from lumbar, cervical, and thoracic strains; tinnitus or ringing in the ears; loss of memory; a medial-meniscus tear in the right knee; and post-concussion syndrome. In Dr. Granger’s medical opinion, Mrs. LeMelle could not return to gainful employment at that time. Wal-Mart began paying temporary total disability benefits at the rate of $169.95 per week.

Very early in his treatment, Dr. Granger referred Mrs. LeMelle to Dr. Fabian Lugo, a Lafayette, Louisiana neurologist, for treatment of her post-concussion syndrome, tinnitus, and memory loss. However, he continued to treat Mrs. LeMelle’s other conditions, particularly her right knee condition. Dr. Granger last saw Mrs. LeMelle before the July 24, 2003 trial on the merits on March 21, 2003. Mrs. Le-Melle’s complaints remained consistent concerning the injuries to her head, neck, | sback, and knee during Dr. Granger’s continued treatment, although there were times of temporary improvement. On March 21, 2003, Dr. Granger opined that Mrs. LeMelle’s injuries sustained in the August 30, 2001 accident precluded her from returning to any gainful employment at that time.

Mrs. LeMelle experienced temporary improvement in late December of 2001, at which time Dr. Granger released her to try light-duty work. Although Wal-Mart accommodated her with a light-duty position, Mrs. LeMelle’s knee condition continued to deteriorate, and she ceased working on March 17, 2002. During her attempt at light duty, Wal-Mart paid no workers’ compensation benefits. However, immediately after March 17, 2002, Wal-Mart reinstated temporary total disability benefits. On August 27, 2002, Wal-Mart issued a $984.96 check to Mrs. LeMelle for this period of light-duty work. This check represented the supplemental earnings benefits to which she was entitled during that time.

In the meantime, Dr. Granger continued to treat Mrs. LeMelle’s knee injury and ultimately concluded that surgical intervention was necessary. On July 5, 2002, he performed a right knee arthroscopy to repair the meniscal tear and an approximate patellofemoral realignment to correct the mal-adjustment of the knee cap. The second procedure became necessary because the knee cap had begun to “pop out of place,” causing Mrs. LeMelle significantly more pain. Post-surgical treatment included physical therapy and the use of a patella stabilizer.

In late November of 2002, Dr. Granger again released Mrs. LeMelle to light-duty work, and she again returned to Wal-Mart, this time as a customer greeter. However, in doing so, he stated that her knee was still “not doing well” and that she was still in a “fair amount of pain.” Mrs. LeMelle worked only one week, from | ¿November 23, 2002, to November 30, 2002, being unable to perform even this limited duty. Mrs. LeMelle’s inability to perform even a greeter’s function was exacerbated by a lengthy daily commute, because she and her family had moved from Lafayette to Welch, Louisiana. Consequently, she was required to travel approximately sixty miles before even beginning work, and this daily trip aggravated her knee condition. Additionally, the work schedule prevented Mrs. LeMelle from participating in a physical therapy program recommended by Dr. Granger. When Wal-Mart was unable to provide employment closer to her home, the combination of these factors caused her to abandon the light-duty position. Wal-Mart ceased paying any benefits after November 30, 2002.

Sometime after her November 2002 attempt to return to Wal-Mart, Mrs. Le-Melle obtained a part-time position at a Welch, Louisiana Market Basket Grocery Store located immediately behind her home. She continued in that part-time employment until March of 2003, when continued difficulties with her knee caused her to cease working entirely.

When Mrs. LeMelle returned to Dr. Granger in December of 2002, he concluded that she still suffered from patellofemo-ral mal-alignment and that the meniscal tear repair may have failed. He recommended an additional MRI to further evaluate the knee’s stability. Wal-Mart refused to approve additional testing. Thereafter, without further testing, Dr. Granger could do little toward treating Mrs. LeMelle for her injuries.

Dr. Lugo began treating Mrs. LeMelle on September 27, 2001. He initially diagnosed Mrs. LeMelle as suffering from post-concussion syndrome and post-traumatic headaches. This diagnosis subsumed the tinnitus and memory loss | RcompIaints, and he related these conditions to the accident of August 31, 2001. In December of 2001, Dr. Lugo recommended that Mrs. LeMelle begin a regime of vestibular rehabilitation therapy, which Wal-Mart initially approved, and Mrs. Le-Melle began the therapy in late January of 2002. When Dr. Lugo recommended continuation of the therapy after the physical therapy center reported significant physical limitations at the end of the originally approved sessions, Wal-Mart refused to approve the continued treatment. Even before the physical therapy recommendation, Dr. Lugo had recommended that Mrs. LeMelle undergo neuropsychological testing because of her complaints of memory loss. This occurred on November 30, 2001, and Wal-Mart refused to approve payment for the testing.

Mrs. LeMelle’s post-concussion syndrome and post-traumatic headache condition did partially improve over time, and, on April 4, 2002, Dr. Lugo released Mrs. LeMelle from his care. However, he did so partially because of her continued improvement and partially because Wal-Mart refused to pay for his recommended treatment. He instructed her to return if her condition deteriorated. Mrs. Le-Melle’s condition did continue to deteriorate, but when she attempted to return to Dr. Lugo in October of 2002, Wal-Mart refused to approve payment of his services.

