author: IJTERRI F. LOVE, Judge.

text:
    Marion KENNY v. Kenneth HOSCHAR and Colonial Lloyds Insurance Company.
    No. 2002-CA-1169.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2002.
    Frank B. Hayne, III, New Orleans, LA, for Plaintiff/Appellant.
    André C. Gaudin, Jocelyn R. Guidry, Burglass & Tankersley, L.L.C., Metairie, LA, for Defendant/Appellee.
    Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.
   IJTERRI F. LOVE, Judge.

On appeal, plaintiff challenges the constitutionality of the retroactive application of the 1992 amendment of La. R.S. 22:1386 and more specifically its application to the instant case. For the reasons assigned below, we affirm the decision of the trial court dismissing plaintiffs claims.

FACTS AND PROCEDURAL HISTORY

The parties filed a joint stipulation of the facts giving rise to this action as follows:

An automobile accident took place on September 12, 1989, when a car being driven by plaintiff Marion Kenny (“Kenny”) was rear-ended by one owned and driven by Kenneth Hoschar (“Hoschar”), whose insurer was Colonial Lloyds Insurance Company (“Colonial”).
Suit was filed by Kenny against Hosc-har and Colonial, and after their answer, an amending petition was filed adding Hartford Insurance Company of the Midwest, the uninsured/underinsured carrier of Kenny, as a defendant.
Kenny then filed another supplemental petition reciting the declaration of insolvency of Colonial and adding Louisiana Insurance Guaranty Association (“LIGA”) as a defendant.
She settled under her $50,000 uninsured motorist coverage with Hartford for $34,000, and LIGA then moved for summary judgment .seeking to be dismissed.
This motion was granted but then reversed on appeal, leaving for disposition the claims of Kenny against LIGA, in its capacity as successor to the insurer of the adverse vehicle, Colonial.
Following this appeal, plaintiff supplemented her claims by filing an amended petition alleging the unconstitutionality of the 1992 amendment of La. R.S. 22:1386 being applied to her in this ^proceeding. The Attorney General, through Assistant Attorney General Tina Vicari Grant, has submitted correspondence declining that office’s privilege to be heard in their proceeding and counsel for plaintiff will submit this letter as an exhibit on behalf of his client.

The following dates are agreed to be accurate and governing:

Date of the accident: 9/12/89
Date of Colonial’s insolvency: 3/27/92
Date of Kenny’s settlement with her UM carrier, Hartford: 12/15/92

The parties also stipulated on the record that Kenny’s damages did not exceed $50,000 in value and in the event judgment was rendered in Kenny’s favor against LIGA, the amount would be limited to $9,900.

The trial court entered judgment in favor of LIGA and adopted the reasons cited in defendant’s trial memorandum. In defendant’s trial memorandum, LIGA argued that the Louisiana Supreme Court had previously decided that the 1992 amendment to La. R.S. 22:1386 could constitutionally be applied retroactively, and that this Court previously determined that the 1992 amendment was applicable in this case. Kenny’s claims against LIGA were dismissed with prejudice, which is the subject of this appeal.

LAW AND DISCUSSION

On appeal, Kenny contends the trial court erred by rendering judgment in favor of LIGA. Further, Kenny raises the following issues: 1) it is unconstitutional to give retroactive effect to the 1990 and 1992 amendments of La. R.S. 22:1386; 2) the date of the liability insurer’s declaration of insolvency controls when the amendment applies; 3) the 1992 amendment of La. R.S. 22:1386 application to the case at bar is unconstitutional; and 4) the legislature is constitutionally prohibited from giving retroactive effect to a substantive law.

14Constitutionality of the 1990 and 1992 amendments to La. R.S. 22:1386

Plaintiff challenges the constitutionality of the retroactive application of the 1990 and 1992 amendments to La. R.S. 22:1386 on the grounds that it is a substantive change to the law. This particular issue was not before this Court when our decision in Kenny v. Hoschar, 96-0112 (La.App. 4 Cir. 5/29/96), 675 So.2d 807, was rendered holding that the 1992 amendment to La. R.S. 22:1386 was applicable to the case at bar. We will briefly address this issue, even though it will not affect our previous holding in Kenny.

