author: LCLAIBORNE, J. hMcDONALD, J.

text:
    William R. ROBINSON and Michelle L. Robinson, Individually and on Behalf of Their Minor Children, Leanna Robinson, David Robinson and Lynn Robinson v. NORTH AMERICAN SALT COMPANY.
    No. 2002 CA 1869.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Rehearing Denied Aug. 13, 2003.

      Julius W. Grubbs, Jr., New Iberia, Counsel for Plaintiffs-Appellees.
    Mark L. Riley, Lafayette, Counsel for Defendant-Appellant North American Salt Company.
    Gary J. delaHoussaye, Lafayette, Counsel for Defendant-Appellee Superior Service Company, Inc.
    Melvin A. Eiden, Lafayette, Counsel for Intervenor-Appellee Business Insurance Company.
    Denis Paul Juge, Metairie, Counsel for Amicus Curiae Louisiana Association of Business and Industry.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   LCLAIBORNE, J.

This is an appeal by the defendant, North American Salt Company (NAS), from a trial court judgment in favor of the plaintiffs, William and Michelle Robinson, individually and on behalf of their minor children, Leanna, David, and Lynn Robinson, in the total amount of $1,377,509.20, with legal interest from the date of judicial demand until paid, plus all court costs, including expert fees in the amount of $5,447.29.

FACTUAL AND PROCEDURAL BACKGROUND

NAS is the owner and operator of a salt mine located on Cote Blanche Isle in St. Mary Parish, Louisiana. In October of 1997, NAS entered into a contract with Superior Service Company, Inc. (Superior) whereby Superior would provide personnel to perform maintenance work on the surface conveyor system NAS uses to bring salt out of the mine to barges for transportation. As a part of the contract, it was agreed that the employees of Superior who were performing the maintenance work would be the statutory employees of NAS. Plaintiff William Robinson was one of the Superior employees assigned to work on the project at the salt mine.

NAS’s conveyor system consists of a conveyor belt about 548 feet long, supported by a bridge-like structure, which runs from the mine to the waiting barges. The conveyor belt is located outdoors, and in some places it is close to the ground, while in others it is elevated and quite far from the ground. The maintenance project involved replacing the rollers on the conveyor belt, which required that the Superior employees fabricate clips for the rollers, clean rust from the frame of the conveyor in the areas where the clips would be installed, cut holes for the clips, install the clips, and then install the rollers on the clips. Norris Hebert was NAS’s project engineer in charge of the project, and Robert Durocher was Superior’s foreman who would supervise the employees at the job site. In | ¡November of 1997, prior to the commencement of any work on the conveyor system, Mr. Hebert and Mr. Durocher met to discuss the details of the job. Although the conveyor belt would have to be shut down in order to perform the installation of the rollers, Mr. Hebert told Mr. Durocher that he did not want to shut the conveyor belt down and halt production at the mine while the Superior employees performed the rest of the work, i.e., cleaning the rust from the frame of the conveyor, cutting holes for the clips, and installing the clips. '

On November 10, 1997, Mr. Durocher installed one set of clips and a roller. He performed this work on a section of the conveyor system that was not elevated, and therefore, he was able to do it while standing on the ground. Although the belt was shut down while he installed the roller, he performed the rest of the work while the belt was running. At that time, Mr. Durocher told Mr. Hebert that he believed the work could be performed safely while the conveyor belt was running.

On December 15, 1997, having finished fabricating the clips for the rollers, the Superior employees began the job of cleaning the conveyor structure and installing the clips. They did this work for part of the day and also did other work that did not require them to work in direct contact with the conveyor system. They resumed their work the next day. The Superior employees were required to use a man lift in order to work on the elevated portions of the conveyor system. On December 16, 1997, Mr. Robinson was working from the bucket of the man lift, using a chipping hammer to chip rust away from the frame of the conveyor. He was working in a small space very close to the moving conveyor belt and also very close to a “pinch-point,” meaning a point near one of the rollers in which objects could be caught. After several hours of working on the conveyor belt frame, Mr. Robinson’s chipping hammer struck the moving belt, causing the hammer and his entire arm to be pulled into the space between the belt and nearby roller, resulting in severe injuries to his arm, shoulder, and back.

| ¿Mr. Robinson and his wife filed suit against both NAS and Superior, alleging claims of negligence and intentional tort. Business Insurance Company (BICO), Superior’s workers’ compensation insurer, intervened in the lawsuit seeking reimbursement of workers’ compensation benefits and medical expenses it had paid to Mr. Robinson. After determining that NAS was in fact the statutory employer of Mr. Robinson, his negligence claims were dismissed, leaving the lawsuit as a pure intentional tort claim against Mr. Robinson’s direct employer, Superior, and his statutory employer, NAS.

Both defendants filed motions for summary judgment, which were denied. Several months later they reurged their motions, and the trial court granted Superior’s motion and dismissed Mr. Robinson’s claims against it. The trial court denied NAS’s motion for summary judgment with respect to Mr. Robinson’s claims, but granted it with respect to BICO’s claim in intervention against NAS for reimbursement of workers’ compensation benefits. However, the intervention by BICO as against Mr. Robinson was not dismissed, and the trial court ruled that Mr. Robinson would be allowed to present all evidence as to medical expenses and lost wages and that NAS would receive no credit for the workers’ compensation benefits and medical expenses paid by BICO.

Ti’ial on the merits was held beginning-on December 17, 2001. At the close of the plaintiffs’ case, NAS made a motion for directed verdict, which was denied by the judge. On December 20, 2001, the jury returned a verdict in favor of the plaintiffs. The jury awarded a total judgment of $1,010,000.00, broken down into the following damage awards:

William Robinson
0 1. Past Medical Expenses
$300,000.00 2. Future Medical Expenses
$100,000.00 3. Past Lost Wages
$400,000.00 | 54. Future Lost Wages & Earning Capacity
0 5. Permanent Disability & Impairment
$ 20,000.00 6. Past Physical & Mental Pain & Suffering
$100,000.00 7. Future Physical & Mental Pain & Suffering
$ 50,000.00 8. Loss of Enjoyment of Life
Michelle Robinson
1. Loss of Consortium $ 10,000.00
Leanna Robinson, Minor Child
1. Loss of Consortium $ 10,000.00
David Robinson, Minor Child
1. Loss of Consortium $ 10,000.00
Lynn Robinson, Minor Child
1. Loss of Consortium $ 10,000.00

At some point during the trial, plaintiffs’ counsel notified the trial court that all the parties had worked out a settlement with BICO, which was the reason BICO was not present to litigate at the trial. After the jury verdict was rendered, the judge signed an order dismissing BICO’s claims from the lawsuit. A judgment was then signed in accordance with the jury verdict, and both Mr. Robinson and NAS filed motions for judgment notwithstanding the verdict. The trial court denied NAS’s motion and partially granted Mr. Robinson’s motion by increasing parts of the damage award. The jury had not awarded anything for Mr. Robinson’s past medical expenses, and the trial court granted the JNOV with respect to that award and awarded Mr. Robinson $107,509.28, which is the amount of past medical expenses stipulated by the parties at trial. The court increased the award for past physical and mental pain and suffering from $20,000.00 to $135,000.00, and also awarded $125,000.00 for permanent disability and impairment, for which the jury had awarded nothing. The court also increased Michelle Robinson’s loss |r,of consortium award from $10,000.00 to $30,000.00. The JNOV increased the total judgment from $1,010,000.00 to $1,377,509.20, and NAS now appeals the judgment rendered in accordance with the jury verdict and the various rulings of the trial court.

LAW AND ANALYSIS

Intentional Act

NAS’s main argument is that the facts of this case do not rise to the level of an intentional act for purposes of the exception to the exclusive remedy provision of workers’ compensation found in La. R.S. 23:1032(B), which provides that “[n]othing in this Chapter shall affect the liability of the employer ... civil or criminal, resulting from an intentional act.” The Louisiana Supreme Court has held that the meaning of “intent” in this context is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208, 211.