Wal-Mart’s only attempt to obtain an evaluation by its choice of physician occurred on December 2, 2002, when Mrs. LeMelle was seen by Dr. Mark Andrew Dodson, an Alexandria, Louisiana orthopedic surgeon. Dr. Dodson reported that when he attempted to examine or stress her knee, Mrs. LeMelle complained of “exquisite tenderness” to any palpitation about the knee and that, therefore, he was unable to complete his physical examination. Despite the limitations of his examination, Dr. Dodson concluded that Mrs. LeMelle suffered from causalgia, or | ^persistent pain associated with a neuro-logic problem. He suggested that Mrs. LeMelle might benefit from a parasympathetic nerve injection and a home physical therapy program, but he emphasized that if those treatments were not successful, he would not recommend surgery.

By correspondence dated May 15, 2003, in a final effort to obtain additional medical care, Mrs. LeMelle’s attorney sought Wal-Mart’s approval of a scheduled appointment with Dr. Dean Moore, a Lake Charles, Louisiana neurosurgeon. Wal-Mart refused to approve payment of Dr. Moore’s services, and the appointment was cancelled.

After trial, the workers’ compensation judge (WCJ) took the matter under advisement. On October 23, 2003, the WCJ rendered oral reasons for judgment (1) concluding that Mrs. LeMelle had carried her burden of proving her temporary total disability by clear and convincing evidence; (2) ordering that she be allowed certain medical testing previously rejected by Wal-Mart; (3) awarding weekly benefits for the periods of August 30, 2001, through December 17, 2001, March 17, 2002, through November 23, 2002, and from November 30, 2002, forward; (4) ordering that the weekly compensation rate be increased to $186.67; (5) awarding $8,000.00 in penalties for the denial of medical treatment and the improper payment of weekly benefits; (6) awarding $8,000.00 in attorney fees; and (7) ordering Wal-Mart to pay all costs of the proceedings. On November 18, 2003, the WCJ signed a judgment incorporating its reasons for judgment, and this appeal and answer followed.

OPINION

Wal-Mart’s Appeal

Disability Issue

|7In its first assignment of error, Wal-Mart asserts that the WCJ erred in concluding that Mrs. LeMelle carried her burden of proving a continuing temporary total disability related to her work accident. In its second assignment of error, Wal-Mart asserts that the WCJ erred in concluding that Mrs. LeMelle is entitled to continued medical treatment and temporary total disability benefits because her current physical condition is not work related. Specifically, Wal-Mart argues in both assignments of error that Mrs. Le-Melle’s continuing disability is related to a March 2003 incident that occurred at the Market Basket store. Wal-Mart points to this incident as well as Mrs. LeMelle’s prior medical history to suggest that she has been less than truthful in her testimony concerning her medical condition.

Mrs. LeMelle acknowledged that an incident occurred at the Market Basket store in March of 2003 and that it resulted in her being transported home in a wheelchair. However, she denied that the incident was a new and separate injury to her knee. She testified that in March of 2003, while standing next to a drain in the store, she placed her weight on her right foot and it simply slid to the left. When this occurred, she caught herself on a counter, but not before her right leg tensed up. She related this incident to Dr. Granger at the March 21, 2003 appointment. On that day, Dr. Granger’s physical examination revealed significant peri-patellar tenderness and extremely weak supportive muscles in the leg. However, Dr. Granger did not consider this incident to be a new accident, but attributed Mrs. LeMelle’s complaints to her original injury. He again emphasized the need for an MRI and further physical therapy, neither of which had been approved by Wal-Mart.

Wal-Mart further suggests that Mrs. LeMelle’s denial of her past medical history in her testimony makes her credibility on the Market Basket incident and other ^events so suspect that the WCJ erred in reaching its decision. We do not so construe Mrs. LeMelle’s testimony. She did not deny her past medical history, but testified that she simply did not remember many of the details. This would not necessarily be unusual for one complaining at the outset that she suffered memory loss from the accident.

Importantly, credibility determinations are for the trier of fact and, absent manifest error, will not be disturbed on appeal. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. In this matter, the WCJ listened to the testimony presented and reviewed the other evidence, including Mrs. LeMelle’s pre-acci-dent medical history. In doing so, the WCJ stated the following in the oral reasons for judgment:

