source: Caselaw Access Project

author: J^FOIL, J.

license: Public Domain

text:
    NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Company, Norfolk and Western Railway Company, the Alabama Great Southern Railroad Company, Southern Region Industrial Realty, Inc., Central of Georgia Railroad Company, and the Cincinnati, New Orleans and Texas Pacific Railway Company v. CALIFORNIA UNION INSURANCE COMPANY and Certain Underwriting Members Of Lloyd’s, et al
    No. 2002 CA 2696, 2003 CA 0110.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.
    Writ Denied Dec. 19, 2003.

      Cory R. Cahn, Benjamin R. Slater, Jr., Benjamin R. Slater, III, New Orleans, Carmack M. Blackmon, Baton Rouge, for Appellees Plaintiffs Norfolk Southern Corporation, et al.
    Michael D. Hunt, Freddie Pitcher, Jr., Jane H. Barney, Baton Rouge, Richard N. Dicharry, New Orleans, for Appellants Defendants Certain Underwriting Members of Lloyd’s.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   J^FOIL, J.

The Norfolk Southern Corporation and certain of its affiliated railroad companies (collectively, Norfolk) filed this lawsuit for declaratory judgment and damages against various underwriting members of Lloyd’s London and certain London Market Insurance Companies (collectively, the London Insurers). In its original and amended petitions, Norfolk sought a declaration that it had coverage under several excess comprehensive general liability policies subscribed to by the London Insurers from 1960 to 1986 for the costs of cleaning up various polluted sites around the United States, including the Jennison-Wright site in Toledo, Ohio. Two judgments concerning the Jennison-Wright site are challenged in separate appeals numbered 2002 CA 2696 and 2003 CA 0110. In appeal number 2002 CA 2696, the London Insurers challenge a summary judgment rendered in favor of Norfolk, finding coverage under the excess policies. In appeal number 2003 CA 0110, the London Insurers challenge a judgment rendered following a cost trial, which judgment determined Norfolk’s ultimate net loss and purportedly resolved any issues of exhaustion of self-insured retention limits (SIRs) and/or allocation. Although the cases have not been consolidated for appeal, because many of the issues pertaining to each appeal are interrelated, we address them both in a single opinion. For the reasons that follow, we affirm the summary judgment rendered on the issue of coverage, affirm the trial court’s finding as to ultimate net loss, and reverse and render judgment on the issues of exhaustion of SIRs and/or allocation.

[¡¡FACTS AND PROCEDURAL BACKGROUND

Norfolk filed this suit for declaratory judgment and for damages against the London Insurers seeking reimbursement for costs expended by Norfolk in remediat-ing various environmental sites located throughout the United States, including the one at issue in this appeal, the Jenni-son-Wright site in Toledo, Ohio.

The former Jennison-Wright facility (JW site) spans over 23 acres. Norfolk and Western Railway Co. (N & W) owns approximately 16 acres of the site. Penn Central Railroad originally owned the remaining acreage until it was later transferred to Consolidated Rail Corp. (Conrail). Beginning in 1910, N & W leased its property to the Jennison-Wright Corp., which operated a wood treatment facility using creosote. During the wood treatment process that spanned many years, creosote dripped onto and seeped into the ground, ultimately resulting in soil and groundwater contamination.

In November 1989, the Jennison-Wright Corp., which was in the process of remedi-ating the JW site, declared bankruptcy. Subsequently, in April, 1990, the Ohio state EPA notified N & W of its potential liability for the remediation of the JW site based on its ownership interest in the underlying property. Negotiations between N & W and the Ohio state EPA over the site went on for four years. Ultimately, in 1994, the EPA formally approved a Remedial Action Work Plan submitted by a remediation contractor retained jointly by N & W and Conrail. By means of this suit, Norfolk seeks reimbursement for the costs it has expended in remediating the JW site.

Pursuant to the various excess liability policies in effect from 1960 to 1986 issued to Norfolk and Western Railway Co. (N & W) and Norfolk Southern Corp., the London Insurers agreed as follows:

To indemnify the Assured for any and all sums which the Assured shall be legally liable to pay and shall pay as damages Land expenses as more fully defined by the term “ultimate net loss” on account of personal injuries and property damage as herein defined arising out of occurrences happening during the policy period and due to the conduct of the Assured’s business.

The term “occurrence” was most commonly defined in the policies as “one happening or series of happenings, arising out of or due to one event.” The policies do not define the terms “happening” or “event.” The policies defined “property damage” to exclude damage to property owned by the assured or property in the care, custody, or control of the assured.

All of the policies provided excess insurance coverage in successive layers above a substantial SIR in accordance with the terms of the policies. Throughout all policy periods, Norfolk chose to self-insure at the primary level and maintained SIRs of at least $1,000,000 per occurrence.

On November 23, 1999, Norfolk filed a motion for summary judgment as to insurance coverage for the JW site for remediation costs incurred as a result of creosote contamination caused by the operations of its lessee. The London Insurers opposed the motion with evidence allegedly demonstrating disputed issues of material fact. On January 6, 2000, the London Insurers filed a motion for summary judgment based on the alleged undisputed facts regarding Norfolk’s losses and the law on allocation and exhaustion of SIRs, which the insurers claimed required a dismissal of Norfolk’s claims. The trial court denied the London Insurers’ motion and thereafter granted Norfolk’s motion. In granting the summary judgment, the trial court concluded that the event triggering coverage under the policies was groundwater contamination. Judgment was signed February 1, 2000. Thereafter, the London Insurers filed a motion for review of the interlocutory ruling, asking the trial court to review its grant of summary judgment. Before ruling onj^the motion, however, the trial court designated the judgment final and appealable. This appeal by the London Insurers followed.

SUMMARY JUDGMENT

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. Appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Calhoun v. Hoffman-La Roche, Inc., 98-2770, p. 4-5 (La.App. 1 Cir. 2/18/2000), 768 So.2d 57, 60-61, writ denied, 00-1223 (La.6/23/2000), 765 So.2d 1041.

DISCUSSION

Within their second assignment of error, the London Insurers argue that the trial court erred in granting Norfolk’s motion for summary judgment as a matter of law. Specifically, they assert that the court erred in deciding that Ohio substantive law should apply to the claims regarding the JW site and then relying on a Kansas case in purporting to apply Ohio law.

By judgment dated August 26, 1999, the trial court ruled that the substantive law of the state in which each environmental site is physically located would be applied to determine the issues remaining to be litigated. Among those sites is the JW site in Ohio. In granting summary judgment and finding coverage in this case, however, the trial court relied on Cessna Aircraft Co. v. Hartford Acc. & Indem. Co., 900 F.Supp. 1489 (D.Kan.1995), a Kansas case. This is of no moment to our de novo review of the record before us. We shall apply Louisiana law to the issue of coverage because the London Insurers admit there is no conflict between the laws of | Bthe involved states. See Norfolk Southern Corp. v. California Union Ins. Co., 02-0369, 0371 and 0372, p. 30 n. 44 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, 190, 2003 WL 22110450, citing Favaroth v. Appleyard, 00-0359, pp. 4-5 (La.App. 4 Cir. 5/2/01), 785 So.2d 262, 265, writ denied, 01-1945 (La.11/9/01), 801 So.2d 375. The London Insurers argue that under any law, these excess policies were not even triggered and could not be found summarily to provide coverage. They argue specifically that liability under the excess policies is only triggered when the losses exceed the limits underlying all of the policies at issue. We disagree.

A review of the record indicates that the property damage for which Norfolk sought coverage at the JW site was the contamination arising out of the wood-preserving operations carried out at the site over the course of many years. Indeed, the trial court specifically found that the event triggering coverage in this case was groundwater contamination. The Jennison-Wright Corp. leased the site for use as a creosote facility from 1910 to 1990. As was the case with two of the Louisiana sites previously addressed by this court, the operations conducted at the JW site resulted in the routine deposit of contaminants onto the ground throughout the periods that the facility was in operation. In cases involving long-term environmental damage such as here, the property damage is generally not due to a single catastrophic event, but to numerous releases and discharges taking place over an extended period of time. In the cases dealing with the Louisiana sites, this court considered the characteristics of long-term environmental damage, the relevant policy language, and the facts of the case, and determined that the exposure theory is applicable to determine which policies, if any, were triggered. See Norfolk Southern Corp. v. California Union Ins. Co., 02-0369, 0371 and 0372, p. 32 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, 192. We will likewise apply that theory here.

Under the facts of this case, wood-preserving operations occurred in every year from 1910 to 1990. The London Insurers provided excess liability coverage to Norfolk from 1960 to 1986. Therefore, application of the exposure theory would result in triggering the policy periods existing during those years. The evidence shows that numerous releases, drips, and spills occurred as a normal part of the wood-preserving operations in each year the site was operational. As stated in the Norfolk cases involving the Louisiana sites, the drips and spills are to be considered as one occurrence. Id., 02-0369, 0371 and 0372 at p. 33, 859 So.2d at 192. Therefore, a single occurrence took place in each policy period from 1960 to 1986 and each policy existing during those years was triggered.