“Substantially certain to follow” requires more than a reasonable probability that an injury will occur, and “certain” has been defined to mean “inevitable” or “incapable of failing.” Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation. Reeves, 731 So.2d at 212-13.

The supreme court has always narrowly construed the intentional act exception and has held that violation of a statute is not per se such an intentional act as will result in an employer’s tort liability. Likewise, the courts of appeal have narrowly construed the intentional act exception and have almost universally held 17that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment. Reeves, 731 So.2d at 211.

In Reeves, the plaintiff was injured while manually moving a sandblasting pot in the course and scope of his employment as a general laborer. OSHA required that a sticker be placed on the sandblasting pot which read “DO NOT MOVE MANUALLY,” and on previous job sites, the pot had been moved by a forklift. However, at this particular job site, the plaintiffs supervisor had requested a forklift several times, but the employer had never provided one. The supervisor testified that he feared someone would eventually get hurt moving the pot manually, and for that reason, he sometimes moved the pot manually himself. Other employees had moved the pot manually on numerous occasions without being injured, and the plaintiff himself had done so several times without complaint and without ever having any trouble. On the day of the accident, the supervisor directed the plaintiff to move the sandblasting pot about 40-50 feet and then, after the plaintiff had moved it about halfway with no trouble, directed another employee to help him. The supervisor testified that he felt the two employees could move the pot. safely. However, as they attempted to do so, it fell over on the plaintiff and injured him. Reeves, 731 So.2d at 209.

The plaintiff filed suit against his employer, alleging that his injuries were caused by his employer’s intentional acts and, therefore, fell outside the realm of workers’ compensation. After a jury trial, the jury found that the employer’s actions were intentional and awarded him damages for pain and suffering, lost wages, and past and future medical expenses. The Third Circuit affirmed, finding the record reflected the employer knew that the sandblasting pot could not be moved safely without a tow motor, knew that moving it manually violated OSHA | Ssafety regulations, and yet failed to provide the appropriate equipment. Reeves, 731 So.2d at 209.

• The supreme court reversed, finding the jury’s conclusion that the employer’s conduct constituted an intentional act was not reasonable in light of the record reviewed in its entirety, and there was no evidence presented that the accident was “substantially certain” to occur. Accordingly, the court found the jury had committed manifest error in determining the employer’s conduct rose to the level of an intentional act for purposes of the exception to the exclusive remedy of workers’ compensation, and the court of appeal had erred in affirming the jury’s decision. Reeves, 731 So.2d at 213. While the facts in the instant case are similar in some respects to those of Reeves, we find it distinguishable and, therefore, affirm the judgment in favor of the plaintiffs.

Although NAS asserts that its conduct does not rise to the level of an intentional act as a matter of law and that the jury committed legal error, we must, as did the supreme court in Reeves, apply the manifest error standard of review. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly 19wrong standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

The plaintiffs’ expert, Stephen Killings-worth, who was accepted by the court as an expert in the field of mechanical engineering, testified that it was a violation of NAS’s own safety policy and procedures for Mr. Robinson to be working so closely to the conveyor belt without it being “locked out and tagged out,” meaning shut down, locked, and tagged with the initials of the worker who shut it down. According to Mr. Killingsworth, due to the type of work being performed on the conveyor system by the Superior employees, it was a violation of the safety policy for Norris Hebert to ask them to perform the work while the belt was running. However, as noted by the supreme court in Reeves, violations of safety standards or even OSHA regulations alone do not make an employer liable under the intentional act exception. Reeves, 731 So.2d at 211-12. More is required in order to establish that an accident is substantially certain to occur. The supreme court found that such additional evidence was lacking in Reeves, but in the instant case, there was sufficient additional evidence presented from which the jury could reasonably conclude that the employer knew the accident was substantially certain to occur.

In Reeves, the supreme court focused on the fact that the plaintiff, as well as other workers, had moved the sandblasting pot manually on several prior occasions without anyone being injured. This, along with the fact that the plaintiff had already moved the pot halfway by himself with no trouble and the fact that the supervisor believed the plaintiff could do it without injury, made it unreasonable for the jury to conclude that the accident was substantially certain to occur. Reeves, 731 So.2d at 213. NAS argues that this case must be decided the same as Reeves, because Robert Durocher had installed the first set of clips and a roller for the conveyor belt and determined the work (not including the roller installation) |incould be performed safely while the belt was running, and the Superior employees, consisting of only Mr. Robinson and one other worker, Ricky Dotson, had been working on the conveyor system for about a day and a half before the injury occurred. NAS asserts that, because similar work had occurred before without injury, the injury was not substantially certain to occur.

However, when Mr. Durocher installed the first set of clips and a roller, he performed the work on a section of the conveyor system that was not elevated, and he was able to do it while standing with his feet firmly on the ground. Plus, during the day and a half immediately preceding Mr. Robinson’s accident, the Superior employees were not exclusively chipping rust from the conveyor frame and installing clips, but were also doing other work that did not require them to work in such close proximity to the moving belt. And when they were working on the conveyor system, at least part of that work was done on a section of the frame that was close enough to the ground that they could stand on the ground while performing the work. At the time of his accident, Mr. Robinson was also working near a “pinch-point,” which is a particularly dangerous area of the conveyor system, because it is near a roller and can cause the exact type of accident that happened to Mr. Robinson.

These are important distinctions, especially when considering the testimony of Stephen Killingsworth, who emphasized that it was a variety of factors which all contributed to making this accident inevitable. During his testimony at trial, Mr. Killingsworth stated the following:

Now, I understood that Mr. Durocher — I’m going to vary a little bit — did one of these — I call it a test clip. He did it while he was standing on the ground. One of the things that makes this accident an absolute that we’re going to have an accident happen is that, although Mr. Black or Mr. Durocher was on the ground, he’s on a stable platform; he’s on the earth. Mr. Robinson was not. He was in — and it’s a stable platform in this sense is, it’s not going to drop; but it does — because of the long extension that we’ve got out here seen in this photograph, it will bounce. You will have movement of that basket Injust from moving around in the basket your own weight, okay? And it doesn’t make it an unstable. It says that if you’re working close in work, you’ve got to be very careful because you can have movement as you’re working on this. If I’m chipping with a hammer, I’m moving; I’m putting body movement in, and I’m going to get a bounce on this — in this basket, which means that when — in different positions as I’m chipping, I may be literally bouncing up and down, moving. And it’s a slight movement; it’s not like this. But I’m going to be moving up and down as I’m chipping which means, if I’m trying to keep away from a moving belt, I may be moving into that belt not because I want to but simply because of the deflection we’re going to have in the basket.
So that’s the first thing we’ve got is that we’ve got Mr. Robinson in a basket, although stable, that will move.
The second thing we’ve got is that it is a very narrow area.
* * *
But what you’re doing now is, Mr. Robinson is now in this basket. We’ve got a belt that’s moving. And he’s now going to be asked to take and place his hand up into this area while the belt is moving, okay, as he described yesterday, and to chip and to remove the rust. Well, that says that I’ve got a fairly narrow area to be able to get my hands up in there.
Now, I examined this, and we’re looking at roughly about a twelve — eight to twelve inch gap, total gap. That’s from the edge of the belt to being able where he’s going to chip. And if you look at the hammer, the hammer’s going to take — -just the point to point on the hammer is going to take up a significant part of that.
So now he’s going to be asked to move his hand up above the belt. If he’d been chipping below the belt, it’s a little bit better situation. You’re still going to have an accident, but we’re increasing the probability and we’re increasing it and moving it toward that certainty because of the fact that he is not close to the belt; be’s above the belt, okay, and trying to keep himself away from the belt.
The third thing we’ve got that aggravates the situation while he’s doing his chipping is that this belt is put together with literally a series of metal clips. You see, in other words, it’s not one continuous belt that we slip on like a rubber band. There is a connection where the two portions of the belt are connected together. He was working near the roller. And keep in mind how this is running. It’s running down to the — it’s running down here to the barges and then coming back. So he’s going to be coming right across the roller — there was rollers that he got — he’s getting caught on. We’ve got rollers in the vicinity of him. And when that metal piece comes over — and I’ve got video to show it — when that metal piece is running over — and this is assuming that it’s in good condition, as I saw it during my inspection. It was described as being in a disrepair, somewhat of a disrepair at the time he’s doing the work on it. But when you see this come over, you will see that the belt will bounce. The belt normally runs pretty true; you don’t have much movement up and down. But when it hits that metal— when that metal clip hits a roller, you’ll see that belt moving.
So now I’ve got a moving man lift, a moving belt traversing, I’ve got a belt moving up and down, and I’m trying to chip up above |12it. That’s an accident that is going to happen; it’s just a matter of time.