The court then must rely on two things in reaching an opinion: the first is its judgment as to what the medical testimony and records, taken in totality, mean; and, second, and more importantly in this case, the credibility of live testimony.
For that reason, both sides were given wide latitude in letting their witnesses talk and expound at length in order for the court to have an opportunity to gauge and measure their demeanor, their forthrightness, and the consistency of the testimony.
Neither this court nor any other that I am aware of is much taken aback when the doctors from both sides have divergent views and opinions. One expects that. I was impressed, however, with the testimony of the treating physician who was unequivocal and surefooted in his opinion that the maladies afflicting the claimant can be clearly traced to the time when she fell through the open bay landing on her back and hitting her head. Inserting common sense and ordinary experience into the equation, it certainly seems feasible and possible that such an event could, not necessarily did, but certainly could, cause the medical problems alleged by the claimant. She complains of headaches, and pain in her tailbone, low back, elbow, ribcage, leg and ankle pain. The treating physician is positive that her fall did this damage. He expresses no doubt whatsoever. He strongly suggests that more tests be conducted to ensure a complete diagnosis and he urges that physical therapy is essential. He flatly rejects the opinion of the company’s choice of physician that an M.R.I. is unnecessary. The treating physician says that Ms. Lemelle is unemployable at this point and needs further treatment.
[SI listened to her carefully and at length and noted her responses to some very pointed cross examination. I find the claimant has carried her burden of proof clearly and convincingly....

In rendering these oral reasons for judgment, the WCJ clearly recognized its obligation as the trier of fact and made specific factual findings and credibility determinations. Based on these factual findings and credibility determinations, the WCJ rendered its judgment. Having reviewed the entire record, this court finds no manifest error in the WCJ’s factual findings. Therefore, we find no merit in Wal-Mart’s first two assignments of error.

Penalty and Attorney Fee Issue

In its final assignment of error, Wal-Mart asserts that the WCJ erred in awarding penalties and attorney fees. “Whether the refusal to pay benefits warrants the imposition of penalties and attorney’s fees is a factual question which will not be disturbed in the absence of manifest error.” Dozier v. Garan’s, Inc., 94-1863, p. 4 (La.App. 3 Cir. 4/5/95), 653 So.2d 137, 139.

The WCJ, in its oral reasons for judgment, stated the following concerning its award:

[I] am, therefore, ordering the claimant is entitled to an M.R.I. of her knee as recommended, neuropsyehiatric testing, the vestibular P.T., and an appointment with Dr. Dean Moore. I’m further awarding all weekly benefits due from August the 30th, 2001 to December 17, 2001; March 17, 2002 to November 23rd of 2002, and November 30, 2002 to the present be paid calculated based upon full-time status of a 40-hour week multiplied by her hourly wage which is $7, or an A.W.W. of $280 and a comp rate of $186.67. Additionally, the court assesses $8,000 in penalties, [$]2,000 for the denial of the P.T., neuropsychiatric testing, and the neurosurgeon appointment as well as [$]2,000 for the late and improper payment of weekly benefits along with $8,000 in attorney fees and cost of court, which include Dr. Granger’s expert testimony of $750 and a transcript fee of $148.

ImThus, the WCJ limited the awarded penalties and attorney fees to only four actions by Wal-Mart. In her answer to Wal-Mart’s appeal, Mrs. LeMelle did not seek additional penalties, and we are therefore limited in our review to Wal-Mart’s assertion that the WCJ erred in awarding penalties and attorney fees. We reject Wal-Mart’s assertion.

When Wal-Mart first rejected Dr. Lugo’s recommendation of neuropsychia-tric testing and the extension of vestibular physical therapy, only Dr. Lugo and Dr. Granger had treated Mrs. LeMelle for her injuries. The doctor made his recommendation concerning the neuropsychological testing within three months of the original injury, and the record contains no basis for Wal-Mart’s refusal to approve the testing. Concerning the vestibular rehabilitation, Dr. Lugo recommended its continuation after considering the report and recommendation of the physical therapist. In denying both requests, Wal-Mart relied totally on a physician advisor, through a utilization review process, who did not even examine Mrs. LeMelle.

As stated in Harrington v. Coastal Construction & Engineering, 96-681, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied, 97-0109 (La.3/7/97), 689 So.2d 1375, “the employer must rely on competent medical advice when the decision to deny the medical treatment is made.” The mere production of a different opinion of a doctor who never examined the claimant does not constitute competent medical advice sufficient to reasonably controvert the claim. Id.; see also Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. While a utilization review process has its place in the workers’ compensation process, this court has consistently held that a long-distance diagnosis by a physician advisor is not an acceptable basis for denial of treatment and benefits. See id. In the instant case, thej^long-distance diagnosis flies in the face of the undisputed findings of the treating physician at a time when Wal-Mart was paying temporary total disability benefits, making Wal-Mart’s actions even more egregious. We find no error in the WJC’s award of penalties and attorney fees for Wal-Mart’s failure to approve the neuropsychological testing and vestibular physical therapy.

Nor do we find error in the WCJ’s award of penalties for Wal-Mart’s failure to correctly and timely pay weekly benefits. Wal-Mart initially paid Mrs. LeMelle temporary total disability benefits from September 6, 2001, until she returned to work on December 17, 2001, at which time it suspended payments until March 17, 2002. It then paid Mrs. LeMelle temporary total disability benefits until she returned to light-duty work on November 23, 2002. On August 27, 2002, Wal-Mart issued Mrs. LeMelle a $984.96 cheek as payment of supplemental earnings benefits for the period from December 17, 2001, through March 16, 2002. After Mrs. Le-Melle ceased working on November 30, 2002, Wal-Mart never reinstated any type of indemnity benefit.