The trigger of coverage is the event or condition that determines whether or not a policy responds to a specific claim. Norfolk Southern Corp. v. California Union Ins. Co., 02-0369, 0371 and 0372, p. 31 n. 45 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, 190-91. Finding that a policy has been triggered, however, does not end the inquiry into whether or not coverage exists under that policy. Rather, we must next consider additional policy terms, including any limitations, exclusions, or defenses the insurer may raise. Id.

Here, in their first assignment of error, the London Insurers urge that the trial court erred in granting Norfolk’s motion for summary judgment as to coverage in the face of at least six obviously disputed facts material to the question of coverage, including: 1) whether the damage was due to an occurrence in each policy period; 2) whether only one occurrence in each policy period caused Norfolk’s alleged losses; 3) whether the alleged damage was to third-party property or owned property; 4) whether the occurrences and resulting damage were due to the conduct of the assured’s business as required by the policies; 5) whether Norfolk complied with the notice |sconditions of the policies; and 6) whether the alleged losses arose from fortuitous events. Also, in their third assignment of error, the London Insurers urge that the trial court erred in finding coverage under policies issued from 1976-1982 and from 1985-1986 despite pollution exclusions contained in those policies.

As noted above in our application of the exposure theory, we have already held that an occurrence took place in each policy period and that only one occurrence in each policy period gave rise to the damage. There are no disputed issues of material fact in this regard.

We likewise find no disputed issue of material fact as to whether the alleged damage was to third-party property or owned property. The London Insurers agreed to indemnify Norfolk for damages and expenses due to property damage. The policies defined property damage to exclude damage to property owned by Norfolk or in its care, custody or control. The property damage at the JW site consisted primarily of soil and groundwater contamination. In the cases dealing with the three sites in Louisiana, this court held that costs expended in connection with efforts to remediate damage to the groundwater, whether it was below Norfolk’s property or third-party property, would not be excluded from coverage pursuant to the owned property exclusion because such groundwater is not owned by the insured. Norfolk Southern Corp. v. California Union Ins. Co., 02-0369, 0371 and 0372, p. 35 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, 193-94.

Next, we find there is no issue of material fact as to whether the occurrences and resulting damage were due to the conduct of the assured’s business as required by the policies. This court previously held that Norfolk’s liability as the lessor/owner of property at one of the Louisiana sites arose out of the conduct of its business. Specifically, this court noted that Norfolk often leased property to other companies in order to obtain customers for its rail service. Norfolk Southern Corp. v. California Union Ins. Co., 02-0369, 0371 and 0372, p. 38 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, 195.

Regarding the issue of notice, based on the record before us we conclude that there is no issue of material fact as to whether Norfolk complied with the notice conditions of the policies. The evidence shows that the Ohio EPA first notified N & W of its potential responsibility for remediating the JW site on April 23, 1990. After that, N & W and Conrail began negotiations with the EPA that lasted for many years. Norfolk’s liability for the remediation expenses was not formally established until June 2, 1994. When Norfolk learned that the Jennison-Wright Corp. was not going to honor its remediation obligation, it gave notice to its insurers on October 10, 1990. We find this was sufficient to comply with the notice requirements of the policies.

Finally, we find no issue of material fact exists as to whether the alleged losses arose from fortuitous events. The London Insurers contend the damages sustained by Norfolk were not fortuitous because Norfolk chose to lease the JW site to the Jennison-Wright Corp. for the purpose of conducting known contaminating operations on the property. Based on the evidence presented, however, we conclude that the London Insurers failed to demonstrate that Norfolk acted with the specific intent to cause the property damage that occurred here. As such, we find the fortuity exclusion does not apply in this case.

Based on our de novo review, we conclude that summary judgment on coverage was appropriate in this case as there were no genuine issues of material fact and Norfolk was entitled to judgment as a matter of law. As such, we affirm the trial court’s judgment signed on February 1, 2000.

|inCOST TRIAL/ALLOCATION

DISCUSSION

Following the summary judgment on the issue of coverage, a cost trial was subsequently held on November 6 and 8, 2001, to determine Norfolk’s ultimate net loss and to resolve any issues of exhaustion of SIRs and/or allocation. Following Norfolk’s presentation of its case-in-chief, the London Insurers moved for dismissal of the claims, contending that Norfolk was unable to demonstrate that is costs were linked to the event — groundwater contamination — previously found by the trial court to be the event covered under the policies. The court took the motion under advisement and took additional evidence in London’s case-in-chief. On May 15, 2002, the trial court signed a judgment finding that Norfolk established an ultimate net loss of $4,492,717.96. The judgment further awards Norfolk pre-judgment and post-judgment interest “on all costs beyond their single retention.” In the judgment, the trial court does not specifically impose an obligation on the London Insurers to indemnify Norfolk for all amounts above a single retention, nor does it specifically apply an “all sums” approach as it did in the cases involving the Louisiana sites. See Norfolk Southern Corp. v. California Union Ins. Co., 02-0369, 0371 and 0372 (La.App. 1 Cir. 9/12/03), 859 So.2d 167. London asserts that the trial court erred to the extent that it implicitly committed these actions. In light of our holding in the Louisiana sites cases, we agree.

In the cases dealing with the Louisiana sites, this court determined that coverage would be allocated among the various triggered policies by applying a pro rata approach as opposed to an “all sums” approach. Under | nsuch an approach, liability is allocated on a pro rata basis over all periods in which contaminating activities took place, including those years in which Norfolk was uninsured. Accordingly, the amount of the judgment is divided by the total number of years that contaminating activities took place to obtain a judgment amount per year. Norfolk Southern Corp. v. California Union Ins. Co., 02-0369, 0371 and 0372, pp. 42-43 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, 198. We will likewise use the pro rata approach here.

In this case, the trial court found that Norfolk suffered an ultimate net loss of $4,492,717.96 in connection with the JW site. On review, we conclude that this finding is supported by the record. As such, that amount must be allocated among all years from 1910 to 1990 (years the JW site was in operation), for a total of eighty-one years. This results in a per year allocation of $55,465.653. Norfolk is responsible for those amounts allocable to the periods from 1910 through 1960, and from 1986 through 1990, when it was not insured. In addition, Norfolk must meet its SIR in every policy period from 1960 to 1986, as required by the terms of the policies. It is clear, however, that the amount allocable to each of the policy periods is not sufficient to exceed even one SIR. Therefore, under the facts of this case and considering the per year judgment amounts calculated above, the London Insurers do not owe any indemnification with regard to the JW site. Accordingly, we must vacate that portion of the trial court’s judgment signed on May 15, 2002 that is to the contrary, whether it be specific or implied.

CONCLUSION

For the foregoing reasons, we affirm the summary judgment signed February 1, 2000, finding coverage in favor of the plaintiff, Norfolk, under 11gthe policies existing from 1960 to 1986 with regard to the Jennison-Wright site in Toledo, Ohio.

We further affirm that part of the cost judgment finding Norfolk’s ultimate net loss at the Jennison-Wright site to be $4,492,717.96. We reverse that part of the judgment awarding pre- and post-judgment interest on all costs beyond Norfolk’s single retention incurred in connection with the Jennison-Wright site from the date on which the costs were paid. To the extent that the judgment purports to allocate the losses utilizing the “all sums” theory, it is reversed. Judgment is hereby rendered ordering the allocation of the losses pursuant to the pro-rata approach on the basis of each insurers’ time on the risk and degree of risk assumed. Judgment is further rendered in favor of the defendants, Certain Underwriting Members of Lloyd’s and Certain London Market Companies, finding that pursuant to the allocation method applied, they do not owe any indemnity with regard to the Jen-nison-Wright site. Costs of these appeals are assessed to Norfolk.

2002 CA 2696: SUMMARY JUDGMENT AFFIRMED.

2003 CA 0110: JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GAIDRY, J., concurs in results without reasons.

      . In addition to Norfolk Southern Corporation, the plaintiffs in this action are Norfolk Southern Railway Company, Norfolk and Western Railway Company, The Alabama Great Southern Railroad Company, Southern Region Industrial Realty, Inc., Central of Georgia Railroad Company, and The Cincinnati, New Orleans, and Texas Pacific Railway Company. Except where reference to the specific entity is necessary for clarity, we will refer to the plaintiffs collectively as Norfolk.

      . Norfolk’s fourth amending petition sought coverage for numerous environmental sites in Louisiana (3 sites), Tennessee (3 sites), Ohio (1 site), Georgia (4 sites), Virginia (7 sites), West Virginia (4 sites), Kentucky (1 site), South Carolina (2 sites), Florida (1 site), Illinois (2 sites), North Carolina (1 site) and Arkansas (1 site). The sites proceeded to trial either separately or in groups of sites located in the same state. These appeals deal only with the judgments concerning the Ohio site.

      . All judgments were designated final and ap-pealable.

      . In its original and amending petitions, Norfolk named numerous non-London market insurance companies as defendants in addition to the London Insurers. At the time of trial, however, the London Insurers were the only defendants remaining in the lawsuit.