The Louisiana Supreme Court in Segura v. Frank decided the issue of whether the 1990 and 1992 amendments to La. R.S. 22:1386 can constitutionally be applied retroactively by examining a split among the appellate courts regarding two cases with facts similar to those in the case at bar. The court, in a well-reasoned and lengthy opinion, examined the constitutionality of the application of both amendments retroactively. The court’s holding has been reiterated and commented on in several other appellate decisions, and we will briefly summarize the holding.

The Supreme Court held that both amendments do make a substantive change to the existing law, however the 1992 amendment could be applied retroactively whereas the 1990 amendment could not. With respect to the 1990 | ¡¡¡amendment, the court held “[s]ince the legislature expressed no intent in Act 130 of 1990 that the amendment apply retroactively, under La. C.C. art. 6 the amendment applies prospectively only.” In examining the 1992 amendment, the court discussed the constitutionality of the retroactive effect of the amendment as well as the legislature’s power to enact laws that have retroactive effect. The court held:

Section 3 of Act 237 of 1992 provides: “This Act shall apply to covered claims, as defined in R.S. 22:1379, pending on or arising on or after the effective date of this Act” (emphasis added). Section 3 constitutes an expression of legislative intent regarding retroactive application of the statute as amended and reenacted by the 1992 Act. See La.C.C. art. 6; Cole [v. Celotex Corp.], 599 So.2d [1058] at 1063 [ (La. 5/28/92) ] . Accordingly, even though the 1992 amendment, like the 1990 amendment, is substantive, unlike the 1990 amendment it will apply retroactively to Rey’s and Segura’s claims if two requisites are met in each case: first, each claim must have been “pending” on June 10,1992, the effective date of Act 237 of 1992; second, retroactive application of the amendment must not violate the federal and state constitutional prohibitions against impairment of contractual obligations or disturbance of vested rights.

Segura, 93-1271, pp. 16-17, 630 So.2d at 726. The court further held:

... [T]he adjustment of the UM insurers’ rights and responsibilities is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption. Accordingly, under the appropriate Contract Clause standard, we conclude retroactive application of Act 237 of 1992 would violate neither the federal nor the state constitutional prohibitions against impairment of contractual obligations.

Id. at p. 28, 630 So.2d at 723.

In light of Segura, we find that the 1992 amendment to La. R.S. 22:1386 can constitutionally be applied retroactively in accordance with the decision.

Application of the 1992 Amendment

In Kenny, this Court previously addressed the issue of whether the 1992 amendment could be retroactively applied in the case sub judice. We found | (¡“Kenny’s petition was filed on November 2, 1989. She settled her claim against Hartford in December 1992 and dismissed Hartford in February 1993. Kenny’s claim was pending on the effective date of the 1992 amendment (June 10, 1992). Therefore Act 237 applies.” Kenny, 96-0112, p. 3, 675 So.2d at 809. A claim is pending as long as it is subject to judicial scrutiny. Segura, 93-1271, p. 19, 630 So.2d at 727. Our decision in Kenny is consistent with the application of the 1992 amendment by this Court in a previous decision as well as other appellate courts since the Supreme Court’s decision in Seg-ura. See Smith v. Ayo, 94-0791 (La.App. 4 Cir. 10/13/94), 644 So.2d 1069; Stagg v. Strauss, 94-670 (La.App. 3 Cir. 12/7/94), 647 So.2d 621; Saucier v. Favorite, 93-886 (La.App. 5 Cir. 2/23/94), 632 So.2d 11; Allen v. Colonial Lloyd’s Insurance Co., 93-804 (La.App. 5 Cir. 2/23/94), 632 So.2d 10; Gauthier v. Miller, 93-938 (La.App. 3 Cir. 3/2/94), 634 So.2d 1294.

However, Kenny contends that the facts in her case are similar to those in Habeney v. Bellow, 94-1600 (La.10/28/94), 645 So.2d 624, and thus the 1992 amendment should not be applied to her case. In Kenny, we previously distinguished Habeney from the facts in the case at bar. We stated:

In Habeney v. Bellow, 94-1600 (La.10/28/94), 645 So.2d 624 the tortfea-sor’s insurer was declared insolvent and LIGA replaced the insolvent insurer. A guest passenger in the other vehicle settled with the UM carrier in November 1991 and proceeded against LIGA. The Supreme Court held that because the claimant settled her claim against the UM insurer prior to the effective date of the 1992 amendment to La.R.S. 22:1386, that amendment did not apply:
If the 1992 amendment is applied retroactively in the case sub judice, the plaintiff will lose previously vested substantive rights. When the plaintiff settled her claim against the UM insurer, reserving her right to pursue a claim against LIGA, she based her decision upon the law as it existed at that time. The legislature then enacted the 1992 amendment, changing the law and thereby 17foreclosing plaintiffs right to proceed against LIGA under the insolvent insurer’s policy.
Habeney, 645 So.2d at 625.
We distinguish this case from Habeney because Kenny settled her claim against Hartford after the effective date of the 1992 amendment. Her decision was based on the law as it existed at that time, which required her to exhaust her rights against the UM insurer before proceeding against LIGA. Therefore Habeney does not apply.

Kenny, 96-0112, p. 4, 675 So.2d at 809. Therefore, we find that the 1992 amendment must be applied in this case in accordance with Segura and our reasoning in Kenny.

Assignment of Error

Kenny argues the trial court erred by finding in favor of LIGA and dismissing her suit. The trial court adopted the reasons given in defendant’s trial memorandum. In the trial memorandum, defendant argued that the issue of whether the 1990 and 1992 amendments to La. R.S. 22:1386 can constitutionally be applied retroactively has previously been decided by the Supreme Court in Segura. Defendant also argued that this Court has also previously addressed the issue of whether the 1992 amendment should be applied in this case.

In Stagg, 94-670, p. 2, 647 So.2d at 623, the appellate court affirmed the trial court’s dismissal of Stagg’s claims against LIGA because “[t]he Staggs failed to seek satisfaction for their entire claim from USF & G before proceeding against LIGA, despite stipulating that their total damages would not exceed the limits of the USF & G policy.” In Kenny, we found at that time that the decision in Stagg was not determinative because “Kenny did not stipulate that her damages do not exceed her UM policy limits.” Kenny, 96-0112, p. 10, 675 So.2d at 810. We held that

1 sLIGA’s entitlement to a credit for the amount payable by the other insurance prevents duplication of recovery while allowing the insured to be fully compensated. Where the insured settles with the other insurer for an amount under 'policy limits but damages exceed the policy limits, LIGA is entitled to a credit against the insured’s damages for the full amount of the other insurer’s policy limits. Thus, the insured may recover from LIGA only to the extent that the insured’s damages exceed the policy limits of the other insurance.

Id. at p. 6, 675 So.2d at 810 (Emphasis added).

Presently, Kenny stipulated that her damages did not exceed the $50,000 limit of her uninsured motorist insurance policy, and she had settled her claim under the insurance policy in the amount of $34,000. In the event that Kenny was successful in her claims against LIGA, the parties stipulated the amount of the judgment would be $9,900.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993), citing, Rosell v. ESCO, 549 So.2d 840 (La.1989). We find no error on the part of the trial court by finding in favor of the defendant. With the stipulation now in the record that Kenny’s damages did not exceed the policy limit, the trial court properly dismissed Kenny’s claim against LIGA because she did not exhaust her rights under the limits of her uninsured motorist insurance policy.

CONCLUSION

For the aforementioned reasons, we find that the retroactive application of the 1992 amendment to La. R.S. 22:1386 is constitutional and was properly applied in this case. We further find no error on the part of the trial court, and affirm its judgment in favor of the defendant.

AFFIRMED.

      . The legislature passed Act 130 of 1990, which amended La.R.S. 22:1386 to read as follows:
      § 1386. Nonduplication of recovery
      (1) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include hut shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, and other medical expense coverage. Any amounts payable by such other insurance shall act as a dollar-for-dollar credit against any liability of the association under this Part.

      . The legislature passed Act 237 of 1992 becoming effective on June 10, 1992, which amended La. R.S. 22:1386 by providing in Section 3 of the Act:
      This Act shall apply to all covered claims, as defined in R.S. 22:1379, pending on or arising on or after the effective date of this Act.


source: Caselaw Access Project

author: | ¶DENNIS R. BAGNERIS, SR., Judge.

license: Public Domain

text:
    John and Jane ROACH v. Burde L. KAMATH, Riverside Court Condominium Association Inc., ABC Insurance Company and XYZ Insurance Company.
    No. 2002-CA-1309.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2002.
    Writ Denied April 4, 2003.
    William A. Porteous, III, Porteous, Hainkel & Johnson, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Wayne R. Maldonado, Claudia P. San-toyo, Shannon M. Bruno, Ungarino & Ec-kert L.L.C., Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., and Judge TERRI F. LOVE).
   | ¶DENNIS R. BAGNERIS, SR., Judge.