When an employee sustains an injury that produces temporary total disability, he is entitled to be compensated at the rate of “sixty-six and two-thirds percent of wages during the period of such disability.” La.R.S. 23:1221(l)(a). As stated in La.R.S. 23:1021(10), ‘[w]ages’ means average weekly wage at the time of the accident.” Additionally, “[i]f the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate [should be] multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater ...La.R.S. 23:1021(10)(a)(i) (emphasis added).

|12WaI-Mart does not dispute that Mrs. LeMelle was a full-time employee at the time of the accident. However, it calculated Mrs. LeMelle’s average weekly wage ($254.91) and the temporary total disability benefit it paid ($169.95) based on the actual hours worked for the four weeks preceding the accident, and not on a forty-hour work week as required by La.R.S. 23:1021(10)(a)(i). See also Shortt v. Wal-Mart Stores, Inc., 95-978 (La.App. 3 Cir. 1/31/96), 670 So.2d 369 (holding that although Wal-Mart’s employee was not employed to work forty hours a week, she was nevertheless classified as a full-time employee and was therefore entitled to the calculation of her average weekly wage based on a forty-hour work week). This occurred despite written demands by Mrs. LeMelle through her attorney. The WCJ properly calculated the weekly temporary total disability benefit ($186.67) utilizing a forty-hour work week and Mrs. LeMelle’s $7.00 per hour wage rate. Thus, Wal-Mart continuously underpaid Mrs. LeMelle temporary total disability benefits when it paid her benefits. Given the clear language of La.R.S. 23:1021(10)(a)(i) and the decision contrary to Wal-Mart in Shortt under similar facts, we find no error in the WCJ’s award of $2,000.00 in penalties for Wal-Mart’s miscalculation of benefits and for its failure to timely pay supplemental earnings benefits.

Further, Wal-Mart’s refusal to approve an examination by Dr. Moore, standing alone, might have been satisfactory because it occurred after Dr. Dodson issued his opinion. However, when viewed in the context of Wal-Mart’s total approach to this claim and the medical opinions of the treating physicians, it simply constitutes one more instance of arbitrary and capricious action on the part of Wal-Mart.

Despite the obvious seriousness of Mrs. LeMelle’s accident, Wal-Mart began soon after the accident with what could be described as a conscious attempt to avoid I,sits obligations to its employee. Other areas that the WCJ could have considered for penalties include Wal-Mart’s failure to authorize Dr. Granger’s request for continued physical therapy as well as the failure to properly pay mileage expenses. Given the record as a whole, we find no error in the award of penalties and attorney fees for Wal-Mart’s action in refusing to authorize Dr. Moore’s examination.

Mrs. LeMelle’s Appeal

Mrs. LeMelle first seeks an increase in the award of attorney fees by the WCJ. In McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694, the supreme court explained that the amount of the statutory attorney fees rests within the discretion of the WCJ, provided the amount is supported by the record. We find no abuse of discretion in the WCJ’s award and reject Mrs. LeMelle’s request in this regard.

In her answer, Mrs. LeMelle also seeks an award of additional attorney fees for work performed on appeal. While Mrs. LeMelle was not successful in obtaining relief from the action of the WCJ through her answer to the appeal, she was successful in defending the WCJ’s judgment. In such a case, she is entitled to an award of additional attorney fees on appeal. See Phillips, 869 So.2d 313. Therefore, we award her an additional $5,000.00 in attorney fees.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge in all respects and award additional attorney fees of $5,000.00 to Elizabeth A. LeMelle. We tax all costs of this appeal to Wal-Mart Stores, Inc.

AFFIRMED AS AMENDED.


author: _J_iMURRAY, J.

text:
    The Rev. Deninah WEBB-GOODWIN v. Kimberly Williamson BUTLER, Clerk of Criminal Court for the Parish of Orleans, Fox McKeithen, Secretary of State of Louisiana, in Their Official Capacities Only, and the Covan World Wide Moving Corp., et al.
    No. 2004-CA-1719.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 7, 2004.

      The Rev. Deninah Webb-Goodwin, New Orleans, In Proper Person (Plaintiff/Appellant).
    Deborah L. Wilson, New Orleans, Counsel for Defendant/Appellee (Kimberly Williamson Butler).
    Ty Larkins, Executive Counsel, Office of the Secretary of State, Baton Rouge, Counsel for Defendant/Appellee (Walter Fox McKeithen, Secretary of State).
    Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, Jr., Judge LEON A. CANNIZZARO, Jr., Judge ROLAND L. BELSOME.
   _J_iMURRAY, J.

Plaintiff, the Reverend Deninah Webb-Goodwin, appeals the trial court’s dismissal on procedural grounds of her petition contesting the validity of the results of the September 18, 2004, election for the Orleans Parish School Board. For the reasons that follow, we affirm.