      . Some of the policies placed these restrictions within the definition of “property damage,’’ whereas others placed the restrictions in the exclusions section of the policy.

      . Thus, the only remaining issue concerned the amount of money Norfolk expended remediating the JW site. That issue was resolved during an evidentiary hearing conducted in November 2001, which ruling is the subject of the appeal bearing docket number 2003 CA 0110, also addressed in this opinion.

      . See Norfolk Southern Corp. v. California Union Ins. Co., 02-0369, 0371 and 0372 (La.App. 1 Cir. 9/12/03), 859 So.2d 167.

      . We find no merit in the London Insurers’ assertion that the trial court erred in designating the summary judgment as final and appealable without hearing and resolving its pending motion for review of that interlocutory ruling. We construe the court’s silence as to the pending motion as a rejection of the relief requested therein. See Norfolk Southern Corp. v. California Union Ins. Co., 02-0369, 0371 and 0372, p. 20 n. 35 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, 184.
      Further, Norfolk filed a motion to strike the London Insurers' brief in connection with the appeal from the granting of summary judgment, number 2002 CA 2696. This court referred the motion to strike to the merits. We have considered the motion and deny it as meritless.

      . The policies had varying SIRs, the lowest of which was $1,000,000 per occurrence.

      . Because of this holding, we pretermit discussion of any other issues raised in either appeal by the London Insurers.


text:
    NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Company, Norfolk and Western Railway Company, the Alabama Great Southern Railroad Company, Southern Region Industrial Realty, Inc., Central of Georgia Railroad Company, and the Cincinnati, New Orleans and Texas Pacific Railway Company v. CALIFORNIA UNION INSURANCE COMPANY and Certain Underwriting Members Of Lloyd’s, et al.
    No. 2002 CA 2697.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.
    Writ Denied Dec. 19, 2003.
    Benjamin Slater, Jr., Cory R. Cahn, Benjamin Slater, III, New Orleans, Car-mack M. Blackmon, Baton Rouge, for Ap-pellees Plaintiffs Norfolk Southern Corporation, et al.
    Jane J. Barney, Michael D. Hunt, Freddie Pitcher, Jr., Baton Rouge, Richard N. Dicharry, New Orleans, for Appellant Defendant Certain Underwriters at Lloyd’s London subscribing To certain Policies of Insurance issued to Plaintiff.
    Panel composed of Judges FRANK FOILL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   J^FOIL, J.

This is an appeal by the defendants, Certain London Market Companies (the London Insurers), from a judgment in favor of the plaintiffs, Norfolk Southern Corporation, Norfolk Southern Railway Company, Norfolk and Western Railway Company, The Alabama Great Southern Railroad Company, Southern Region Industrial Realty, Inc., Central of Georgia Railroad Company, and The Cincinnati, New Orleans and Texas Pacific Railway Company (collectively Norfolk). This judgment was rendered on May 15, 2002, and concerns the issues of allocation/exhaustion stemming from the court’s previous finding of coverage under certain excess comprehensive general liability insurance policies subscribed to by the London Insurers from 1969 to 1986. Based on this court’s reversal of the trial court’s finding of coverage in Norfolk Southern Corp. v. California Union Ins. Co., 02-0370 (La.App. 1 Cir. 9/12/03), 853 So.2d 1141 (the coverage appeal), this appeal has been rendered moot and is hereby reversed.

As set forth in the coverage appeal, the background of this case is as follows. Norfolk filed this suit for declaratory judgment and for damages against the London Insurers seeking reimbursement for costs expended by Norfolk in remediating various environmental sites located throughout the United States, including the one at issue in this appeal. The Southern Wood Piedmont site (the site) consists of a 33-acre tract and a nearby 17-acre tract located in Macon, Georgia. Central of Georgia Railway Company has owned the 33-acre tract since the early 1900s, and Southern Region Industrial Realty has owned the 17-acre tract since 1962.

|3In 1913, Norfolk constructed a wood treating facility on the 33-acre tract in order to treat railroad ties for use in the construction of its tracks. Norfolk operated this facility from 1913 until approximately 1939. American Lumber and Treating Company then operated the facility from 1939 through 1942, after which Norfolk leased the plant to Southern Wood Preserving Company. This company and its successor entity, Southern Wood Piedmont Company (collectively SWPC), continued to operate the facility pursuant to a lease with Norfolk until SWPC shut down the facility at the end of February 1986. By the time the facility was closed in 1986, the site had been used as a wood treating facility for approximately 72 years. Consistent with this usage, the site was contaminated with wood-preserving chemicals such as coal tar creosote and pentachloro-phenol in diesel oil (penta).

Pursuant to its lease agreements with Norfolk, SWPC was required to surrender possession of the site to Norfolk at the end of the lease “in as good condition as [the site] may have been in prior to the use and occupation thereof by [SWPC].” Furthermore, SWPC was required to comply with all federal, state, and municipal laws and regulations and to indemnify Norfolk for damages resulting from its failure to do so. SWPC also assumed all responsibility for the disposal of its industrial wastes and agreed not to permit any such wastes to enter any stream on the leased property or to enter the sewage disposal system. Finally, SWPC was bound to hold Norfolk harmless in connection with the disposal of its industrial wastes with regard to the claims of any tenant, adjacent tenant, landowner, or any other person. The leases did not, however, hold SWPC responsible for contamination caused prior to its use of the property.

In February 1986, representatives of Norfolk and SWPC met to discuss cleanup of the site and what contributions, if any, Norfolk should be required 14to provide to the cleanup efforts. No state or federal entity had mandated the remediation. Moreover, no third party had filed a lawsuit against Norfolk regarding any contamination originating from the site.

After negotiations, Norfolk and SWPC tentatively agreed to a private cost-sharing plan based upon the years each had operated the site as a wood-preserving facility. Pursuant to their letter agreement, SWPC was responsible for 43 of the 72 years the plant was in operation (1943-1986) or 60% of the costs, and Norfolk was responsible for 29 of the 72 years (1913-1942) or 40% of the costs. In addition, SWPC agreed to assume all responsibility for the cleanup of penta at the site because Norfolk had only used creosote during its operation of the facility. Moreover, SWPC assumed full responsibility for the cleanup of the 17-acre tract that Norfolk had not used while operating the facility.

Cleanup operations began on the site in August 1986 and were ongoing at the time of trial. SWPC supervised and paid for the costs associated with the cleanup, and Norfolk reimbursed SWPC periodically for 40% of the costs in accordance with the agreement. Norfolk alleged that it had incurred expenses totaling $5.1 million in accordance with the cost-sharing plan and sought to recover these costs from the London Insurers.

lsThe London Insurers provided insurance coverage to Norfolk pursuant to various policies in effect from 1969 to 1986. The issue of coverage regarding the site proceeded to jury trial in September 2000. The jury ultimately returned a verdict finding that $3 million of Norfolk’s expenses were covered under the insurance policies. A judgment in accordance with this verdict was signed on October 2, 2000. The London Insurers filed a suspensive appeal from that coverage judgment, which was addressed in Norfolk Southern Corp. v. California Union Ins. Co., 02-0370 (La.App. 1 Cir. 9/12/03), 853 So.2d 1141. In that ease, this court reversed the trial court’s judgment, finding there is no coverage under the policies at issue because Norfolk did not pay the sums it sought to recover “as damages.” Rather, the payments were made pursuant to a private cost-sharing agreement. Because we have found no coverage under the facts of this case, the issues raised in this appeal dealing with allocation/exhaustion are rendered moot.

For these reasons, the judgment of the trial court rendered on May 15, 2002, is hereby reversed as being moot. Costs of this appeal are assessed to Norfolk.

REVERSED AS MOOT.

      . In its original and amending petitions, Norfolk named numerous non-London market insurance companies as defendants in addition to the London Insurers. At the time of trial, however, the London Insurers were the only defendants remaining in the lawsuit.

      . Both entities are named plaintiffs and wholly-owned subsidiaries of plaintiff, Norfolk Southern Corporation. For purposes of this appeal, we will refer to the plaintiffs collectively as Norfolk regardless of the specific entity involved.

      . In. 1972, Norfolk sold the equipment on the 33-acre tract to SWPC but retained ownership of the underlying land. SWPC had leased the 17-acre tract from a third party from 1942 to 1962, when Norfolk purchased the tract and leased it back to SWPC. The smaller tract was used primarily as a pole storage yard by SWPC.

      . In 1991, Norfolk notified the London Insurers of the cleanup operations. At that time, SWPC had been named as a defendant in a toxic tort and CERCLA suit by a third party regarding this contamination, but Norfolk had not. There is no evidence that Norfolk was ever named in that lawsuit, and no evidence of the result of the suit against SWPC has been filed of record. There is also no evidence in the record that Norfolk was required to take any action regarding those claims.

      . Norfolk's operation of the facility ceased in 1939. American Lumber and Treating Company operated the plant between 1939 and 1942; however, this company was not involved in the cost-sharing agreement.