This testimony by Mr. Killingsworth, which was obviously accepted by the jurors, helped them reach the conclusion that these circumstances created more than a reasonable probability that an injury would occur, and that an injury was “inevitable” or “incapable of failing,” as required by the definition of “substantial certainty,” on which the jurors were properly instructed by the trial court. Unlike in Reeves, the event had not occurred before without injury, because Mr. Robinson was placed into a situation surrounded by dangerous conditions which had not previously existed.

There was also evidence presented that NAS, through its project engineer, Norris Hebert, was aware of the circumstances under which Mr. Robinson was working. Mr. Hebert was in charge of the project and admitted that he had examined the conveyor belt and had discussed with Mr. Durocher how the work would be performed prior to the commencement of the project. Mr. Hebert testified he did not know that a chipping hammer would be used, and that he would not have used one for the purpose of removing rust. He did not say what tool he would have used. Although he denied ever actually seeing Mr. Robinson in the bucket of the man lift using the chipping hammer to chip rust from the conveyor frame, he admitted that he knew the man lift would have to be used for the project and that is the reason NAS supplied the man lift to the Superior employees. Furthermore, Mr. Durocher and Ricky Dotson testified that Norris Hebert made rounds and checked on them on a regular basis to see how the project was progressing and to observe their work. Obviously, the jury discredited the testimony of Norris Hebert, in whole or in part, and instead believed that he, as the project engineer, had knowledge of how the work was going to be performed and that he was aware, through his own observation on his rounds, of the circumstances | ^surrounding Mr. Robinson’s accident. Where there is conflict in the testimony, we cannot disturb the reasonable evaluations of credibility and reasonable inferences of fact made by the jury.

Another fact that makes this case stand apart from cases such as Reeves, where none of the employees ever eomplainéd about moving the sandblasting pot, is that both Mr. Robinson and Mr. Dotson testified they were very much concerned for their safety and expressed those concerns on numerous occasions to Mr. Durocher, who passed those concerns on to Norris Hebert. Mr. Dotson testified he overheard Mr. Durocher ask Mr. Hebert if they could lock out and tag out the belt in order to clean it and install the clips, and Mr. Hebert refused. Mr. Robinson testified he also overheard that conversation, and although he did not directly hear Mr. Hebert’s response, he could tell by Mr. Duroeher’s reaction that Mr. Hebert had refused to shut down the belt.

Mr. Durocher, on the other hand, denied this and testified that Mr. Robinson and Mr. Dotson did not express any concerns about safety to him and that he did not go to Norris Hebert and ask him to shut down the belt. However, Mr. Durocher did testify he had formed his initial opinion that the work could be performed safely after he had observed the conveyor belt while standing on the ground, and when asked if his opinion had changed after they actually began to do the work, he answered, “somewhat, yes.” Since there is a conflict in the testimony, this becomes an issue of credibility, and we will not disturb the jury’s determinations regarding the credibility of the witnesses. We can only assume the jury credited the testimony of Mr. Robinson and Mr. Dotson over that of Mr. Durocher and Mr. Hebert and believed that Mr. Robinson and Mr. Dotson were truly concerned for their safety while working in close proximity to the moving conveyor belt, that they expressed those concerns to Mr. Durocher, that in response he asked Mr. Hebert to shut down the belt, and that Mr. Hebert refused to do so.

| uFurthermore, it is undisputed that the Superior employees did not receive the safety training they were supposed to receive at the salt mine until after Mr. Robinson’s accident. Part of the required safety training would have included explaining to them that they had the right to refuse to do any work that they felt uncomfortable doing or that they felt was unsafe. Both Mr. Robinson and Mr. Dotson testified they were concerned about their safety and felt uncomfortable performing the work so close to the moving conveyor belt. However, they had not been informed that they had the right to refuse to do the work.

Based on the credibility determinations made by the jury, which must be afforded great deference, and after reviewing the record in its entirety, we conclude there was a reasonable factual basis for the jury’s finding that NAS knew this accident was substantially certain to occur, and the jury did not commit manifest error in finding NAS liable for an intentional act.

Credit for Workers’ Compensation Bene-ñts

NAS argues that the trial court committed legal error in refusing to allow it, as Mr. Robinson’s statutory employer, a credit for the workers’ compensation benefits paid by BICO, the direct employer’s insurer. Prior to the jury trial, the trial court ruled that Mr. Robinson would be allowed to present all evidence as to his medical expenses and lost wages and that NAS would receive no credit for the workers’ compensation benefits and medical expenses paid by BICO, as BICO was the workers’ compensation insurer of Superior and not of NAS. At the same time, the trial court dismissed BICO’s claim in intervention against NAS for reimbursement of workers’ compensation benefits, but allowed BICO’s intervention against the plaintiffs to remain. At some point before trial, BICO settled with all parties and was dismissed from the lawsuit.

During the trial, the parties stipulated that Mr. Robinson had incurred past medical expenses of $107,509.28 and that medical benefits of $103,918.28 and indemnity benefits of $69,637.56, were paid through workers’ compensation. The plaintiffs’ expert economist, Dr. Roy Womack, testified that Mr. Robinson’s past lost wages, based on his income tax returns and the rate of inflation, were approximately $107,569.00.

When the jury returned its verdict, it awarded nothing for Mr. Robinson’s past medical expenses and $100,000.00 for his past lost wages. However, on the plaintiffs’ motion for JNOV, the trial court awarded past medical expenses of $107,509.28, stating it considered NAS’s argument that it should be allowed a credit for workers’ compensation benefits to be res judicata, because it had already ruled in pretrial motions that BICO had no claim against NAS for workers’ compensation benefits and that NAS was not entitled to a credit for workers’ compensation benefits paid by BICO.

NAS argues that this was legal error, and we agree. An employee may not be compensated doubly by workers’ compensation benefits and tort damages for the same elements of damages. Double recovery would be in the nature of exemplary or punitive damages, which are not allowable under Louisiana law unless expressly provided by statute. Accordingly, an employer who pays workers’ compensation benefits and who is also held liable in tort is entitled to a credit for those items, including past lost wages and medical expenses, that are the same under both obligations in order to avoid double recovery. Gagnard v. Baldridge, 612 So.2d 732, 736 (La.1993).

Although NAS is not the one who actually paid the workers’ compensation benefits to the employee in this case, that does not change the fact that Mr. Robinson cannot be compensated twice for the same elements of damages. Accordingly, we must amend the judgment to reflect a reduction for the medical ^expenses and indemnity benefits which Mr. Robinson was already paid. It was stipulated at trial that Mr. Robinson had incurred past medical expenses of $107,509.28 and that workers’ compensation had paid $103,918.28, which leaves $3,591.00 remaining to be paid. The award of past medical expenses will be reduced from $107,509.28 to $3,591.00. It was also stipulated that workers’ compensation had paid $69,637.56 in indemnity benefits. The jury award of $100,000.00 in past lost wages will be reduced to $30,362.44.