Plaintiffs, John and Jane Roach (hereinafter “Plaintiffs”), appeal the trial court’s judgment, which granted a summary judgment in favor of defendant, Riverside Court Condominium Association, Inc. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 19, 2000, Plaintiffs brought the present suit for property damages against Burde L. Kamath, and the Riverside Court Condominium Association Inc., (hereinafter “the Riverside Association”). Specifically, the Plaintiffs’ petition alleges, in pertinent part:

3.
John and Jane Roach are the owners of the condominium bearing the address 6220 Ackel Street, Unit 488, Metairie, Louisiana 70008. The Roach’s condominium is located on the first floor of the complex.
4.
On information and belief, Mr. Burde L. Kamath is the owner of a condominium unit located on the second floor of the complex, immediately above the Roach’s unit and bearing the address 6220 Ackel Street, # 588, Metairie, Louisiana 70003.
The Riverside Court Condominium Association, Inc. is the condominium association whose rules and regulations govern the management of the Victorian Condominiums where the Roachs and Mr. Kamath own their condominiums.
8.
In approximately 1997, John and Jane Roach began to notice damage at unit # 488 caused by water coming from Defendant Kamath’s condominium unit located immediately above their unit.
10.
On numerous occasions thereafter, the Roachs approached Mr. Kamath regarding the water leaking from his unit into theirs and causing problems. On each of those occasions, Mr. Kamath advised that he would tend to the problem and remediate it.
11.
On numerous occasions, the Roachs approached the defendant Condominium Association through its agent, Garnet Gravert, the manager of the complex, and asked her about the water leaking. The defendant Condominium Association, through its agent Ms. Gravert, advised the Roachs that this was an issue between the owners, and that the Condominium Association would not get involved.
16.
On information and belief, the damage to the Roach’s condominium unit is being caused by the poor maintenance of the common plumbing serving the condominium complex by the defendant Condominium Association and poor maintenance by Defendant Kamath of his individual unit.
17.
As a result of the leaking from above, the Roach’s condominium # 488 has suffered extensive damages requiring repair and/or replacement of flooring carpet, sheetrock, ceilings, plumbing, and other appurtenances.

In response to these allegations, the Riverside Association filed an answer, which denied the Plaintiffs’ claims. The Riverside Association’s answer further averred that “the sole, or alternatively, a contributing proximate cause of the accident made the subject of this lawsuit was the negligence of plaintiffs for their | ^actions and/or inactions; failure of plaintiffs to mitigate their own damages; and the negligence of a third party.”

On September 26, 2001, the Riverside Association moved for summary judgment, alleging that: (1) Plaintiffs cannot factually support an essential element of their claim, namely that Riverside owned the property which allegedly caused their damages; (2) there is no genuine issue of material fact that Riverside relinquished all responsibility for interior repairs caused by common elements to the owners of the individual condominium units; and (3) there is no genuine issue of material fact regarding the fact that any claims for damages which occurred prior to September 22, 1999 or as a result of leaks which occurred prior to September 22, 1999, are prescribed. In support of this motion, the Riverside Association submitted, as exhibits, the following: (1) Plaintiffs’ petition for damages; (2) notice of limited liability dated June 6, 1995; (3) deposition excerpts of Jane Roach; (4) deposition excerpts of Daniel Roach; and (5) excerpts from the Riverside Association’s declaration.

Plaintiffs objected to the motion for summary judgment by filing a memorandum to the Riverside Association’s motion arguing that summary judgment is inappropriate because the Riverside Association has not submitted any evidence that would support a contention that it is not responsible for the repairs to the common plumbing elements. The attached exhibit included another copy of Plaintiffs’ petition for damages.

Following oral argument on the motion, the trial court rendered the judgment at issue on April 10, 2002, dismissing Plaintiffs’ suit with prejudice. Specifically, the judgment stated, in pertinent part, that the Riverside Association |4“is not responsible for the damages alleged by Plaintiffs].” No reasons for judgment were given. Plaintiffs now appeal this final judgment.

STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, his burden does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of | ¿factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law.