      . Norfolk did share in the costs of removing penta to the extent that the removal or remediation of creosote would simultaneously cause the removal or remediation of penta at no extra cost to Norfolk.


text:
    NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Company, Norfolk and Western Railway Company, the Alabama Great Southern Railroad Company, Southern Region Industrial Realty, Inc., Central of Georgia Railroad Company, and the Cincinnati, New Orleans and Pacific Railway Company v. CALIFORNIA UNION INSURANCE COMPANY and Certain Underwriting Members Of Lloyd’s, et al.
    No. 2002 CA 2702.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.
    Writ Denied Dec. 19, 2003.
    Benjamin Slater, Jr., Cory R. Cahn, Benjamin R. Slater, III, New Orleans, Carmack M. Blackmon, Baton Rouge, for Appellees Plaintiffs Norfolk Southern Corporation, et al.
    Jane J. Barney, Michael D. Hunt, Freddie Pitcher, Jr., Baton Rouge, Richard N. Dicharry, New Orleans, for Appellant Defendant Certain Underwriters at Lloyd’s London subscribing to certain Policies of Insurance issued to Plaintiff.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   J^FOIL, J.

This is an appeal by the defendants, Certain London Market Companies (the London Insurers), from a judgment in favor of the plaintiffs, Norfolk Southern Corporation, Norfolk Southern Railway Company, Norfolk and Western Railway Company, The Alabama Great Southern Railroad Company, Southern Region Industrial Realty, Inc., Central of Georgia Railroad Company, and The Cincinnati, New Orleans and Texas Pacific Railway Company (collectively Norfolk). This judgment was rendered on June 5, 2002, and concerns the issues of enforcing two prior judgments of the trial court: 1) the judgment rendered on October 2, 2000, finding coverage under certain excess comprehensive general liability insurance policies subscribed to by the London Insurers from 1969 to 1986; and 2) the judgment rendered May 15, 2002, regarding allocation/exhaustion. Based on this court’s reversal of the trial court’s finding of coverage in Norfolk Southern Corp. v. California Union Ins. Co., 02-0370 (La.App. 1 Cir. 9/12/03), 853 So.2d 1141 (the coverage appeal), the appeal from the allocation/exhaustion judgment (Docket No. 2002CA2697, 859 So.2d 209, 2003 WL 22220308, also decided this date), was rendered moot and thereby reversed. Likewise, this appeal has been rendered moot and is hereby reversed.

As set forth in the coverage appeal, the background of this case is as follows. Norfolk filed this suit for declaratory judgment and for damages against the London Insurers seeking reimbursement for costs expended by Norfolk in remediating various environmental sites located throughout the United States, including the one at issue in this appeal. The Southern Wood Piedmont site (the site) consists of a 33-acre tract and a nearby 17-acre tract located in Macon, Georgia. Central of Georgia Railway Company has Downed the 33-acre tract since the early 1900s, and Southern Region Industrial Realty has owned the 17-acre tract since 1962.

In 1913, Norfolk constructed a wood treating facility on the 33-acre tract in order to treat railroad ties for use in the construction of its tracks. Norfolk operated this facility from 1913 until approximately 1939. American Lumber and Treating Company then operated the facility from 1939 through 1942, after which Norfolk leased the plant to Southern Wood Preserving Company. This company and its successor entity, Southern Wood Piedmont Company (collectively SWPC), continued to operate the facility pursuant to a lease with Norfolk until SWPC shut down the facility at the end of February 1986. By the time the facility was closed in 1986, the site had been used as a wood treating facility for approximately 72 years. Consistent with this usage, the site was contaminated with wood-preserving chemicals such as coal tar creosote and pentaehloro-phenol in diesel oil (penta).

Pursuant to its lease agreements with Norfolk, SWPC was required to surrender possession of the site to Norfolk at the end of the lease “in as good condition as [the site] may have been in prior to the use and occupation thereof by [SWPC].” Furthermore, SWPC was required to comply with all federal, state, and municipal laws and regulations and to indemnify Norfolk for damages resulting from its failure to do so. SWPC also assumed all responsibility for the disposal of its industrial wastes and agreed not to permit any such wastes to enter any stream on the leased property or to enter the sewage disposal system. Finally, SWPC was bound to hold Norfolk harmless in connection with the disposal of its industrial wastes with regard |4to the claims of any tenant, adjacent tenant, landowner, or any other person. The leases did not, however, hold SWPC responsible for contamination caused prior to its use of the property.

In February 1986, representatives of Norfolk and SWPC met to discuss cleanup of the site and what contributions, if any, Norfolk should be required to provide to the cleanup efforts. No state or federal entity had mandated the remediation. Moreover, no third party had filed a lawsuit against Norfolk regarding any contamination originating from the site.

After negotiations, Norfolk and SWPC tentatively agreed to a private cost-sharing plan based upon the years each had operated the site as a wood-preserving facility. Pursuant to their letter agreement, SWPC was responsible for 43 of the 72 years the plant was in operation (1943-1986) or 60% of the costs, and Norfolk was responsible for 29 of the 72 years (1913-1942) or 40% of the costs. In addition, SWPC agreed to assume all responsibility for the cleanup of penta at the site because Norfolk had only used creosote during its operation of the facility. Moreover, SWPC assumed full responsibility for the cleanup of the 17-acre tract that Norfolk had not used while operating the facility.

Cleanup operations began on the site in August 1986 and were ongoing at the time of trial. SWPC supervised and paid for the costs associated with the cleanup, and Norfolk reimbursed SWPC periodically for 40% of the costs in accordance with the agreement. Norfolk alleged that it |fihad incurred expenses totaling $5.1 million in accordance with the cost-sharing plan and sought to recover these costs from the London Insurers.

The London Insurers provided insurance coverage to Norfolk pursuant to various policies in effect from 1969 to 1986. The issue of coverage regarding the site proceeded to jury trial in September 2000. The jury ultimately returned a verdict finding that $3 million of Norfolk’s expenses were covered under the insurance policies. A judgment in accordance with this verdict was signed on October 2, 2000. The London Insurers filed a suspensive appeal from that coverage judgment, which was addressed in Norfolk Southern Corp. v. California Union Ins. Co., 02-0370 (La.App. 1 Cir. 9/12/03), 853 So.2d 1141. In that case, this court reversed the trial court’s judgment, finding there is no coverage under the policies at issue because Norfolk did not pay the sums it sought to recover “as damages.” Rather, the payments were made pursuant to a private cost-sharing agreement. Because we have found no coverage under the facts of this case, the issues raised in this appeal dealing with enforcement of the prior coverage judgment and the subsequent allocation/exhaustion judgment are rendered moot.

For these reasons, the judgment of the trial court rendered on June 5, 2002, is hereby reversed as being moot. Costs of this appeal are assessed to Norfolk.

REVERSED AS MOOT.

      . In its original and amending petitions, Norfolk named numerous non-London market insurance companies as defendants in addition to the London Insurers. At the time of trial, however, the London Insurers were the only defendants remaining in the lawsuit.

      . Both entities are named plaintiffs and wholly-owned subsidiaries of plaintiff, Norfolk Southern Corporation. For purposes of this appeal, we will refer to the plaintiffs collectively as Norfolk regardless of the specific entity involved.

      .In 1972, Norfolk sold the equipment on the 33-acre tract to SWPC but retained ownership of the underlying land. SWPC had leased the 17-acre tract from a third party from 1942 to 1962, when Norfolk purchased the tract and leased it back to SWPC. The smaller tract was used primarily as-a pole storage yard by SWPC.

      .In 1991, Norfolk notified the London Insurers of the cleanup operations. At that time, SWPC had been named as a defendant in a toxic tort and CERCLA suit by a third party regarding this contamination, but Norfolk had not. There is no evidence that Norfolk was ever named in that lawsuit, and no evidence of the result of the suit against SWPC has been filed of record. There is also no evidence in the record that Norfolk was required to take any action regarding those claims.

      . Norfolk’s operation of the facility ceased in 1939. American Lumber and Treating Company operated the plant between 1939 and 1942; however, this company was not involved in the cost-sharing agreement.

      . Norfolk did share in the costs of removing penta to the extent that the removal or remediation of creosote would simultaneously cause the removal or remediation of penta at no extra cost to Norfolk.


author: h BROWN, c.J.

text:
    STATE of Louisiana, Appellee, v. Edgar FULLER, Jr., Appellant.
    No. 37,626-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 16, 2003.
    Carey J. Ellis, III, Rayville, for Appellant, Louisiana Appellate Project.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, Donna F. Hall, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and TRAYLOR (pro tempore), JJ.
   h BROWN, c.J.

The state originally charged defendant, Edgar Fuller, Jr., with aggravated battery, then upgraded the charge to attempted second degree murder, then finally, on the day of trial, reduced the charge to aggravated second degree battery, a violation of La. R.S. 14:34.7 punishable by imprisonment for not less than ten nor more than 15 years, a fine of not more than $10,000 or both. Defendant pled guilty as charged and subsequently pled guilty to being a second felony offender. The court sentenced defendant to 20 years at hard labor without benefit of probation, parole or suspension of sentence and directed that the sentence be served consecutively with any other sentence defendant was required to serve.