Reverend Goodwin was one of six candidates on the ballot seeking election to the School Board from District 2. She failed in her bid to be elected, receiving 523 of 11,298 votes cast, or about five percent of the total. The instant action by Reverend Goodwin challenges the results of that election based upon an allegation of “lack of machine readiness” and other alleged irregularities. By judgment dated September 29, 2004, the district court dismissed the plaintiffs petition with prejudice, finding that she had failed to comply with the requirements of the Louisiana Election Code, specifically La. R.S. 18:1405(B) and 18:1406(C).

La. R.S. 18:1405(B) states, in pertinent part: “An action contesting any election involving election to office shall be instituted on or before the ninth day after the date of the election....” The record reflects that on September 23, plaintiff faxed her petition to the clerk of the district court. La. R.S. 13:850, which |2provides for the filing of documents by facsimile transmission, states, in pertinent part:

B. Within five days, exclusive of legal holidays, after the clerk of court has received the [facsimile] transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars. C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect.

The following facts are not in dispute. The record reflects that the plaintiffs facsimile transmission of her petition was received in the clerk’s office on Thursday, September 23. The plaintiff states that she appeared at the clerk of court’s office on September 24, submitted her original petition, and attempted to file the forms necessary to proceed in forma pauperis pursuant to La. C.C.P. article 5181, which allows an indigent party to proceed without paying the applicable filing fee. Because the forms were not complete at that time, the plaintiff returned on Monday, September 27 and submitted the completed informa pauperis forms. On Tuesday, September 28, the district court denied the plaintiff informa pauperis status, presumably after finding she did not meet the specific statutory criteria for indigence. Also on September 28, the trial court conducted a hearing on the plaintiffs petition at which the plaintiff appeared pro se and an attorney appeared on behalf of the State of Louisiana. The record indicates that, also on September 28, the plaintiff paid the $307.00 filing fee applicable to this case. On September 29, the trial court dismissed the plaintiffs petition.

On appeal, the plaintiff argues that her petition was wrongfully dismissed because she attempted, to the best of her ability, to comply with the procedural requirements of the law. The two defendants, the clerk of criminal court in [ 3Orleans Parish (who has the responsibility of conducting elections) and the State of Louisiana, argue that the trial court correctly dismissed the petition because it was not timely filed. The crux of their argument is that because La. R.S. 18:1405(B) sets forth a peremp-tive period, rather than a prescriptive period, the plaintiffs failure to complete the filing of her petition, including the payment of fees, by September 27, which was the ninth day after the election, extinguished her cause of action.

We do not agree with defendants’ argument in this respect. Under the facsimile filing statute, La. R.S. 13:850, if the plaintiff complies with all the requirements listed therein by the fifth day, exclusive of holidays, from the date the fax is received, the petition is considered to have been filed on the date the clerk’s office received the fax. The very purpose of this statute is to permit litigants to meet applicable time limits by facsimile filing on the pertinent date, as long as the other conditions of the statute are met. The defendants’ argument that the more specific Election Code provision, La. R.S. 18:1405, “trumps” the facsimile filing statute is misplaced. In our view, the two statutes relate to completely separate issues. The Election Code provision sets forth the time period within which a suit must be filed, whereas the facsimile filing statute describes what constitutes “filing” in a case where facsimile transmission is utilized. Therefore, the relevant question in this case is whether Reverend Goodwin complied with the terms of the facsimile filing statute; if she did, then her petition is considered as having been | ¿filed on September 23, which was clearly within the nine days allowed by La. R.S. 18:1405(B).

As stated previously, the record shows that after her in forma pawperis petition was denied, the plaintiff paid the $307.00 filing fee on September 28. According to La. R.S. 13:850, she had until September 30 (the fifth business day after the date of the fax) to pay the filing fee and also “a transmission fee of five dollars.” We are unable to determine from the record whether plaintiff in fact paid the five dollar transmission fee or when she paid it. However, assuming it was paid by September 30, we would find that the plaintiffs suit was filed timely.

Therefore, we turn to the second basis cited by the trial court as a ground for dismissing plaintiffs action, that the plaintiff failed to comply with La. R.S. 18:1406(C). That portion of the statute provides, in pertinent part: “The defendant shall be served with citation directing him to appear in court no later than 10:00 a.m. on the fourth day after suit was filed....”

Although counsel for the State of Louisiana appeared at the September 28 hearing, the record contains no evidence that service was made on either defendant. Moreover, the prayer of the petition contains no request for service. Neither Reverend Goodwin nor counsel for either of the two defendants has argued that service was attempted or perfected. The failure to properly serve the defendant has been held to be sufficient grounds for dismissal of a petition under La. R.S. 18:1406. Villermin v. Republican Executive Committee for Third Congressional District, 195 La. 1022, 197 So. 743 (1940). Furthermore, while a defendant may waive service by making a general appearance, in the instant case, only one of the defendants appeared. Therefore, we agree with the trial court that | sthe plaintiff failed to comply with the requirements of La. R.S. 18:1406(C). On that basis, the trial court correctly dismissed the action.

Accordingly, we affirm the trial court’s judgment dismissing the plaintiffs suit with prejudice.