DISCUSSION

Plaintiffs’ sole issue on appeal is whether the Louisiana Condominium Act creates an absolute liability on the Riverside Association to repair Plaintiffs’ condominium regardless of the source or any fault. Specifically, Plaintiffs argue that La. R.S. 9:1128 G, which states that “[a]ny portion of the condominium damaged or destroyed shall be repaired or replaced promptly by the association ...” requires reversal of the trial court’s summary judgment.

The Louisiana Condominium Act, which consists of La. R.S. 9:1121.101 through 1124.115, defines condominium as “the property regime under which portions of immovable property are subject to individual ownership and the remainder thereof is owned in indivisión by such unit owners.” La. R.S. 9:1121.103(1). An association (i.e. the Riverside Association) is defined as “a corporation, or unincorporated association, owned by or composed of the unit owners and through which the unit owners manage and regulate the condominium.” La. R.S. 9:1121.103(8). Further, La. R.S. 9:1123.102 provides that the Riverside Association has the power to: “adopt and amend bylaws and rules and regulations;” “adopt and amend budgets for revenues, expenditures, and reserves and make and collect assessments for common expenses from unit owners;” “regulate the use, maintenance, repair, replacement, and modification of common elements;” “exercise any other powers conferred by the declaration or by laws;” Land “exercise any other powers necessary and proper for the governance and operation of the association.” See La. R.S. 9:1123.102.

The Louisiana Condominium Act also requires that “[pjroperty insurance of the common elements and units, exclusive of improvements and betterments installed in units by unit owners, insuring against all risks of direct 'physical loss commonly insured against” be maintained. La. R.S. 9:1123.112 A(l) (Emphasis added). La. R.S. 9:1123.112 G, which Plaintiffs rely upon in their argument that the Riverside Association is required to repair their condominium, provides:

Any portion of the condominium damaged or destroyed shall be repaired or replaced promptly by the association unless (1) the condominium is terminated, (2) repair or replacement would be illegal under any state or local health or safety statute or ordinance, or (3) eighty percent, or such other percentage provided in the declaration, of the unit owners vote not to rebuild. The cost of repair or replacement in excess of insurance proceeds and reserves is a common expense. If the entire condominium is not repaired or replaced, (1) the insurance proceeds attributable to the damaged common elements shall be used to restore the damaged area to a condition compatible with the remainder of the condominium, (2) the insurance proceeds attributable to units and limited common elements which are not rebuilt shall be distributed to the owners of those units and the owners of the units to which those limited common elements were assigned, and (3) the remainder of the proceeds shall be distributed to all the unit owners in proportion to their common element interest. If the unit owners vote not to rebuild any unit, that unit’s entire common element interest, votes in the association, and common expense liability are automatically reallocated upon the vote as if the unit had been condemned under Section 1121.107, and the association promptly shall prepare, execute, and record an amendment to the declaration reflecting the realloca-tions. Notwithstanding the provisions of this Subsection, Section 1122.120 governs the distribution of insurance proceeds if the condominium is terminated.

Conversely, the Riverside Association relies on La. R.S. 1123.107, which provides that “the association is responsible for maintenance, repair, and replacement of the common elements, and each unit owner is responsible for | ^maintenance, repair and replacement of his unit” to argue that it is not required to make interior repairs to units which have been damaged by common elements.

Plaintiffs cite to two state court decisions, Blackwell v. Hanover Ins. Co., 551 So.2d 47 (La.App. 1 Cir. 10/11/89) and Lussan v. State Farm Ins. Co., 95-180 (La.App. 5 Cir. 7/25/95), 659 So.2d 830, for the proposition that La. R.S. 9:1123.112 requires mandatory coverage for damages caused by common elements. However, as the Riverside Association correctly points out, the two cases cited by Plaintiffs involve a third party who slipped and fell on arguably “common” areas of a condominium building and an insurance company moved for summary judgment, which was denied by the state courts under La. R.S. 9:1123.12 and thus, the cases do not resolve the issue at hand of whether La. R.S. 9:1123.12 requires a condominium association to cover property damage to individual units.

To place this matter in proper perspective, we must address the Riverside Association’s declaration. The Riverside Association’s declaration provides, under Article XIII:

Except to the extent the Board provides (at its option and discretion) maintenance of the Units for Unit Owners, each Unit Owner, at his own expense shall furnish and be responsible for all maintenance of repairs to and replacements within his own Unit. Maintenance of, repairs to and replacements within the Common Elements shall be the responsibility of and shall be furnished by the Association. The cost of maintenance of, repairs to and replacements within the Units to the extent the Board elects to provide such services and within the Common Elements shall be part of the common expenses, subject to the By-Laws, rules, and regulations of the Association.