General Damages

NAS asserts the trial court erred when it partially granted the plaintiffs’ motion for JNOV to increase Mr. Robinson’s award for past physical and mental pain and suffering from $20,000.00 to $135,000.00 and to increase Michelle Robinson’s award for loss of consortium from $10,000.00 to $30,000.00.

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by the reviewing court using the same criteria used by the trial court to decide whether to grant the motion. In other words, considering all the evidence in the light most favorable to the party opposing the motion for JNOV, do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If that question can be answered in the affirmative, then the trial court was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion, and the jury verdict should be reinstated. If the appellate court determines that the trial court correctly applied the standard of review as to the jury verdict, then the court reviews the JNOV using the manifest error standard of review. Yohn v. Brandon, 01-1896 (La.App. 1st Cir.9/27/02), 835 So.2d 580, 585, writ denied, 02-2592 (La.12/13/02), 831 So.2d 989.

After reviewing the record, we find the trial court was correct in granting the motion for JNOV, because the awards of $20,000.00 for Mr. Robinson’s past physical and mental pain and suffering and $10,000.00 for Michelle Robinson’s loss of consortium, were abusively low. When this accident occurred, Mr. Robinson’s wrist, arm, and shoulder were pulled in between the roller and the conveyor belt and squeezed into a very small area, breaking his wrist, humerus, and scapula and causing massive lacerations and burns across his back and arm. He was raised up into the conveyor to such an extent that his feet were no longer touching anything, and he was dangling. The belt and roller had to be cut in order to remove him. He was immediately taken to the emergency room, where three surgeries were performed to address his broken bones and open wounds. Mr. Robinson was in a great deal of pain and underwent physical therapy for a period of six months, at which time his treating physician determined that he had eighty percent extremity movement, all bones were healed, and he was not taking any medication.

Since that time, Mr. Robinson has moved to Oklahoma, where he -has been treated by a chiropractor and several other doctors for continual pain in his shoulder, arm, and back. He has been diagnosed with loss of mobility in the arm, and he has been unable to return to work due to his pain. He has also seen a psychiatrist, who diagnosed him with chronic post-traumatic stress disorder, major depression, and anxiety disorder. Considering the severity of Mr. Robinson’s physical injuries and the pain and suffering they have caused him, the psychological impact of the injuries, and the changes to his lifestyle that the injuries have caused him, the trial court was correct in increasing Mr. Robinson’s pain and suffering award.

Mr. Robinson’s injury has also had a significant impact upon his wife, because she had never worked outside of the home before, but now has been forced h «to start working in order to support the family. Michelle Robinson no longer gets any help from her husband with chores around the house because of his physical injuries, and she has also had to deal with the changes in their relationship brought on by his constant pain, loss of use of his arm, memory lapses, depression, and episodes of anger during which he screams at family members. The stress from dealing with the changes in her relationship and from becoming her husband’s primary caretaker caused Michelle Robinson to have what her doctor called a “major depressive episode,” which required treatment from a psychiatrist. Taking all of this into account, the trial court was correct in granting the motion for JNOV with respect to Michelle Robinson’s loss of consortium claim.

Having determined that the trial court correctly applied the standard of review as to the jury verdict and correctly granted the JNOV, we must now review the damages it awarded under the appropriate standard of review. Once a trial court has granted a JNOV on the issue of damages and has conducted its own independent assessment of the damages as trier of fact, that decision becomes the judgment of the trial court and is reviewed on appeal for an abuse of discretion. Adams v. Parish of East Baton Rouge, 00-0424, 00-0425, 00-0426, 00-0427 (La.App. 1st Cir.11/14/01), 804 So.2d 679, 699-700, writ denied, 02-0448 (La.4/19/02), 813 So.2d 1090. In reviewing general damage awards, an appellate court must accord much deference to the trial court. The discretion vested in the trial court is great, and even vast, and an appellate court should only disturb an award of general damages if the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of that discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of 11fldiscretion by the trial court. Andrus v. State Farm Mutual Automobile Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206, 1210. When reviewed under the foregoing standards, the award of $135,000.00 to Mr. Robinson for past mental and physical pain and suffering and the award of $30,000.00 to Michelle Robinson for loss of consortium do not constitute an abuse of the trial court’s discretion.

CONCLUSION

For the foregoing reasons, we amend the judgment of the trial court by reducing the award of past medical expenses from $107,509.28 to $3,591.00, and by reducing the award of past lost wages from $100,000.00 to $30,362.44. In all other respects, we affirm the judgment of the trial court. Costs of this appeal are to be shared equally between appellant and ap-pellees.

AMENDED, AND AS AMENDED, AFFIRMED.

PARRO, J., concurs.

McDONALD, J., dissents and assigns reasons.

hMcDONALD, J.

dissenting.

I respectfully dissent and would reverse the judgment of the trial court. The facts in this case are not distinguishable from those in Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208, and thus do not rise to the level of an intentional act. Reeves requires a finding that this result is substantially certain to follow. I agree with the majority that this requires something more than a reasonable probability and necessitates that the outcome be inevitable. However, like Reeves, there is no evidence that this accident was substantially certain to occur. The issue before the court is not what Irving Thomas, Mitchell Gaspard, Felton Davis, or any of the other witnesses thought. The crucial question is what Norris Hebert knew and when he knew it. There is no question that Hebert recognized a risk because he discussed it with Durocher and they agreed that the task could be done safely. There are questions of fact as to what Durocher was told, but there is no dispute that Durocher felt the job could be done safely since he had tried it himself. While the jury was free to believe Lwhat they chose about the testimony of Hebert, there was still a legal requirement that Hebert knew that the accident was substantially certain to happen. There is no such evidence. While the expert for the plaintiffs, Stephen Kill-ingsworth testified that it was his opinion that the accident was substantially certain to occur, there was no evidence that Hebert had this knowledge, belief, or opinion. Killingsworth further suggests that his opinion is base on the fact that there was an industry standard rule and federal law requiring locking out and tagging and NAS chose to ignore it. However, the law is clear that the violation of a statute alone is not per se an intentional act sufficient to trigger the exclusion provision. Mott. v. River Parish Maintenance, Inc. 432 So.2d 827, 832 (La.1983). Therefore, since there were no facts to support an essential element to prove an intentional act it was manifest error for the jury to find an intentional act in this case.

For these reasons, I respectfully dissent.

      . In other assignments of error, NAS asserts the trial court erred in denying its motions for summary judgment, for directed verdict, and for judgment notwithstanding the verdict. In those motions, NAS argued that' the facts presented did not rise to the level of an intentional act for purposes of the exception to workers’ compensation exclusivity. As we are affirming the jury verdict, we find it unnecessary to address those assignments of error.


source: Caselaw Access Project

author: hBAGNERIS, J.

license: Public Domain

text:
    Lakisha O. WELLS v. STANDARD MORTGAGE CORPORATION.
    No. 2002-CA-1934.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2003.
    Writ Denied Nov. 14, 2003.

      Patrick D. Breeden, New Orleans, Counsel for Plaintiff/Appellant.
    Adriel G. Arceneaux, Graham & Arcen-eaux, LLC, New Orleans, Counsel for Defendant/Appellee.
    • Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. MCEAY, III, and Judge DENNIS R. BAGNERIS, Sr.
   hBAGNERIS, J.

FACTS

On March 5, 2002, Lakisha 0. Wells filed a petition (“2002 petition” or “2002 case”) against her mortgage holder, Standard Mortgage Company (“Standard”), for damages and return of real property located at 1413-1415 South Saratoga Street in New Orleans (“property”). Wells alleged in the 2002 petition that after a fire damaged her property, Standard held the insurance proceeds to be paid to the contractor as the property was repaired.

The first payment of the insurance proceeds was issued jointly to Wells and the contractor; Wells received the check first, endorsed it, and forwarded the check to the contractor who had completed the first phase of repairs. Wells alleged that Standard subsequently was negligent and failed to exercise the skill and prudence. of a fiduciary when it issued the second check directly to the contractor without verifying that the work had been completed. Wells claims that the contractor forged her name to cash the check. Wells alleged that Standard or the insurance company improperly paid the remaining insurance proceeds to the contractor. The contractor, according to Wells, is no longer repairing her property.