On appeal, after the denial of his timely motion for reconsideration, defendant asserts that his sentence is excessive and that the court erred in ordering it to be served consecutively. For the reasons set forth below, we affirm defendant’s conviction, correct the sentence by deleting the portion which provided that the sentence be served without benefit of parole and affirm the sentence as corrected.

Background Facts

The record shows that on November 23, 2000, defendant argued with his estranged wife in a bedroom at her Shreveport residence after she refused to have sex with him. Defendant stabbed his wife in the face | ¿multiple times with a three-inch knife. He also stabbed the back of her head and neck and slashed both of her hands. Mrs. Fuller unlocked the door and tried to run, but defendant caught her, dragged her into the bathroom, threw her into the bathtub and turned on the water in what she perceived to be an attempt to drown her.

Defendant has not appealed his conviction, just his sentence.

Discussion

Whether the sentence imposed is excessive depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

Prior to imposing sentence, the trial court allowed defendant to make personal remarks and expressions of remorse for his actions on the record. Defendant then, through counsel, and in person, informed the judge that he did not want to have a formal sentencing hearing. The court considered a letter from the victim, Mrs. Fuller. The court was also aware of defendant’s criminal history, his age (47), and that he had attended college for several years. The court noted that this was a serious offense which involved |s“heinous circumstances and brutal cutting and stabbing” which caused permanent scarring and emotional damage to the victim.

On this record, we do not find constitutional error. Defendant received leniency from the state through its agreement to reduce the charge to aggravated second degree battery. The facts of this case would have supported a conviction of attempted second degree murder.

Nor do we find error in the court’s order that this sentence be served consecutively with the balance of defendant’s federal sentence.

It is within the trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/01/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App.2d Cir.04/05/00), 756 So.2d 1218, writ denied, 00-1572 (La.03/23/01), 787 So.2d 1010; State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), twit denied, 521 So.2d 1168 (La.1988).

Defendant’s argument relies on State v. Griffin, 525 So.2d 705 (La.App. 1st Cir. 1988), in which the court held that the penalty provision for possession of a firearm by a convicted felon is not subject to enhancement as generally provided for under La. R.S. 15:529.1 because the possession statute itself takes into account the facts of defendant’s previous felony conviction. This is not the situation presented in the case sub judice. The offense of conviction, aggravated second degree battery, does not have a prior conviction as an element and is thus easily distinguishable. The circumstances of this case clearly support the order that the sentences be Lserved consecutively. Defendant committed this crime after being released by the federal authorities.

On error patent review we note that sentences imposed under La. R.S. 15:529.1 “shall be served without benefit of probation or suspension of sentence.” This does not preclude benefit of parole consideration, nor does the statute of conviction contain such a prohibition. Thus, that portion of the sentence providing that it shall be served without benefit of parole is not legally correct and must be set aside. La.C.Cr.P. art. 882.

Defendant’s sentence, as amended, is lawful. Considering defendant’s record and the totality of facts and circumstances of this case, including that the argument began when the victim refused defendant’s demand for sex, the sentence imposed is neither grossly disproportionate to the severity of the offense of conviction, nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence.

Conclusion

For the reasons set forth above, defendant’s conviction is affirmed. That portion of the sentence providing that it is to be served without benefit of parole is vacated. Defendant’s sentence as amended is affirmed.

      . Defendant had a federal conviction for distribution of narcotics in October 1990 and had been sentenced to a term of 12 years and 7 months, to be followed by five years of supervised release. He was still under federal supervision when the instant offense was committed.

      . Defendant and the victim had not lived together for more than 12 years when the instant attack occurred, defendant having been in federal prison on a distribution of cocaine conviction.


author: h DREW, J.

text:
    Princess MARTIN, Individually and on Behalf of the Estate of Isaiah Martin, Carrie N. Martin, Calvin Martin, Marilyn Baldwin, Sharlyn Taylor, Kenneth Martin, Janet Martin, Murriel Jackson, Johnny Martin, Larry Martin, Michael Martin, and Terry W. Martin, Plaintiffs-Appellants, v. COMM-CARE CORPORATION d/b/a Community Care Center of Ruston, Defendant-Appellee.
    No. 37,600-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 16, 2003.

      Adams & Johnston, P.C., by Robert M. Johnston, New Orleans, for Appellants.
    Fleming & Associates, L.L.P., by C. Sean Jez, Christovieh & Kearney, L.L.P., by James A. Holmes, New Orleans, for Appellee.
    Before PEATROSS, DREW and MOORE, JJ.
   h DREW, J.

Princess Martin and her 11 adult children appeal the dismissal with prejudice (as prescribed) of their action for damages arising out of the death of Isaiah Martin, them husband and father. The Martin family contends that the dismissal defeats the policy underlying prescription and, further, that the doctrine of contra non va-lentem suspended prescription. The judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

Isaiah Martin was admitted to a nursing home, Comm-Care Corporation d/b/a Community Care Center of Ruston, on January 8, 1997. The Martins allege that Mr. Martin at that time was suffering from a Stage II decubitus ulcer and was unable to stand unassisted. The plaintiffs assert that, while at Comm-Care, Mr. Martin suffered from:

• numerous unexplained skin tears,
• inadequate medical care and worsening of the decubitus ulcers,
• a 31-pound weight loss,
• untreated and unmonitored fever over 101 degrees, and
• inadequate nutrition and hydration.

The Martins allege negligence and abuse on the part of the Comm-Care nursing home resulting in the death of Mr. Martin. The plaintiffs request damages for Mr. Martin’s wrongful death based upon La. C.C. art. 2315.2. The Martin family also requested recovery of the decedent’s own damages in a survival action pursuant to La. C.C. art. 2315.1.

LThe procedural history of the case as set forth in the record is as follows:

• 01-08-1997 Martin admitted to Comm-Care nursing home.
• 03-02-2000 Martin left Comm-Care nursing home and was admitted to the hospital.
• 05-04-2000 Martin died.
• 02-09-2001 Martins’ petition was filed against Comm-Care.
• 06-27-2001 Lawsuit was served on Comm-Care.
• 07-02-2001 Motion for Extension of Time in which to plead was filed by Comm-Care.
• 08-13-2001 Comm-Care files Exception of Prematurity to the Martins’ suit, declaring that Comm-Care is enrolled in the Louisiana Compensation Fund and thus is entitled to review before a Medical Review Panel prior to the claim being heard by the District Court.
• 11-20-2001 Martins file request for medical review panel with the Louisiana Division of Administration/Patient Compensation’s Fund.
• 02-14-2002 Martins’ suit is dismissed without prejudice.
• 06-24-2002 Comm-Care files Exception of Prescription to the Martins’ Request for Medical Review.
• 09-09-2002 Oral arguments on prescription issue heard by district court.
• 09-19-2002 Written Reasons for Ruling, sustaining the Exception of Prescription was signed and filed by the trial court.
• 11-25-2002 Petition for Devolutive Appeal was filed.
• 11-26-2002 Order Granting Devolutive Appeal and Notice of Appeal was filed.
• 01-13-2003 Judgment sustaining Comm-Care’s Exception of Prescription and dismissing the Martins’ action with prejudice was signed by the trial court.
• 01-15-2003 Judgment was filed.

^DISCUSSION

The sole issue before this court is whether the trial court erred in granting the exception of prescription and dismissing the action with prejudice. The wrongful death action filed in district court within one year of Mr. Martin’s death was dismissed as premature, and plaintiffs’ request for a medical review panel was filed more than one year after the date of death. The burden of proving that a suit has prescribed rests with the party pleading prescription. However, when the plaintiffs’ petition, on its face, shows that the prescriptive period has expired, the burden shifts to the plaintiffs to demonstrate suspension or interruption of the prescriptive period. Wilkes v. Carroll, 30,-066 (La.App.2d Cir.12/10/97), 704 So.2d 938; Cruse v. Louisiana State University Medical Center, 34,779 (La.App.2d Cir.6/20/01), 792 So.2d 798. The Martins’ action is prescribed on its face. Mr. Martin died on May 4, 2000, and the Martins’ request for a medical review panel was not filed until November 20, 2001.

The Louisiana Medical Malpractice Act requires all medical malpractice actions against a qualified healthcare provider to be submitted to a Medical Review Panel prior to filing the suit in a state district court. La. R.S. 40:1299.47(B)(l)(a)(i). La. R.S. 40:1299.42 sets forth the requirements for a health care provider to be covered by the Medical Malpractice Act. Comm-Care was a qualified health care provider within the terms of the Act on May 4, 2000, and thereafter.

La. R.S. 9:5628(A) provides, in part:

No action for damages for injury or death against any physician, chiropractor, ... dentist, psychologist, ... hospital ... |4duly licensed under the laws of this state, ... as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of ... discovery of the alleged act, omission or neglect....