AFFIRMED.

      . In Town of Church Point v. Acadia Parish Police Jury, 2003-890 (La.App. 3 Cir. 7/14/03), 849 So.2d 87, the court held that La. R.S. 18:1405(G) sets forth a peremptive period, or time limit, within which to file suit. Quoting an earlier Supreme Court decision, Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899 (1900) at 901, the court noted: "Statutes of prescription simply bar the remedy. Statutes of preemption destroy the cause of action itself.” 849 So.2d at 89.

      . See Brunet v. Evangeline Parish Board of Supervisors of Elections, 376 So.2d 633 (La. App. 3 Cir.1979).


author: JjBELSOME, J. |, CANNIZZARO, J., | JAMES E. KUHN, J. Ad Hoc,

text:
    Sandra Cabrina JENKINS v. Kimberly WILLIAMSON-BUTLER, Clerk of Court, Criminal District Court for the Parish of Orleans, and Chief Election Officer for the Parish of Orleans, and Fox McKeithen, Secretary of State and Chief Election Officer for the State of Louisiana
    No. 2004-CA-1726.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2004.

      Ronald L. Wilson, New Orleans, Counsel for PlaintiffAppellee.
    Deborah L. Wilson, New Orleans, Counsel for Defendant/Appellant, Kimberly Williamson Butler.
    Court composed of Judge LEON A. CANNIZZARO Jr., Judge ROLAND L. BELSOME, Judge Ad Hoc SUSAN M. CHEHARDY, Judge Ad Hoc ROBERT D. DOWNING, Judge Ad Hoc JAMES E. KUHN.
   JjBELSOME, J.

These are consolidated cases contesting results from the election held September 18, 2004. For the sake of clarity of our opinions rendered this date, we issue separate opinions in the consolidated cases of 2004-CA-1725 and 2004-CA-1726. Petitioner, Sandra Cabrina Jenkins, a candidate for the Orleans Parish Juvenile Court judgeship and petitioner, Sandra Wheeler Hester, a candidate for the Orleans Parish School Board District 3 seat, lost their respective races.

Ms. Jenkins failed to qualify for the runoff election, placing third •with only a margin of 276 votes separating second and third place. The results from the September 18, 2004 parish wide election for Judge, Section “C,” Orleans Parish Juvenile Court were as follows: David L. Bell, received 23,221 votes (30%); Yolanda King received 18,615 votes (24%); Sandra Ca-brina Jenkins received 18,339 votes (23%); Kim O’Dowd received 12,186 votes (16%); and Robin Shulman received 5,757 votes (7%).

Ms. Jenkins filed her suit in the Civil District Court for the Parish of Orleans seeking a new election based on the grounds that substantial irregularities, which plagued the September 18, 2004 election, affected 20% to 25% of the registered | ¿voters. Further, given the closeness of the second and third place candidates, those irregularities cast doubt on the outcome of the election.

The trial court ruled in favor of Ms. Jenkins and ordered that the restricted citywide election be held for Judge, Section “C,” Orleans Parish Juvenile Court on November 2, 2004 among candidates David L. Bell, Yolanda King, Sandra Cabrina Jenkins, Kim O’Dowd and Robin Shulman. Defendant, Kimberly Williamson Butler appealed.

First this court will address whether the trial court erred in finding the Clerk of Court a proper party defendant and dismissing her Exception of No Cause/No Right of Action. This court recognizes that the Secretary of State is a necessary party to the instant action. La. R.S. 18:1402. However, there is no prohibition for the plaintiff to bring an action against an ancillary defendant. Thus, this court affirms the trial court’s ruling that Kimberly Williamson Butler, in her capacity as the Clerk of Criminal Court for the Parish of Orleans, is a proper party defendant.

The second and final issue for review raised by the Appellani/Clerk of Court is whether the trial court exceeded its authority granted by La. R.S. 18:1432 in nullifying the election and ordering a restricted election. La. R.S. 18:1432(A) gives the court guidance as to when an election may be declared void. La. R.S. 18:1432(A) reads:

If the trial judge in an action contesting an election determines that: (1) it is impossible to determine the result of election, or (2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote, or (3) the number of unqualified voters who were allowed to vote by the election officials was sufficient to | ?,change the result of the election if they had not been allowed to vote, or (4) a combination of the factors referred to in (2) and (3) herein would have been sufficient to change the result had they not occurred, the judge may render a final judgment declaring the election void and ordering a new primary or general election for all the candidates, or, if the judge determines that the appropriate remedy is the calling of a restricted election, the judge may render a final judgment ordering a restricted election, specifying the date of the election, the appropriate candidates for the election, the office or other position for which the election shall be held, and indicating which voters will be eligible to vote.

The standard of review this court must apply to the trial court’s findings of fact is one of manifest error. Unless the trial court’s findings of fact are manifestly erroneous or clearly wrong, they must be accepted. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trial court had the opportunity to listen to the testimony of witnesses and review all exhibits presented.