As a result of the fire and the failure of the contractor to repair the property, the City of New Orleans condemned part of the property, which had been used as 12rental apartments. Unable to rent the property and generate revenue, Wells fell behind in her mortgage. Wells claims that she tendered payments by check and in cash to Standard, which Standard refused to accept. Standard foreclosed on her property, according to Wells, in order to hide the. mistaken payments- to the contractor.

On March 28, 2002, Standard filed its exceptions of lis pendens and no cause of action in the 2002 case. Standard pointed out that it had previously filed a suit for foreclosure via executory process against Wells in 2001 (“2001 petition” or “2001 case”). Standard argued that the 2001 and 2002 petitions were between the same parties in the same capacities on the same causes of action with the same object, thus precluding prosecution of the 2002 petition. In addition, Standard argued that the 2002 petition failed to state a cause of action for allegedly failing to preserve deposits for repair work. Standard was not a party to the contract between Wells and the contractor; and without privity of contract between Standard and Wells, the allegation of breach of contract fails.

On June 12, 2002, Wells filed her opposition to Standard’s exceptions of lis pendens and no cause of action. Wells conceded that “as for the lis pendens, Standard is most likely correct” and agreed to stay the 2002 case pending this court ruling on the appeal of the trial court’s granting of Standard’s exceptions in the 2001 case. Wells opined that if the exception of lis pendens were granted, Wells 1 swould be forced to file a third petition, which Standard would most likely challenge based on prescription.

In her opposition to Standard’s exception of no cause of action, Wells argued that Standard was, in effect, a party to the contract between Wells and the contractor by holding the insurance proceeds used to pay the contractor. That is, Standard was a depository of the insurance funds, and a depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property. La. C.C. art. 2937. Wells argues that Standard would not have paid a contractor hired to repair its property if the contractor had not actually made the repairs.

On June 19, 2002, the trial court signed the judgment granting Standard’s exceptions of no cause of action and lis pendens and dismissed Wells’ 2002 petition. On August 6, 2002, Wells filed her motion for a devolutive appeal, which the trial court granted on August 12, 2002.

On October 9, 2002, this court affirmed the trial court’s granting of Standard’s exception of no cause of action in the 2001 case. Standard Mortgage Corporation v. Lakisha O. Wells, unpub., 2002-0895 (La.App. 4 Cir. 10/9/02), 829 So.2d 673. This court found that the trial court did not err as to the executory proceedings; that is, Standard was the proper entity to move for executory process, and Standard properly followed the procedure for executory process. This court pretermitted discussion of Wells’ assignments of error regarding the preliminary injunction, damages, and sanctions.

DISCUSSION

Wells argues that this court should review the trial court’s granting of Standard’s exception of lis pendens in light of the fact that the 2001 case has been |4dismissed and that this court has affirmed the dismissal. Thus, the only re-’ maining case is the 2002 case, and lis pendens is no longer applicable. Furthermore, because the trial court found that an ordinary proceeding for damages could not be joined with an executory proceeding of foreclosure, and this court pretermitted discussion of the damages claim in the 2001 case, the decision in the 2001 case is not res judicata in the 2002 case.

La. C.C.P. art. 531 governs lis pendens and states:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of alb

The test for ruling on an exception of lis pendens is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Domingue v. ABC Corporation, 96-1224, p. 3 (La.App. 4 Cir. 6/26/96), 682 So.2d 246, 248. The exception of lis pendens has the same requirements as the exception of res judi-cata and is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities. Domingue, 96-1224, p. 3, 682 So.2d 246, 248.

The first requirement for granting an exception of lis pendens is that there are two or more suits pending. A suit is considered pending for lis pendens purposes if it is being reviewed by an appellate court. Glass v. Alton Ochsner Medical Foundation, 2002-0412, p. 4 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 406, citing Board of Trustees of Sheriff’s Pension and Relief Fund v. City of New Orleans, 2001-0497, p. 2 (La.App. 4 Cir. 3/13/02), 813 So.2d 543. The suit subject to this appeal was filed in the Civil District Court for the Parish of Orleans Lon March 5, 2002. Standard contends that when Wells filed this suit, the 2001 petition was pending because this court did not rule on this case until October 9, 2002 and the Louisiana Supreme Court did not deny writs in this case until November 19, 2002. Wells does not deny that at the time of the trial court’s ruling in this matter, both the 2001 case and the 2002 case were pending. Thus, the requirement that two or more cases are pending has been met.

The second requirement for granting lis pendens is that the suits involve the same transaction or occurrence. Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057, 1600, citing Comment (a) to La. R.S. 13-.4231. The 2001 and 2002 cases arise out of the same transaction: the foreclosure of Wells’ property after a fire. In the 2001 case, Standard filed an executory proceeding for foreclosure based on Wells’ failure to pay. In the 2002 case, Wells filed a petition for breach of contract and damages arising out of Standard’s allegedly negligent disbursement of the insurance proceeds to the contractor. In each case, the alleged contract at issue is the mortgage held by Standard. Thus, the two suits arise out of the same transaction.

The third requirement for granting lis pendens is that the suits involve the same parties in the same capacities. Identity of parties does not mean the parties Lmust be the same physical or material parties; rather, they must appear in the suit in the same quality or capacity. Duffy v. Si-Sifh Corp., 1998-1400, p. 8 (La.App. 4 Cir. 1/9/99), 726 So.2d 438, 443. The only requirement is that the parties be the same “in the legal sense of the word.” Duffy, 1998-1400, p. 8, 726 So.2d 438, 443. The 2001 case and the 2002 case both involved Standard as the mortgagee and Wells as the mortgagor. Thus, the requirement that the suits involve the same parties in the same capacities has been met.

Wells urges this court to review the trial court’s actions in light of the judgment in the 2001 case becoming final. See Slater v. Slater, 336 So.2d 965 (La.App. 4 Cir. 1976). In Slater, the case that formed the grounds for lis pendens was found to be void by the Louisiana Supreme Court. Slater, 336 So.2d 965, 967. As a result, this court held that in the interest of justice, “the exception of lis pendens must now be overruled, whether or not the trial court judgment maintaining that exception was correct when rendered.” Slater, 336 So.2d 965, 967.

The court in Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 34,796 (La.App. 2 Cir. 8/22/01), 796 So.2d 66 more recently stated:

Because lis pendens does not address the merits of the disputes between the parties, a reviewing court considers lis pendens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court judgment. ■

Brooks Well Servicing, 34,796, p. 2, 796 So.2d 66, 68, citing La. Cotton Ass’n Workers’ Compensation Group Self-Insurance Fund v. Tri-Parish Gin Co., Inc., 624 So.2d 461 (La.App. 2 Cir.1993).

At the time of the hearing, the trial court correctly granted the exception of lis pendens in the 2002 case because the 2001 case was pending at the appellate |7level. At the time of this court’s review, however, the 2001 case is no longer pending, thus removing the basis for lis pendens. The 2001 case involved the foreclosure of the property through an executory proceeding, and Wells was procedurally prohibited from bringing her ordinary negligence action in the executory proceeding. The 2002 case involves Wells’ allegation that Standard negligently disbursed the insurance proceeds and created a financial hardship for her. Thus, the judgment in the 2001 case is not res judicata in the 2002 case, as it relates to Wells’ negligence claim.

Wells argues next that the trial court erred in granting Standard’s exception of no cause of action. The Louisiana Supreme Court in Fink v. Bryant, 2001-0987 (La.11/28/01), 801 So.2d 346 recently stated:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234 (La.1993). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. Proe. Ann. art. 931. The exception is triable on the face of the papers and for the purposes of determining -the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners, 93-0690 (La.7/5/94), 640 So.2d 237. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court and this Court should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. City of New Orleans, 640 So.2d at 253. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of | sany claim which would entitle him. to relief. Haskins v. Clary, 346 So.2d 193 (La.1977).