In May 1995, the condominium units were given the opportunity to vote on whether or not interior repairs for damage caused by common elements would be covered and furnished by the association. On June 6, 1995, the Riverside Association sent a notice to the homeowners informing them that it would no |slonger be making interior repairs to any unit. Specifically, the notice stated, in pertinent part:

On Thursday June 1st a Board of Directors meeting was held to address the outcome of the two issues that were put to a vote by the association and all votes were to be returned no later than May 24th. The outcome is as follows: As of July 1, 1995 there will be an assessment increase of 5% on all units, and as of July 1, 1995 there will be no more interior repairs (damage caused from common elements) to any unit.

After a close reading of the Louisiana Condominium Act, we find nothing in the Act that requires the Riverside Association to make interior repairs for damage caused by common elements. Accordingly, we find that the vote and subsequent notification that, as of July 1, 1995, the Riverside Association would no longer furnish interior repairs for damage caused from common elements, complied with the Louisiana Condominium Act as well as the Riverside Association’s declaration.

For these reasons, we affirm the judgment of the trial court, which granted summary judgment in favor of defendant Riverside Court Condominium Association, Inc., and its finding that the Riverside Court Condominium Association, Inc. is not responsible for the damages alleged by Mr. and Mrs. Roach.

AFFIRMED.

      . The Roachs purchased the condominium unit in 1986.


author: I,STEVEN R. PLOTKIN, Judge.

text:
    STATE of Louisiana v. Charles Gary WAINWRIGHT.
    No. 2002-K-2212.
    Court of Appeal of Louisiana Fourth Circuit.
    Dec. 30, 2002.
    James Edgar Boren, Baton Rouge, LA, for Relator/Charles Gary Wainwright.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge DENNIS R. BAGNERIS, SR., and Judge DAVID S. GORBATY).
   I,STEVEN R. PLOTKIN, Judge.

The defendant, Gary Wainwright, is a long time defense lawyer who was a candidate for the office of Orleans Parish District Attorney. Mr. Wainwright argues that District Attorney Harry Con-nick and the entire Orleans Parish District Attorney’s office should be recused from this case since Harry Connick supported Dale Atkins, a candidate running against the defendant in the election for District Attorney. The burden of proving a personal interest under La.C.Cr.P. art. 680(1) rests with the defendant, who must prove it by a preponderance of the evidence. The defendant must prove that the District Attorney has a personal interest in conflict with the fair and impartial administration of justice. State v. Givens, 1999-3518 (La.1/17/01), 776 So.2d 443, 454; State v. Hooker, 2000-0751 (La.App. 4 Cir. 5/17/00), 763 So.2d 738, 748.

The defendant claims that the instant case is similar to State v. Snyder, 237 So.2d 392 (1970). However, in Snyder the District Attorney testified at the motion to recuse that he had developed a strong animosity toward the defendant. In the present case the District Attorney did not testify at all. Another distinction is that the defendant and District Attorney Con-nick were not opponents in the District Attorney election. An appearance of bias and prejudice is not sufficient to warrant | pthe granting of a motion to recuse. In order to show that a District Attorney should be recused from a case the defendant has to prove that he was treated differently in the management of his case. There is no evidence that the District Attorney was involved in this case or that - District Attorney Connick’s decision to support Dale Atkins affected the treatment of defendant’s case. Thus, the defendant has failed to show that District Attorney Connick or his office should be recused from the instant case. The trial court did not err in denying the motion to recuse.

WRIT DENIED.

      . Neither the defendant nor Dale Atkins was elected District Attorney.


author: JgFOIL, J.

text:
    SANDI’S II, LTD. v. ASSUMPTION PARISH POLICE JURY.
    No. 2001 CA 2819.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.

      Christopher Riviere, Thibodaux, for Appellant Plaintiff Sandi’s II, Ltd.
    Charles J. Duhe, Jr., B. Scott Cowart, Baton Rouge, for Appellee Defendant Assumption Parish Police Jury.
    Before: FOIL, FOGG and KLINE, JJ.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   JgFOIL, J.