In reviewing the testimony and exhibits presented at trial, Judge Magee found that a substantial number of irregularities were experienced during the September 18, 2004 election. Some of those irregularities included the late delivery and set up of approximately two hundred eighty-nine (289) voting machines. These voting machines represented nearly one-third (1/3) of the total machines used in the citywide election. The trial judge found that voting machines were not put into service until two (2), four (4) and in many instances eight (8) hours after the statutorily mandated starting hour of 6:00 a.m. The court further found that these irregularities were of such a serious nature as to deprive voters from to freely expressing their will. The trial court accepted into evidence exhibits demonstrating the effect of the irregularities presented at the ninety (90) precincts in question. For instance, one precinct submitted a list of fourteen (14) registered voters who were not allowed to vote because the machines did not arrive at the site |4until 11:23 a.m. Furthermore, fifty-seven (57) complaint forms were received by the Secretary of State’s office on election day. The testimony of the Secretary of State, Fox McKeithen summed it up best by stating that the election was the “biggest fiasco in New Orleans election history” and that he had “never been to a rodeo quite like this one.”

At the conclusion of the trial on the merits, the trial judge rendered an opinion reasoning that due to the substantial number and serious nature of the irregularities in the September 18, 2004 election it was impossible to determine the number of registered voters that were affected by the late start up or late arrival of voting machines, ultimately making it impossible to determine the result.

With the adoption of the current Election Code, effective January 1, 1978, La. R.S. 18:1432 no longer provides language requiring the challenger in an election contest to prove “but for” the alleged fraud or irregularities, the challenger would have prevailed. Adkins v. Huckabay, 99-3605 (La.2/25/00), 755 So.2d 206, 222 n. 21. A candidate filing a petition contesting an election must show that because of fraud or irregularities, the outcome of the election is impossible to determine. Savage v. Edwards, 98-1762 (La.App. 3 Cir. 11/23/98), 728 So.2d 428. Thus, it is the effect of the irregularity on determining the outcome, rather than the fact of the irregularity itself that must be considered. Id.

A trial judge is not limited to strictly numerical considerations in declaring an election void. Adkins, supra (Lem-mon, J., dissenting). Moreover, “[i]n determining whether to declare an election void under La. R.S. 18:1432(A), a judge can and should consider whether the proven frauds or irregularities are of such a serious nature so as to deprive the voters of the free expression of them will.” Id. Even prior to the change in the language of La. R.S. 18:1432, the |KSupreme Court stated that there was an alternative to the “but for” burden placed on a candidate, recognizing that when irregularities are of such a serious nature as to deprive the voters of the free expression of their will, declaring the entire election a nullity is the proper remedy. Adkins, supra quoting Garrison v. Connick, 291 So.2d 778 (La.1974), quoting Dowling v. Orleans Parish Democratic Comm., 235 La. 62, 102 So.2d 755 (1958). Clearly, that is the situation presented in the instant case. This court finds that the trial court’s determination that irregularities experienced in the September 18, 2004 citywide election rose to the level of showing that the electorate was deprived of the free exercise of their will, demanded nullification of the election.

The fate of our democracy rests on the electorates’ belief and faith that every vote counts and will be counted. Thomas Jefferson stated over 150 years ago that, “[it is] by their votes the people exercise their sovereignty”. Montesquieu, Spirit of the Laws. While this court recognizes calling a new election is a drastic remedy, given the gravity of the circumstances, a necessary one. Considering the trial court’s factual findings, we must affirm.

AFFIRMED.

CANNIZZARO, J., Concurs in Part and Dissents in Part.

KUHN, Judge Ad Hoc, dissenting.

|, CANNIZZARO, J.,

Concurring in Part and Dissenting in Part.

Although I concur in the majority’s finding that the irregularities in the election make it impossible to determine the result of the election, I dissent with respect to the remedy prescribed by the majority. Because certain precincts were not open for the hours mandated by law, the election should be continued, not nullified. I would require the Secretary of State to provide a special ballot in the November 2, 2004 election for the affected precincts. This ballot would include the five candidates for the position of Judge, Orleans Parish Juvenile Court, Section “C”. Furthermore, I would permit any registered voter, who was qualified to vote at the time of the September 18 election and who did not, in fact, vote in that election, to cast a ballot in the judgeship race. At the close of the polls on November 2, 2004, the votes cast for each candidate in the judgeship race on that date would be added to the votes cast for each candidate in the September 18 election to determine whether there is a winner in the judgeship race or whether a run-off must be held between the two candidates receiving the most votes.

| JAMES E. KUHN, J. Ad Hoc,

dissenting.

I respectfully dissent from the majority opinion as I do not believe the irregularities which arose in the September 18, 2004 election in Orleans Parish rise to the status or magnitude to warrant the vacating of a duly-conducted election, a proposition that the court should be loathe to sanction.

Initially I note that the majority opines the standard of review in this case is manifest error. While I certainly agree that the factual findings in an election suit, like those in any lawsuit, are subject to the manifest error standard of review, it would appear that the conclusions of the trial court should be reviewed under either a legal error standard or for an abuse of discretion.