Fink v. Bryant, 2001-0987, p. 3-4, 801 So.2d 346, 348-349.

Wells claims that Standard was the depository of the insurance proceeds and that it was negligent, in disbursing -the funds to the contractor. Wells alleges that the trial court granted the exception of no cause of action because the contract for repair of the property was between Wells and the contractor, not Standard. The mortgage between Standard and Wells, however, is: also relevant, as Wells alleges that Standard was the depository of the insurance proceeds to be used to pay the contractor for repairs to the property. Taking the facts alleged in Wells’ petition to be true for purposes of evaluating the exception of no cause of action, Wells presented a scenario that states a cause of action against Standard on the face of the petition. Therefore, the trial court erred in granting Standard’s exception of no cause of action.

For these reasons, we reverse the trial court’s order granting Standard’s exceptions of no cause of action .and lis pendens.

REVERSED.

      . Standard Mortgage Corp. v. Lakisha O. Wells, CDC # 2001-12674.

      . In the 2001 case, Wells filed a petition for an order suspending the seizure and sale of her property; alternatively, she asked for a preliminary or permanent injunction, damages, and return of the seized properly. On March 1, 2002, the trial court granted Standard’s exception of no cause of action in the 2001 case on the grounds that an ordinary proceeding may not be incorporated into an executory proceeding. On March 6, 2002, Wells moved for an order of appeal, which was granted on March 8, 2002.

      . Comment (a) to La. R.S 13:4231, in pertinent part, reads:
      The central inquiry is not whether the second action is based on the same cause or cause of action (a concept which is difficult to define) but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. This serves the purpose of judicial economy and fairness by requiring the plaintiff to seek all relief and to assert all rights which arise out of the same transaction or occurrence. This prevents needless relitigation of the underlying facts and will free the defendant from vexatious litigation; and, by focusing on the transaction or occurrence which would be comparatively easy to determine, this proposal avoids the much more difficult problem of defining what constitutes "cause of action” is avoided. For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.

      . In the 2002 petition, Wells also challenges the foreclosure through executory process. The 2001 case addressed this issue and has been affirmed by this court, with the Louisiana Supreme Court denying Wells’ petition for review in that court. Accordingly, the 2001 case is res judicata on the issue of Standard's use of executory process to foreclose on the property.


author: JjCOOKS, Judge.

text:
    STATE of Louisiana v. Larry COLLINS.
    No. 03-388.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2003.

      Asa Skinner, Assistant District Attorney, Leesville, LA, for Appellee, State of Louisiana.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Larry Collins.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and BILLY H. EZELL, Judges.
   JjCOOKS, Judge.

Defendant pled guilty to distribution of cocaine and was sentenced to sixteen years at hard labor, fined $1,500.00 and ordered to pay court costs. He appeals his sentence contending it was excessive. For the following reasons, we affirm.

FACTS

On December 7, 2001, the Defendant, Larry Collins, distributed cocaine to an undercover officer. Defendant was charged by bill of information with two counts of possession of cocaine with intent to distribute, a violation of La.R.S. 40:967(A). Defendant initially entered a plea of not guilty, but eventually pled guilty to distribution of cocaine, also a violation of La.R.S. 40:967(A). Defendant was subsequently sentenced to sixteen years at hard labor, to run concurrent to any other sentence he was subject to, with credit for time served. He was ordered to pay a fine of $1,500.00 and court costs. A Motion to Reconsider Sentence was filed and denied by the trial court. Defendant then lodged this appeal contending the sentence imposed was excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Initially, we note there is a problem with the bill of information. The record indicates Defendant was charged with two counts of possession of cocaine with intent to distribute. Defendant entered a plea of guilty to count one of the bill and count two was dismissed as part of a plea agreement. However, the record further indicates the bill was not amended and Defendant pled guilty to distribution of cocaine.

In State v. Charles, 02-0443 (La.App. 3 Cir. 10/2/02), 827 So.2d 553, writ denied, 02-2707 (La.3/28/03), 840 So.2d 569, the defendant was charged with ^distribution of cocaine, but pled guilty to an amended charge of possession with the intent to distribute cocaine, which this court found was a nonresponsive offense. See also State v. Starks, 615 So.2d 943 (La.App. 1 Cir.1993). Defendant, thus, pled guilty to a nonresponsive offense; and this court found it was an error for the State not to amend the bill of information. See La.Code Crim.P. art. 814.

In State v. Richard, 99-1078 (La.App. 3 Cir. 12/27/00), 779 So.2d 927, this court recognized as error patent the defendant’s plea to a nonresponsive crime. In addressing the error, we stated:

According to this court in State v. Price, [461 So.2d 503 (La.App. 3 Cir.1984)] the State should have amended the bill of information to reflect the Defendant’s plea to the nonresponsive offense, which the State did not do in the instant case. However, later, in State v. Rito, [96-1444 (La.App. 3 Cir. 10/8/97), 700 So.2d 1169] this court stated that, neither a statute, nor the constitution required the prosecution to amend the bill of information before a defendant can plead guilty to a nonresponsive crime. The court stated:
It is well settled that a defendant may plead guilty to a crime nonre-sponsive to the original indictment as long as the district attorney accepts it. La.Code Crim.P. art. 487(B) and State v. Price, 461 So.2d 503 (La.App. 3 Cir.1984). Further, the state is not constitutionally or statutorily required to amend the information before the defendant can plead to a nonrespon-sive offense. Price, 461 So.2d 503 (Knoll, J., dissenting).
Nevertheless, the court went on to decide whether the state’s failure to amend the bill of information was harmless or reversible error. The court found the first circuit’s opinion in State v. Barclay, [591 So.2d 1178 (La.App. 1 Cir.1991), writ denied, 595 So.2d 653 (La.1992)] to be dispositive of the issue. Discussing Barclay, the court stated:
In that case, the defendant was charged by grand jury indictment with aggravated rape but pled guilty to conspiracy to commit aggravated rape. The court espoused the following harmless error principle to uphold the conviction and sentence despite the state’s failure to formally amend the bill of information:
[ W]here ... the defendant enters a plea of guilty to a crime nonrespon-sive to the ^original indictment when such plea is acceptable to the district attorney, the defendant is fully aware of the charge to which he pleaded as shown by extensive Boykinization, and the plea is not prejudicial to the defendant, any error caused by a failure to formally amend the indictment is harmless.
In Rito, the court distinguished State v. Cook, [372 So.2d 1202 (La.1979)] which found reversible error in the state’s failure to amend the bill of information. This court stated:
We are able to distinguish the Supreme Court case from the instant case because in the former case, the nonresponsive crime to which that defendant pled (simple burglary of an inhabited dwelling) was more serious than the offense he was originally charged with (simple burglary). As a result, the Supreme Court found a flaw, justifying reversal in that case. In contrast, the crime that defendant pled guilty to in this case was less serious than that originally charged with, and the resulting sentence imposed was more favorable to the defendant in this instance.

Id. at 929-930 (Footnotes omitted).

Possession with the intent to distribute cocaine and distribution of cocaine are contained in the same statute and carry the same penalty. Our examination of the record reveals the Barclay factors were met. The State accepted Defendant’s plea, and thoroughly Boykinized Defendant. The trial court stated Defendant was pleading guilty to distribution of cocaine and explained the nature of that offense as well as its penalty range. When asked if he understood what he was pleading guilty to and the penalty range, Defendant replied “Yes, sir.” Defendant also benefitted from his plea in that one charge was dismissed, no habitual offender bill was filed and at least one-half of his sentence was to run concurrent with a sentence he was then serving. He also received a mid-range sentence of sixteen years. Facing the possibility of a $50,000.00 fine, he was ordered to pay only $1,500.00. Thus, Defendant clearly was [4not prejudiced and the error is harmless.