This appeal challenges a trial court’s refusal to overturn a police jury’s denial of a liquor license. We affirm.

BACKGROUND

On March 29, 1999, Sandra Fernandez, the President of Sandi’s II, Ltd., filed this lawsuit against the Assumption Parish Police Jury, challenging the police jury’s denial of her application for a liquor license to operate a lounge. She challenged the constitutionality of an ordinance upon which the police jury based its denial of the permit, and sought a writ of mandamus ordering the police jury to issue the liquor license. Ms. Fernandez asserted that the ordinance was unconstitutional and invalidly enacted because it was enacted in violation of the Open Meetings Law, La. R.S. 42:4.1 et seq.

The record reflects that Sandi’s II applied to the police jury for a liquor license on January 5, 1999. The police jury placed the matter on its January 13, 1999 agenda. At its January 13th meeting, the police jury enacted Ordinance 99-01, which amended its existing liquor ordinance to prohibit a barroom within 500 feet of a church. Thereafter, the police jury denied the liquor license request for Sandi’s II on the basis that the proposed site was within 500 feet of a church. This suit followed.

The police jury filed a peremptory exception of prescription, urging that under La. R.S. 26:106, an aggrieved party has only ten days from notice of a local authorities’ liquor permit decision to file an appeal with a district court. In support of the exception, the police jury submitted the minutes of the January 27, 1999 meeting, which reflect that Mr. Sidney Moffett, Ms. Fernandez’s son-in-law, with whom Ms. Fernandez had a business arrangement with respect to the operation of Sandi’s II, was present and was informed that the police jury approved an amendment to the existing ordinance and could not issue the liquor permit. The police jury urged that Sandi’s II took no action on the permit denial until March 29, |s1999, despite having knowledge of the permit denial for more than 10 days prior to filing suit, and therefore, the suit was prescribed.

The police jury also filed a motion for partial summary judgment, urging that an action complaining of a violation of the Open Meetings Law must be brought within 60 days of the action taken. Because Sandi II’s suit was filed more than 60 days after the ordinance was adopted, the police jury urged, any claims based on the alleged violation of the open meetings law should be dismissed.

Ms. Fernandez offered evidence of a police jury letter dated March 12, 1999, to Mr. Moffett, informing him that the police jury conducted further investigation and determined that there was in fact an organized church within 500 feet of the proposed liquor establishment, and the permit request was denied. Ms. Fernandez received a copy of this letter from the police jury by certified mail on March 19th or 20th.

The trial judge denied the exception of prescription. Thereafter, the police jury reurged the exception, introducing the deposition testimony of Ms. Fernandez. Therein, Ms. Fernandez revealed that her daughter, Jena, was married to Sidney Moffett and served as the secretary treasurer of Sandi’s II. She also admitted that on March 12, 1999, Jena faxed her a copy of the letter sent from the police jury to Mr. Moffet denying the permit request. The trial judge referred the prescription exception and the motion for partial summary judgment to the trial on the merits.

At trial, Ms. Fernandez attested that she and her son-in-law attended the police jury meeting on January 27, where they were informed that the liquor permit application had been denied. Ms. Fernandez again acknowledged that on March 12, 1999, she received a faxed copy of the letter to her son-in-law specifically stating that the permit application was denied.

Mr. Moffett testified that he and Ms. Fernandez entered into an agreement in the first week of January pursuant to which he would construct |4and lease a building on land he owned to Ms. Fernandez to operate Sandi’s II. Mr. Moffet also revealed that he is the owner of a barroom called Sandi’s, which is located in another Louisiana city.

At the conclusion of the trial on the merits, the trial court dismissed the lawsuit, finding that the proposed liquor establishment was located within 500 feet of an organized church. The trial court also granted the exception of prescription and motion for partial summary judgment, dismissing all claims based on the alleged violations of the Open Meetings Law and the constitutional challenges to the ordinance upon which the permit decision was based.

This appeal, taken by Sandi’s II, followed. Sandi’s II argues that the police jury violated the Open Meetings Law, and therefore, the law pursuant to which its permit denial was based is void. Sandi’s II also attacks the trial court’s conclusion that an organized church was in existence within 500 feet of the proposed lounge.

The police jury filed a motion to dismiss the appeal, urging that it had not been filed within ten days of the trial court’s judgment. This court referred the motion to the merits. We deny the motion, and address the merits of the appeal.