Plaintiffs rely upon Renfroe v. State ex rel. Dep’t of Transp. & Dev. 2001-1646 (La.2/26/02), 809 So.2d 947, which states that the “purpose of a prescription statute is to afford a defendant economic and psychological security” against untimely filed lawsuits and “to protect the defendant from stale claims and the loss of relevant proof.” The plaintiffs contend that they should not be penalized for a non-prejudicial pleading error and that the defendant had actual knowledge of their claim.

The Martins also argue that the doctrine of contra non valentem should apply as they were misled by defendant Comm-Care into believing that the prescription issue would be waived if they agreed to dismiss their suit as premature without benefit of argument and that they would be allowed to re-file pending a decision by the medical review panel. Plaintiffs cite Matherne v. State Farm Mut. Auto. Ins., 599 So.2d 816 (La.App. 1st Cir.1992), writ denied, 600 So.2d 648 (La.1992), for the proposition that prescription should not toll against innocent plaintiffs who were lulled into a course of inaction in the enforcement of their right by reason of some concealment or fraudulent conduct on the part of the defendant, or because of his failure to perform some legal duty which kept plaintiffs in ignorance of their rights.

In support of this contention, plaintiffs point out the defendant’s actual knowledge of the impending claim. Prior to the death of Mr. Martin, the |Kparties had engaged the services of a Texas attorney in April of 2000, suspecting that the decedent had suffered from abuse and neglect on the part of the nursing home. Following the death of Mr. Martin, the plaintiffs requested medical records from the facility. Suit was filed in February of 2001, within the prescriptive period, and discussions were held between the parties. Plaintiffs claim that Comm-Care had actual notice of the legal proceedings and that they took affirmative steps to preserve relevant evidence by opening discovery and noticing depositions.

Defendant, however, claims that there was no agreement to waive prescription and that it was under no duty to inform plaintiffs that it was a qualified health care provider under the Act prior to the filing of the suit. Defendant points out that it was not actually served with the suit until after the prescriptive period had run and that defendant notified plaintiffs at that time that Comm-Care was a qualified health care provider. Both parties argue in brief the content of their telephone conversations and discussions with regard to these issues. However, the court is unable to place any weight or credence on these arguments as nothing is contained within the record to support an agreement or the lack thereof.

It is well-settled that an appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence The record on appeal includes the pleadings, court minutes, transcript, judgments and other rulings, unless otherwise designated. La. C.C.P. art. 2128. An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164. Memoranda and exhibits which were not filed into evidence in the trial court | fiare not part of the record on appeal. If a party’s brief asserts facts which are not in the record and refers to exhibits which have not been filed into evidence in the trial record, an appellate court may not consider those memoranda and exhibits, since they are outside the record. The briefs of the parties and the attachments thereto are not part of the record on appeal. Appellate briefs are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits, if those facts are not in the record on appeal. Reed v. Peoples State Bank of Many, 36,531 (La.App.2d Cir. 3/05/03), 839 So.2d 955. This appellate record contains no exhibits and neither the minutes of the prescription hearing nor the transcript thereof indicates that any evidence was filed.

In Lebreton v. Rabito, 1997-2221 (La.7/8/98), 714 So.2d 1226, the Louisiana Supreme Court explained that prescription in medical malpractice actions is governed by the Medical Malpractice Act.

Actions for medical malpractice against certain health care providers, such as the defendants herein, are governed by special laws, ... which delineate the liberative prescription applicable to actions for medical malpractice under Title 40. It specifically provides, inter alia, that the filing of a medical malpractice claim with the board only suspends the time within which suit must be instituted in a district court.

LeBreton at pp. 1229-1230.

LeBreton died on August 20, 1991. Plaintiff filed suit on August 18, 1992, and filed a request for a medical review panel on August 19, 1992. On July 20, 1993, the district court dismissed without prejudice the lawsuit as premature. On August 12, 1996, the LeBreton medical review panel issued its opinion. On February 3, 1997, plaintiff filed her wrongful death action which 17was dismissed as prescribed. The LeBreton opinion dealt with the 90-day suspension of prescription provided after the medical review panel issues its opinion, during which time plaintiff must file the lawsuit. La. R.S. 40:1299.47(A)(2)(a).

The Martins’ circumstances were addressed in Washington v. Fustok, 2001-1601 (La.9/21/01), 797 So.2d 56. The supreme court specifically held that plaintiffs premature suit in district court did not interrupt prescription and that the plaintiffs request for a medical review panel filed more than one year from the date of the alleged malpractice was untimely. Washington, supra. Filing a request for a medical review panel after one year from the date of the action has no effect because prescription cannot be suspended after it has run. Geiger v. St. of La. Dept. Health and Hosp., 2001-2206 (La.4/12/2002), 815 So.2d 80.

The Louisiana Medical Malpractice Act specifically sets forth guidelines and time limits. It is incumbent upon the attorney who files a medical malpractice claim in Louisiana to ascertain prior to filing the action, whether the provider is a qualified provider pursuant to the requirements of the Medical Malpractice Act.

Plaintiffs argue that their claim for wrongful death should be found viable because there is some confusion with regard to the prescriptive period of such a claim. In Taylor v. Giddens, 618 So.2d 834 (La.1993), the supreme court stated that the wrongful death action is not a malpractice action and is not controlled by the prescriptive period found in the Medical Malpractice Act. The Taylor Court simply addressed the wording of La. R.S. 9:5628, which lsmight suggest that a wrongful death claim based upon medical malpractice prescribes prior to the death of the decedent. The wrongful death action prescribes one year from the death of the deceased. La. C.C. art. 2315.2(B). This argument is also without merit.

With regard to the survival action, La. R.S. 9:5628(A) provides that the action shall be brought within one year of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission or neglect. The appropriate inquiry is whether the plaintiff had “sufficient information to incite curiosity, to excite attention, or to put a reasonably minded person on guard and call for inquiry.” LaGrange v. Schumpert Medical Center, 33,541 (La.App.2d Cir.6/21/00), 765 So.2d 473. The Martins’ pleadings establish they were aware of problems and had sufficient information at or shortly after the decedent was removed from Comm-Care nursing home. Prescription began to toll on the date of Mr. Martin’s death, May 4, 2000. A timely request for review by a Medical Review Panel of the actions of the defendant, a qualified provider under the terms and conditions of the Medical Malpractice Act, was not made.

The Martins also rely upon La. C.C.P. art. 3462, which directs that prescription is interrupted when a party files the action in a court of incompetent jurisdiction or improper venue when the defendant is served within the prescriptive period. The plaintiffs urge that the trial court’s action penalizes them for a non-prejudicial pleading error; i.e., filing the premature suit in district court before requesting the medical review panel. Plaintiffs’ argument fails. Here, Comm-Care was not served until June 27, 2001, after the | ^prescriptive period had expired on May 4, 2001. Moreover, the jurisprudence noted above makes it clear that prescription in medical malpractice claims is governed by the Medical Malpractice Act.

In its reasons for judgment, the trial court found that the record did not support plaintiffs’ claims concerning prescription. Our review reveals that the trial court correctly determined that the Martins’ action had prescribed and dismissed the action with prejudice.

DECREE

The judgment of the trial court, which sustained the exception of prescription and dismissed the action with prejudice, is AFFIRMED. All costs are assessed to plaintiffs.

      . In order to mitigate occasional harshness of the operation of the prescription statute, our courts have implemented the jurisprudential principle of contra non valentem. This principle rests on the equitable notion that no one is required to exercise a right when it is impossible for him or her to do so. Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992).


author: | t STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Willie CAMPBELL, Jr., Appellant.
    No. 37,485-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 16, 2003.
    Bobby R. Manning, for Appellant.
    Jerry L. Jones, for District Attorney Appellee.
    Geary S. Aycock, for Assistant District Attorney.
    Before WILLIAMS, STEWART and MOORE, JJ.
   | t STEWART, J.

The state appeals the trial court’s grant of a motion to quash a third habitual offender bill of information which the state filed in a DWI (third offense) case against Willie Campbell (“Campbell”). For the reasons that follow, we affirm the trial court.

FACTS

The state charged Campbell with a DWI (third offense) for an incident that occurred in March 2002. He had prior DWI convictions entered in March 1993 and July 1996. He was found guilty as charged after a bench trial. The state filed a third habitual offender bill which alleged prior convictions in December 1990 for attempted unauthorized entry of an inhabited dwelling and in July 1996 for simple burglary. Campbell moved to quash. The court granted the motion to quash and, after the state’s objection, imposed sentence in accord with the DWI statute, La. R.S. 14:98. This appeal ensued.

DISCUSSION

The question presented is whether the state can circumvent the penalty provisions of La. R.S. 14:98 for repeat DWI offenders by invoking the habitual offender provisions of La. R.S. 15:529.1, which generally apply to all repeat felony offenders.