It is well-settled, however, that the burden of proof in election contest suits requires that Sandra Cabrina Jenkins prove by a preponderance of the evidence that the irregularities affected the outcome of the election. See Kelly v. Village of Greenwood, 363 So.2d 887; Walsh v. Rogillio, 2000-1995 (La.App. 1st Cir.9/7/00), 768 So.2d 653.

In her reasons for judgment, the trial court found the following “extensive irregularities,”

\¡9 The notice of inspection was not served upon the candidates in accordance with the Election Code,
• Candidates were not properly noticed of the location of the inspection of the voting machines prior to the September 18th election,
• Candidates were not informed of the changed date of inspection,
• 289 voting machines were not powered-up by 6 a.m.,
• Many deputy custodians were not on site to open premises for delivery of machines,
• Most of those precincts affected did not get voting machines until after 10:30 a.m., that many were delivered after 12:30 p.m. and that several machines were delivered after 2:00 p.m. on election day,
• Voters were not able to cast their votes within the times prescribed by the Election Code,
• Voters did not vote as a result and
• The chain of custody was broken when the trucks carrying the voting machines were left unattended with the keys in the ignition.

The result of an election, in which electors have had a fair and free opportunity to express their will, and have so expressed it, will not be set aside merely because of failure of election of officials to perform some duty prescribed by law or to discharge them in exact manner designated. Jarrean v. David, 74 So.2d 218 (La.App. 1st Cir.1954). The irregularities must be of a serious nature. See Moreau v. Tonry, 339 So.2d 3 (La.1976). At a minimum, the party contesting an election must show that because of the irregularities the outcome of the election is impossible to determine; thus, it is the effect of the irregularity on determining the outcome, rather than the fact of an irregularity by itself that guides the court. See Nugent v. Phelps, 36,366 (La.App.2d Cir.4/23/02), 816 So.2d 349; La. R.S. 18:1432A.

| ¡¡Applying these standards to the list of irregularities found by the trial court, only the irregularities that “Voters were not able to cast their votes within the times prescribed by the Election Code,” and “Voters did not vote as a result” meet the requisite threshold to support plaintiffs burden of proof. And despite the lengthy trial and many documents examined, the record is devoid of any evidence demonstrating if or how the will of the voters was frustrated.

Although the trial court notes that 289 of the 834 machines were turned on after 6:00 A.M., there is no evidence that any of the machines were absent for the entire day. Rather, some machines were turned on late, many of which were in the “10-minute window.” Jenkins’ brief lists the machines that were turned on late and the times they were turned on. Of the almost 300 machines listed only 8 were turned on after 1 P.M. Thus, the trial court’s finding that “the irregularity of missing voting machines ... changed the election totals” is erroneous under any standard of review.

The trial court concluded that “the voters through out the city were constructively denied their right to vote.” But this conclusion is unsubstantiated by the record. Indeed, the Secretary of State offered unrefuted evidence that Orleans Parish had a higher voter turnout than that of the entire State of Louisiana. That a single voter did not return to vote after delivery of the machine for reasons not explained ' is not the disenfranchisement showing needed to justify the overturning of the election results. And while the trial court cites the complaints phoned into the Secretary of State’s office as evidence of disenfranchisement, of the 57 calls only five indicated an inability to vote due to the missing machines and none testified at the trial of this matter.

| irregularity in an election will not invalidate the election if no uncertainty is cast on the election. Garrison v. Connick, 291 So.2d 778 (La.1974). Given the fact that all five candidates for this office were equally affected, lateness of the machine delivery does not bring about the requisite uncertainty necessary to warrant nullification of the election.

A disruption of voting for short periods of time is insufficient to upset an election. Huckaby v. Hunter, 427 So.2d 1 (La.App. 2d Cir.), writ denied, 427 So.2d 1197 (La.1983). The disruption must be of such a serious nature that voters have been denied their free expression. Moreau, 339 So.2d at 4. Candidates need to produce sufficient evidence that voters were denied the right to vote or that the will of the electorate is undiscoverable to be successful in an election contest suit such as this. Hughes v. Lombard, 626 So.2d 582 (La.App. 4th Cir.), writ denied, 627 So.2d 640 (La.1993).

Policy concerns in a democracy are an appropriate. consideration in election contest suits. And the court must loathe upsetting elections. Here, the voter turnout exceeded the statewide average and all candidates were equally affected. Given the dearth of evidence, Jenkins simply failed to meet her burden of proof. We should resist the temptation of having two elections: one at the polls initially and another when irregularities — not proven to have effected the free expression of the electorate — have arisen. Accordingly, I dissent.

      . Intervenor, David L. Bell, filed a brief as an appellant but did not file a motion to appeal. Further, a motion to dismiss Mr. Bell’s appeal because it was not properly appealed was granted. Therefore, this opinion does not address any assignments of error set forth in intervenor’s brief.

      . The Secretary of State, a statutorily mandated defendant, did not appeal the trial court’s judgment in Jenkins v. Kimberly Williamson Butler, et al., Civil District Court Case No. 2004-173781.