We also note the trial court failed to impose the first two years of Defendant’s sentence without benefit of parole, probation, or suspension of sentence. La.R.S. 15:301.1(A) and (C) provide that these provisions are self-activating and occur by operation of law. Thus, we find Defendant’s sentence is deemed to contain the restriction pursuant to La.R.S. 15:301.1(A).

EXCESSIVE SENTENCE

Defendant contends the trial court imposed an excessive sentence. In State v. Williams, 02-707, pp. 7-9 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100-01, we stated as follows:

La. Const, art. 1, § 20 ensures that “[n]o law shall subject any person to ... cruel, excessive, or unusual punishment.” A punishment is considered constitutionally excessive if it “(1) makes no measurable contribution to acceptable penal goals of punishment and hence is nothing more tha[n] the purposeful and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” State v. Wilson, 96-1392, p. 3 (La.12/13/96); 685 So.2d 1063, 1065(citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). When reviewing a sentence, the appellate court must be mindful that the trial court is in the best position to consider the aggravating and mitigating circumstances of each case and that the trial court is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957. As such, the reviewing court will determine whether the trial court abused its broad discretion, not whether another sentence may have been more appropriate. Id.
The trial court must state for the record the considerations taken into account and the factual basis for the sentence. La.Code Crim.P. art. 894.1(C). Although the trial court need not refer to every factor listed in Article 894.1(A), the record should affirmatively reflect that adequate consideration was given to codal guidelines in particularizing the defendant’s sentence. State v. Iron, 00-1238 (La.App. 3 Cir. 2/15/01); 780 So.2d 1123, writ denied, 01-1232 (La.3/15/02); 811 So.2d 898. Yet, when the trial court fails to adequately address the factors of La.Code Crim.P. art. 894.1, “the trial court’s reasoning alone will not necessitate the need for re-sentencing as long as an adequate factual basis is found within the record.” State v. Butler, 98-1258, p. 7 (La.App. 3 Cir. 2/3/99); 734 So.2d 680, 684.
|sThe trial court may also consider other factors not provided by La.Code Crim.P. art. 894.1. Specifically, when the offense to which the defendant has pled guilty inadequately describes the entire course of the defendant’s conduct, the court may consider the benefit obtained by the defendant through the plea bargain. State v. Lanclos, 419 So.2d 475 (La.1982). The trial court should particularly make such considerations where the plea bargain results in a significant reduction in the defendant’s potential exposure to imprisonment. State v. Robinson, 33,921 (La.App. 2 Cir. 11/1/00); 770 So.2d 868; State v. Waguespack, 589 So.2d 1079 (La.App. 1 Cir. 1991), writ denied, 596 So.2d 209 (La.1992). In addition, the trial court may consider other criminal activity which did not result in a conviction. State v. Texada, 98-1647 (La.App. 3 Cir. 5/5/99); 734 So.2d 854.

Defendant pled guilty to one count of distribution of cocaine and was sentenced to sixteen years at hard labor, to run concurrent to any other sentence he was subject to serve, with credit for time already served, and ordered to pay a fine of $1,500.00 and court costs. In exchange for his plea, the State dismissed the accompanying charge of possession of cocaine with intent to distribute, agreed to waive the filing of any habitual offender proceedings, and recommended that at least half of any sentence imposed run concurrent to any sentence Defendant was then serving.

At sentencing, the trial court made the following comments:

All right. The court considered all of this [the Defendant’s medical records] as well as reviewed the Article 894.1 factors of the Code of Criminal Procedure and found that the following were applicable: First, this is a drug case and there is significant economic harm or impact on society in general when one is dealing in the use or distribution of illegal controlled dangerous substances. There are no substantial grounds which would tend to excuse or justify his criminal conduct nor did he act under strong provocation by any victims. He’s 36 years of age. He’s single and has no children. He is in, what I’d classify as, poor health. According to this, he has HIV and some of the complications that are a result of that illness. His vision in one eye is impaired. There are some mental health issues as well, according to the records, and I understand he’s also on dialysis at this point.
| (¡He has no employment record and there’s no indication of any work history in the PSI. He1 has- an eleventh grade education and he has a history of drug and alcohol use. He did receive treatment one time, but failed to comply or complete that. He’s classified as a third felony offender in this case. His prior record includes juvenile — a juvenile history, in that in 1982, he was convicted of felony theft and given two years Louisiana — at LTI. As an adult, on January ,27, 1998 in this court, he was convicted of distribution of marijuana and placed on five years probation. That was revoked. He was given good time parole twice and that was revoked. On September 18th, 1992 in this court, he was convicted of distribution of cocaine and given 18 years Department of Corrections. A good time parole at that time in — January 12th, 2001 was given and that was revoked on February 25th, 2002 and his next scheduled good time date is September 2nd, 2006.

The trial court then sentenced Defendant stating the following:

Considering all of the factors in this case and primarily his health, the court is going to order that this sentence run concurrent — totally in concurrent with any other sentence that he’s currently subject to.
I think he’s going to be in prison for a long enough period of time and there is some, some consideration by this court that he may not make it out of prison because of his health and that’s a factor the court considered in this, in this issue of concurrency versus consecutiveness.

Defendant specifically contends that “in view of his dire medical condition — [Defendant] suffers from HIV, undergoes regular dialysis, and has a history of mental health issues — the sentence he received is tantamount to a sentence of life imprisonment.” Defendant also argues the trial court and trial counsel misconstrued the charges against him because the bill of information charged him with possession of cocaine with intent to distribute but the trial court sentenced him for distribution of cocaine. Defendant asserts this error “reveals a less than considered process by which [he] received such a grave sentence.”

In his Motion to Reconsider Sentence, Defendant merely alleged his sentence was “excessive and improper.” Although it is arguable Defendant did not preserve 17these issues for review, we will review them in the interest of justice. Rule 1-3, Uniform Rules — Courts of Appeal; State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied, 02-0029 (La.10/14/02), 827 So.2d 420.

We note the trial court specifically considered the Defendant’s HIV status at sentencing. The trial court ran the entirety of the Defendant’s sentence concurrent with the sentence he was then serving because of his HIV status and various other health conditions.

Defense counsel recited for the court the charge to which Defendant was entering a guilty plea as follows:

BY MS. NELSON:
Your Honor, at this time, we would be withdrawing our former plea to count one, bill of information 62,431, charging Mr. Collins with the offense of distribution of cocaine and tender a plea of guilty to that offense, Your Honor.
* * *
BY MR. SKINNER:
... that is correct, Your Honor.
BY THE COURT:
All right. Okay. Is that, is that your plea Mr. Collins?
BY MR. COLLINS:
Yes, sir.

The record establishes the trial court informed Defendant he was pleading guilty to distribution of cocaine and explained the nature of the charge as well as the penalty range. The Defendant indicated he understood the charge and the penalty range. The Waiver of Constitutional Rights and Plea of Guilty form was signed by Defendant, his attorney, an assistant district attorney, and approved by the judge. That form |sindicates the Defendant was entering a plea of guilty to distribution of cocaine. Furthermore, the recitation of facts at Defendant’s guilty plea indicates he sold cocaine to an undercover officer.

Thus, Defendant’s contention that the judge did not properly consider his case is not supported by the record. Also, Defendant has failed to show prejudice since the crime of distribution of cocaine and possession of cocaine with intent to distribute carry the same penalty.

Under La.R.S. 40:967(B)(4)(b), Defendant was subject to a sentence from two to thirty years and a possible fine of up to $50,000.00. Defendant was given a mid-range sentence of sixteen years and a fine of $1,500.00. Defendant is classified as a third felony offender, having previously been convicted of distribution of marijuana and distribution of cocaine. However, the State agreed not to file any habitual offender proceedings under La.R.S. 15:529.1 or La.R.S. 40:982. Lastly, an accompanying charge of possession of cocaine with intent to distribute was dismissed. Thus, Defendant benefitted significantly from the plea bargain. The trial court did not abuse its discretion in the imposition of Defendant’s sentence.