The state contends that it is seeking enhancement of the penalties for the underlying predicate felony offenses rather than for the third DWI conviction. The state admits it is attempting to avoid the requirement of La. R.S. 14:98 that repeat DWI offenders are to be placed on probation for the majority of the sentence imposed.

| ¡.Campbell argues that La. R.S. 14:98D(l)(a) provides in pertinent part that the sentence shall be imposed [with probation] as provided in that statute “not withstanding any other provisions of the law to the contrary.”

Penal statutes are to be strictly construed; they are to be given a genuine construction according to the fair import of their words, taken in their usual sense, in context, and with reference to the purpose of the provision. State in Interest of J.A.V., 558 So.2d 214 (La.1990); State v. Union Tank Car Co., 439 So.2d 377, 382 (La.1983); State v. Blackwell, 32,477 (La.App.2d Cir.10/27/99), 746 So.2d 205, 212.

We must examine the legislative intent of La. R.S. 14:98. The intent is that “notwithstanding any other provision of law .... ” taken in the usual sense, in context, and with reference to the legislature’s purpose to provide treatment instead of jail time to repeat drunk drivers means that the habitual offender statute, which is “any other provision of law,” cannot be applied. That language is an express legislative prohibition which circumscribes the district attorney’s discretion to seek enhancement under the habitual offender statute. Thus, the legislature has precluded the state from seeking enhancement under the habitual offender statute in cases involving repeat DWI offenders.

Moreover, the state erroneously seeks to enhance a penalty for a prior offense under the habitual offender statute. The jurisprudence holds that the La. R.S. 15:529.1 enhancement of a penalty for a new felony is for a new crime only. State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 129, reh’g denied; State v. Morgan, 96-588 (La.App. 5 Cir. 12/30/96), 686 So.2d 1048, 1050; State v. Dean, 94-1505 (La.App. 4 Cir. 9/15/94), 643 So.2d 210, 211, writ denied, 94-2554 (La.1/27/95), 649 So.2d 380. Thus, the state’s argument is without merit.

CONCLUSION

We find no error in the trial court’s grant of the defendant’s motion to quash. Its judgment dismissing the habitual offender bill of information is affirmed. Costs to appellant.

AFFIRMED.


author: JjPEATROSS, J.

text:
    Exvina NELOMS, Plaintiff-Appellee, v. EMPIRE FIRE & MARINE INSURANCE COMPANY, North Caddo Hospital Service District and Kristie G. McMullan, Defendants-Appellants.
    No. 37,786-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 16, 2003.

      Mayer, Smith & Roberts, L.L.P. by David F. Butterfield, Shreveport, for Appellants.
    Norman R. Gordon & Assoc., L.L.C. by W. Brett Cain, Shreveport, for Appellee, Exvina Neloms.
    Hubley, Marcotte & Rhodes by Craig 0. Mareotte, Shreveport, for Appellee, Louisiana Farm Bureau Mutual Insurance Co. and Exvina Neloms.
    Before WILLIAMS, CARAWAY & PEATROSS, JJ.
   JjPEATROSS, J.

This appeal arises from a trial court judgment in favor of Plaintiff, Exvina Nel-oms (“Neloms”), and against Defendants, Empire Fire and Marine Insurance Company (“Empire Fire”), North Caddo Hospital Service District (“North Caddo”) and Kristie G. McMullan (“McMullan”) (collectively “Defendants”). Defendants now appeal the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

On May 13, 1999, Neloms’ vehicle collided with an ambulance driven by McMullan at the intersection of Hearne Avenue and Greenwood Road in Shreveport, Louisiana. At the time of the accident, Neloms was heading west on Greenwood Road through a traffic light that was green in her favor. At the same time Neloms was driving into the intersection, McMullan was also driving her ambulance into the intersection against a red light, heading south on Hearne Avenue. McMullan was transporting a patient, a doctor, a paramedic and a passenger on an emergency run from Vivian, Louisiana, to LSU Medical Center in Shreveport. McMullan did not stop her ambulance before entering the intersection.

As the ambulance entered the intersection, it struck the passenger side of Nel-oms’ vehicle. The momentum of the vehicles and the force of the collision carried both vehicles onto the center island on the west side of Greenwood Road. Both Nel-oms and McMullan were injured and transported from the scene by ambulance for emergency treatment. |¡> McMullan injured her ankle and hit her head in the accident. Medical records reflect that Neloms was packaged in a “full spine” brace prior to transport.

Neloms was taken to LSU Medical Center with complaints of neck, hip and back pain. A doctor examined her and then released her. The next day Neloms began treatment with a chiropractor, Randall Lord (“Lord”). Medical records show that Lord diagnosed Neloms with lumbar and cervical strain/sprain with accompanying soft tissue damage, muscle spasm, edema and spinal joint dysfunction. Neloms saw Lord intermittently through July 19, 1999, at which time she was released at maximum medical improvement. Her bill for chiropractic treatment was $2,436 and she incurred $20.77 in records fees. She missed four days of work due to her injury; at five hours per day at $5.15 per hour she lost $103 in wages.

Neloms filed suit against North Caddo, its insurer, Empire Fire, and McMullan for property damage and personal injuries arising from the accident. North Caddo and Empire Fire filed a reconventional demand against Neloms and her liability insurer, Louisiana Farm Bureau Mutual Insurance Company (“Farm Bureau”), seeking payment for damage to the North Caddo vehicle. Farm Bureau filed a cross-claim against McMullan, Empire Fire and North Caddo for the $2,930.72 in medical payments it had paid Neloms under that portion of her auto policy. The parties tried the matter on the merits on August 22, 2002.

At trial, Neloms testified that she did not see any car on Hearne Avenue run the red light before she got to the intersection. She said that she|Hwas going approximately 20-25 miles per hour and that she did not hear a siren or see emergency lights prior to entering the intersection. Neloms testified that she did not recall any vehicles stopped at the green light on her side of the intersection when she was heading west through the intersection.

McMullen testified that she had the lights and “very loud” siren operating on the ambulance — “running hot” — because the patient being transported was in critical condition. She stated that, as she approached the intersection, there were several cars in the left and right lanes of travel and one car in the left turn lane. The cars were stopped because the traffic light was red. Protocol required that she pass other vehicles on the left, insofar as possible, so she drove the ambulance into the turn lane. McMullan said that she changed the tone of the siren on the ambulance to alert the stopped drivers of her presence. She testified that, when she did this, the driver who was stopped in the left turn lane in front of her went through the red light to get out of her way. McMullan also stated that the east and westbound traffic on Greenwood Road was stopped as well. She testified that she was “creeping” through the intersection at 3-5 miles per hour. As the ambulance entered the intersection, it struck the passenger side of Neloms’ vehicle.

The deposition of the responding officer, Shreveport Police Officer Glen Vincent, was introduced into evidence in lieu of his testimony. Officer Vincent said that the intersection was well lit. He did not write either driver a ticket, but he said that McMullan told him that she was stopped when the collision occurred and that Nel-oms’ vehicle hit her ambulance. McMullan testified that she did not remember telling the officer |4that she was stopped. It was Officer Vincent’s opinion that the ambulance driver failed to yield, noting that the ambulance suffered heavy damage to its front end and Neloms’ vehicle suffered heavy damage to the passenger side. None of the other passengers in the ambulance testified at trial.

Neloms testified that she had not driven her car since the accident. Instead, her husband, who is disabled and does not work, drove her to work and to the doctor in his car. She did not testify that she had to rent a car; indeed, she testified that she has been too scared or nervous to drive after the accident because “it just seemed that everybody was going to run over me.” Her husband confirmed this, saying that, since the accident, she was very “sensitive” when riding as a passenger with him.

Neloms did not testify as to the damage to the car, but several photos of the car taken after the accident were introduced into evidence. Three of the photos were taken in the daytime and clearly show the extent of the damage to the car. Both passenger side doors and the rear of the right front fender are badly crushed; except for a rear quarter window, no glass is visible in either of the side windows and the windshield is shattered on the right side. Three other photos of both vehicles taken at the scene of the accident are included in the record and the extensive damage to the passenger side of the car is visible in two of the photos. Over the objection of Defendants, the trial judge allowed into evidence on behalf of Neloms a copy of a “Kelley Blue Book Suggested Retail Report,” gathered from the internet website mmv.carpointmsn.com, stating that the retail value of Neloms’ vehicle, a 1982 Oldsmobile Delta 88 Royale four-door sedan, in |sexcellent condition with 99,000 miles and a V-6 engine, was $1,000. The repair estimate for the ambulance of $10,808.30 was introduced into evidence.

The trial judge took the matter under advisement and rendered verbal reasons for judgment, finding that McMullan was entirely at fault for the accident. Holding that Nelom’s vehicle was fully in the intersection when it was “broadsided” by the ambulance, the trial judge also found that “the ambulance may have had its emergency lights on but it did not have a siren on at the time of this collision.” The trial judge awarded Neloms all of her alleged special damages, including $1,000 for the damage to her car, $750 for the loss of use of her vehicle and $6,345 for general damages. Judgment was also rendered in favor of Farm Bureau and against Empire Fire and North Caddo in the amount of $2,930.72. The trial judge dismissed Defendants’ claims against Neloms and Farm Bureau. Defendants now appeal, raising the following assignments of error (verbatim):

1.Judge Collins was clearly wrong in apportioning 100% fault to Ms. McMullan, or, alternatively, that he was clearly wrong in not apportioning comparative fault to Ms. Nel-oms;
2. The trial court erred in awarding property damages based upon a hearsay report and with no supporting testimony; and,
3. The trial judge erred in awarding Ms. Neloms damages for loss of the use of her vehicle.

DISCUSSION

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless such finding is “clearly wrong;” and, where there is a conflict in the testimony, reasonable Revaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). If the trial court’s 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. Rosell, supra. In fact, “where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, supra.

Allocation of Fault

Defendants first urge that the trial court erred in allocating all of the fault for the accident to McMullan. La. C.C. art. 2323 provides, in part:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

In Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, the supreme court explained the appellate review of a fact finder’s allocation of fault:

|7The trier-of-fact is owed great deference in its allocation of fault. Even if the reviewing court would have decided the case differently had it been the original trier of fact, the trial court’s judgment should be affirmed unless manifestly erroneous or clearly wrong. Clement v. Frey, 95-1119 c/w 95-1163 (La.1/16/96), 666 So.2d 607. In determining percentages of fault, this Court has stated that the trier-of-fact must consider both the nature of the conduct of all parties and the extent of the causal relationship between the conduct and the damages claimed. We have outlined five factors that may influence the degree of fault assigned: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferi- or; and (5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985).

La. R.S. 32:24 provides:

A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
|RP. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

The supreme court has found that La. R.S. 32:24 contains two alternate standards of care imposed on the emergency vehicle driver, depending on the circumstances. Lenard v. Dilley, 01-1522 (La.1/15/02), 805 So.2d 175. If an emergency vehicle driver’s actions follow subsections A, B and C of La. R.S. 32:24, he or she can only be held Hable for actions which constitute reckless disregard for the safety of others, i.e., gross negligence. Id. If the emergency vehicle driver’s conduct did not follow subsections A, B and C of La. R.S. 32:24, such driver’s actions will be gauged by an ordinary standard of “due care.” Id. See also Pope v. Prunty, 37,395 (La.App.2d Cir.8/20/03), 852 So.2d 1213.

La. R.S. 32:125 provides, in part: A. Upon the immediate approach of an authorized emergency vehicle making use of audible or visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.

The duty to yield the right of way to an emergency vehicle arises only when a motorist observes or hears, or under the circumstances should have observed or heard, the audible and/or visual warnings of such a vehicle. Pope, supra. The burden of proving negligence of the non-yielding motorist rests on the party asserting the same. Id.

lain holding McMullan entirely responsible for the accident, the trial judge found that she was not using the vehicle’s siren at the time of the crash even though she “may” have been using the warning lights. The only two witnesses who testified about the use of emergency lights and sirens on the ambulance were Neloms and McMul-lan. There were four other individuals in the ambulance and none of them testified at trial as to the status of the ambulance siren. Moreover, the significant collision between the vehicles indicates that McMullan did not stop or slow down when she went through the intersection and she had to have been travefing at a much greater speed than the 3-5 miles per hour to which she testified. La. R.S. 32:24(C) requires an emergency vehicle driver to use lights and/or sirens “sufficient to warn motorists of their approach” and the trial judge apparently concluded that the use of warning lights alone was insufficient. McMullan’s actions did not follow La. R.S. 32:24; and, thus, her actions are gauged by an ordinary standard of due care.

Neloms said that her view of the north side of the intersection was partially blocked by the hospital and its parking lot until she was “at the intersection.” Since Neloms’ light was green and she was proceeding at a normal speed, the ambulance’s use of the siren would have been very important to warn Neloms of the emergency vehicle’s approach. After hearing the contradictory testimony of Neloms and McMullan, the trial judge found Neloms to be the more credible witness. Given the trial court’s decision to credit Neloms’ testimony that she did not hear a siren and that nothing would have prevented her from hearing the siren, we hold, after previewing the record in its entirety, that the trial court was reasonable in finding that the ambulance driver’s use of warning signals was not sufficient. McMullan breached her duty of care by not adequately warning Neloms that her ambulance was approaching the intersection.

Since the ambulance driver was not in compHance with La. R.S. 32:24(A), (B) and (C) at the time of the accident, and because we find no error in the trial court’s evident conclusion that Neloms did not breach her duty to see the ambulance, we will not disturb the trial court’s allocation of fault. Defendants’ assignment of error is without merit.

Special Damages — Value of Car

Appellants urge that the trial court erred in awarding Neloms $1,000 for the damage to her car and in basing its valuation of the damage on the Kelley Blue Book value she submitted. “Special damages” are those which either must be specially pled or have a ready market value, that is, the amount of the damages supposedly can be determined with relative certainty, such as the plaintiffs medical expenses incurred as a result of the tort. Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 01-2582 (La.12/14/01), 804 So.2d 647. The discretion afforded the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages. Moody, supra; Eddy v. Litton, 586 So.2d 670 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1203 (La.1992). Some special damages, such as medical and related expenses, cost to repair or replace damaged property, loss of wages, etc., are easily measured. Id.

In When a car has been damaged beyond repair as the result of an accident, the owner is entitled to the market value of the vehicle before the accident, less salvage value, if any. Smith v. English, 586 So.2d 583 (La.App. 2d Cir.1991), writ denied, 590 So.2d 80 (La.1991), citing Coleman v. Victor, 326 So.2d 344 (La.1976). Testimony by an owner of a car as to its value can be sufficient proof with which to sustain an award. Williams v. Louisiana Indemnity Company, 26,887 (La.App.2d Cir.6/21/95), 658 So.2d 739; Smith, supra.

In this case, the evidence of the value of and damage to Neloms’ vehicle consisted of a Kelley Blue Book valuation of the car in excellent condition for retail sale and the photos of the car after the accident. Although there was no testimony that the car was a total loss, the photos clearly show extensive damage to the passenger side of the vehicle consistent with the likelihood of total loss of this 1982 automobile. Further, we find no error in the court’s decision to assign at least some weight to the Kelley Blue Book valuation. La. C.E. art. 803(17) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

Publications like the Kelley Blue Book are widely used and relied upon by the public. In State v. Batiste, 99-1481 (La.App. 1st Cir.3/31/00), 764 So.2d 1038, writ denied, 00-1648 (La.6/22/01), 794 So.2d 778, the Lacourt held that the introduction of the NADA Blue Book into evidence to determine the value of a vehicle was perfectly acceptable and was not inadmissible hearsay according to the markets quotations provision of La. C.E. art. 803(17). The court specifically found that the supporting testimony of an expert appraiser did not have to accompany introduction of the NADA Blue Book into evidence. Defendants argue that there was no evidence to show that the vehicle was in excellent condition prior to the accident; however, taking into account that the trial court had photos of the car in addition to this report, we find no reversible error in the court’s decision to award Neloms $1,000 for her property damage. Defendants’ assignment of error has no merit.

Loss of Use

Appellants finally argue that the court erred in awarding Neloms $750 for the loss of use of her car. Damages for loss of use of a car which has been totaled are recoverable only for a reasonable time after the plaintiff learns that the car is a total loss. Williams, supra. This court has held that a reasonable time to replace the destroyed vehicle is a period of 30 days after discovery that the car is a total loss. Williams, supra, citing Bonner v. Louisiana Indemnity Co., 607 So.2d 915 (La.App. 2d Cir.1992), and Prothro v. Dillahunty, 488 So.2d 1163 (La.App. 2d Cir.1986). The measure of loss-of-use damages is normally the cost of renting a substitute vehicle until a replacement vehicle is purchased. This award, however, |13need not be restricted to rental. Williams, supra. The trial court is given a great deal of discretion to determine the damages awarded for loss of use of a vehicle. Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188 (La.1977). In Alexander, the supreme court found that the trial judge did not abuse his discretion when he awarded the plaintiff $1,000 for loss of use of his vehicle, which was stolen. The court held that there was no doubt that the plaintiff had suffered considerable inconvenience and mental anguish from the loss of use of his vehicle. Alexander, supra.

Although Neloms did not testify that she replaced her vehicle, she said that she had been too nervous to drive after the accident out of fear that she would be involved in another accident. The fact remains that Neloms was inconvenienced and deprived of the use of her car and had to be transported thereafter in her husband’s car. Neloms obviously suffered mental anguish in the loss of her car. We cannot say that the trial court abused its discretion in awarding $750 for this element of damages which, amortized over a 30-day period, amounts to $25 per day. Defendants’ assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendants, Empire Fire and Marine Insurance Company, North Caddo Hospital Service District and Kristie G. McMullen.

AFFIRMED.

      . McMullan has remarried since the time of the accident. Her current name is Kristie Churchill.

      . Greenwood Road runs east-west and Hearne Avenue runs north-south.

      . The NADA book is very similar to the Kelly Blue Book in that it lists the value of different cars for different years. NADA stands for the National Automobile Dealers Association.