DECREE

For the foregoing reasons, Defendant’s sentence is affirmed.

AFFIRMED.


author: J^PICKETT, Judge.

text:
    Lester SMITH v. QUARLES DRILLING COMPANY.
    No. 03-795.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2003.
    Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff-Appellant, Lester Smith.
    Sidney W. Degan, III, Foster P. Nash III, Degan, Blanchard & Nash, New Orleans, LA, for Defendant-Appellee, Quarles Drilling Company.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   J^PICKETT, Judge.

FACTS

Lester Smith was injured on the job on November 4, 1994. After protracted litigation, including a previous appeal to this court (Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227, reversing the WCJ’s determination that Smith forfeited his right to benefits by misrepresenting a previous injury and remanding for further proceedings), Smith was awarded benefits on November 30, 2000. The WCJ also awarded $2,000.00 in penalties and $6,000.00 in attorney’s fees. On appeal of that determination, this court increased the amount of attorney’s fees to $29,000.00, and the supreme court denied writs. Smith v. Quarles Drilling Co., 01-351 (La.App. 3 Cir. 10/3/01), 801 So.2d 1128, writs denied, 02-80, 02-123 (La.3/28/02), 811 So.2d 943, 945. On May 7, 2002, Quarles made payment of $23,000.00 to Michael Miller, Smith’s attorney, which was the balance owed on the $29,000.00 judgment. Miller responded by filing a Motion for Penalties and Attorney’s Fees, alleging that Quarles had not paid the full amount of the judgment timely since they failed to include interest from the date of the judgment of this court, October 3, 2001. Quarles responded by filing a Motion for Sanctions against Miller.

The WCJ found that interest on the judgment was not a “clear, discernable ‘award payable’ per 23:1201(G).” Thus, penalties and attorney’s fees were not payable. The WCJ did not rule on whether interest was payable or not. Finally, she denied Quarles’ Motion for Sanctions.

Both parties appealed the judgment, but Quarles has abandoned their appeal. Thus, only Smith appeals.

\ .ASSIGNMENTS OF ERROR

The appellant Smith alleges one assignment of error:

The hearing officer erred in failing to award penalties and attorney fees.

DISCUSSION

The sole assignment of error is based on the proposition that the increased attorney’s fees awarded by this court in its October 3, 2001 judgment should bear legal interest from that date until the date paid, May 7, 2002. The appellant relies primarily on George v. Guillory, 00-591 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, to support this contention. In that case, the WCJ awarded penalties and attorney’s fees, but failed to award legal interest thereon. This court found no error in that ruling, and found that legal interest attaches automatically by operation of law:

The fact that a workers’ compensation judge is silent as to legal interest in his judgment does not constitute denial of such interest; legal interest is mandatory under the workers’ compensation statute. Kortz v. Colt Energy Servs., Inc., 97-159 (La.App. 5 Cir.7/29/97), 698 So.2d 460. Legal interest is due on penalties and attorneys fees from the date of judgment in workers’ compensation cases. See McLaughlin v. Hill City Oil Co./Jubilee Exxon, 97-577 (La.App. 3 Cir. 10/8/97); 702 So.2d 786, writ denied, 97-2797 (La.2/13/98); 706 So.2d 994; Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97); 696 So.2d 1382. This interest automatically attaches until judgment is satisfied, whether prayed for in petition or mentioned in judgment. See Crooks v. Town of Ball, 94-466 (La.App. 3 Cir. 11/2/94); 649 So.2d 597. Accordingly, the trial court did not err by not including an award of legal interest in its judgment. Such legal interest automatically attaches upon the award of penalties and attorneys fees under workers’ compensation law. Thus, Mr. George is entitled to legal interest on the award of penalties and attorneys fees by the trial court from the date of judgment.

Id. at 1211.

Quarles argues that George was wrongly decided, citing Sharbono v. Steve Lang & Son Loggers, 97-110 (La.7/1/97), 696 So.2d 1382, or, alternatively, that Smith’s disputed claim for compensation was untimely because it was not filed until Latter the judgment was paid, citing Fallen v. New Orleans Police Department, 01-544 (La.App. 4 Cir. 2/6/02), 812 So.2d 692, writ denied, 02-702 (La.5/3/02), 815 So.2d 823. The WCJ found that interest on the award was not clearly due, so La.R.S. 23:1201(G) was not applicable.

A WCJ’s rulings with regard to attorney’s fees are factual determinations which will not be disturbed by a reviewing court unless they are clearly wrong. Clifton v. Ditto’s Apparel, 98-1180, 99-1181 (La.App. 3 Cir. 2/3/99); 736 So.2d 882, writ denied 99-651 (La.4/23/99); 742 So.2d 891. In this case, if interest is due, penalties and attorney’s fees would be payable under La.R.S. 23:1201(G), which states:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in' this Subsection shall not exceed three thousand dollars in the aggregate.

There is no jurisprudence to support the “clear, discernable” language used by the WCJ. The issue is whether interest was due, and if it was, whether penalties and attorney’s fees are owed'. Thus, interest is “the award payable.” There is no “reasonably controverted” language in section 1201(G), as there is in section 1201(F). We must determine if 'interest is due to determine if it is an award payable, and that is strictly a legal question. The WCJ’s reasoning is flawed, in that she failed to determine if there was in fact an award payable which was not paid.

The facts in Fallen were succinctly put forth by the fourth circuit:

|4On January 15, 2000, our opinion in Fallen v. City of New Orleans, [99-0656 (La.App. 4 Cir.12/15/99),753 So.2d 910] which affirmed the award of additional penalties and attorney’s fees under LSA-R.S. 23:1201(G), became, final. On February 15, 2000, the thirty-day deadline for payment called for by LSA-R.S. 23:1201(G) passed. On March 28, 2000, the defendant paid the judgment and penalties assessed against it. On April 10, 2000, the plaintiff filed another LSA-R.S. 23:1201(G) rule for additional penalties and attorney’s fees. On June .5, 2000, after a hearing on this rule, additional penalties and attorney’s fees were denied. It is from this judgment that the plaintiff now appeals.

Id. at 693.

The court found that since the language of section 1201(G) states that penalties and attorney’s fees shall be paid at the same time as the award which is the basis for the penalty, it follows that once the judgment has been paid, even if it is beyond the thirty days required, additional penalties and attorney’s fees cannot be sought. Judge Gorbaty dissented. He claimed that the penalties and attorney’s fees are mandatory for failure to pay timely.

This case is distinguishable from our case, because if interest is due on the judgment of this court, as argued by the appellants, then the tender of $23,000.00 on May 7, 2002, did not satisfy the judgment. Thus, there would still be an award payable, and the filing on May 9, 2002, of a disputed claim for compensation was timely-

In the hearing below, Smith claimed that interest was automatic pursuant to La.R.S. 23:1201.3. The supreme court in Sharbono held that that section “does not govern the calculation of interest on a hearing officer’s award of penalties and attorney’s fees.” Id. at 1386. They reasoned that fees and penalties are not compensation within the meaning of the statute. They did conclude, however, that a judgment awarding attorney’s fees and penalties do bear interest from the date of judgment, where interest is awarded.

UQuarles’ argument that the failure to seek interest on the awards in the previous hearing before this court bars the current action is misplaced. This court’s opinion in George indicates that interest attaches to an award of penalties and attorney’s fees as a matter of law, even though the court does not include such an award in the judgment. Thus, interest was due, Quarles failed to pay interest, and the filing by Smith was timely on May 9, 2002, because the entire judgment had not been paid within thirty days. Smith is entitled not only to the interest but also to further penalties and attorney’s fees under the mandatory provisions of section 1201(G).

We find the WCJ erred in denying the appellant’s request for penalties and attorney fees. That judgment is reversed and we hereby grant penalties in the amount of $3,000.00 and attorney fees in the amount of $2,500.00. Costs of this appeal are assessed to Quarles Drilling.

REVERSED AND RENDERED.