DISCUSSION

Louisiana Revised Statute 26:106, a provision of the Alcoholic Beverage Control Law, provides that a person aggrieved by a decision of the local authorities to withhold a permit may, within ten days of the notification of the decision, take a de-volutive appeal to a district court. In this case, the evidence established that Ms. Fernandez in fact was notified of the permit denial when she attended the January 27th meeting of the police jury and also received a copy of the letter to her son-in-law unequivocally stating that the permit request was denied on March 12, 1999, more than 10 days before the lawsuit was filed. Because Ms. Fernandez failed to file suit within 10 days of her knowledge of the permit decision, the lawsuit challenging the Ifipolice jury’s determination that a church existed within 500 feet of the proposed establishment was untimely, and the trial court correctly granted the exception of prescription on the merits of the police jury’s permit decision.

Furthermore, the trial court correctly dismissed the Open Meetings Law claims. Louisiana Revised Statute 42:9 provides that a suit to void any action taken in violation of the Open Meetings Law must be commenced within sixty days of the action. The sixty-day period provided for in this statute is a preemptive one. Kennedy v. Powell, 401 So.2d 453, 457 (La.App. 2nd Cir.), writ denied, 406 So.2d 607 (La.1981). Sandi’s II lost the right to attack the ordinance on these grounds when it failed to file suit within sixty days of January 13, 1999 as required by La. R.S. 42:9. Thus, the trial court correctly granted the motion for partial summary judgment in favor of the police jury.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant.

AFFIRMED.


author: LWHIPPLE, J. h KUHN, J.,

text:
    J. Jude QUEBEDEAUX and Wendy Quebedeaux v. The DOW CHEMICAL COMPANY and John Dandridge, Reliance Insurance Co. and Dorinco Reinsurance Co.
    No. 2000 CA 0465 R.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.
    Writ Denied April 4, 2003.

      Neil D. Sweeney, Baton Rouge, for Plaintiffs/Appellees, J. Jude Quebedeaux and Wendy Quebedeaux.
    Gregory E. Bodin, Stewart Tharp, Baton Rouge, for Defendant/Appellant, The Dow Chemical Co.
    Karen E. Dugas, Plaquemine, for Defendant/Appellant, The Dow Chemical Co.
    Before: WHIPPLE, KUHN, and DOWNING, JJ.
   LWHIPPLE, J.

This case is before us on remand from the Supreme Court. The Supreme Court granted Dow’s application for writs of cer-tiorari and review, reversed and set aside the portion of the previous opinion rendered May 11, 2001 pertaining to plaintiffs’ damages, and remanded to this court to determine the proper quantum for plaintiffs’ damages. The essential facts and procedural history, as set forth in this court’s previously published opinion, are as follows.

FACTS AND PROCEDURAL HISTORY

Quebedeaux and Dandridge were both employed by Dow as operators in the making of polyethylene, or plastic, pellets. On August 28, 1992, Quebedeaux, an eleven-year employee, was working in the outside extrusion area and Dandridge, a sixteen-year employee, was working inside. Both were working the same shift and were co-employees working at the same level. Every two weeks, they would switch working the inside and outside positions in the extrusion area. The outside man’s job was to make the transfer of pellets when the hopper, in which the pellets were stored, became full. To make the transfer, the employee had to go to the area where the pellets were being transferred to confirm that the new storage area was empty. That person had to call the inside operator to let him know that the transfer could be made.

On the day of the incident, Quebedeaux was asked by Dandridge to carry paperwork to another building to begin the transfer of the plastic pellets from one storage unit to another. When Quebe-deaux went to get the paperwork from inside, he saw that Dandridge was having trouble printing something on his computer. Quebedeaux offered to help Dan-dridge, who got up from his chair allowing IsQuebedeaux to sit down. A heated verbal argument ensued between Quebedeaux and Dandridge, which culminated in a physical altercation between the two men. Dandridge went behind Quebedeaux, still sitting in the computer chair, and grabbed him around his neck, causing Quebedeaux to fall to the ground. Pursuant to Dow’s “zero tolerance” policy regarding fighting in the workplace, both men were fired.

Plaintiffs filed this suit against Dan-dridge and Dow alleging that Dandridge was liable for damages suffered as a result of Dandridge’s intentional actions against Quebedeaux. The alleged damages included: 1) physical pain and suffering, 2) mental anguish as a result of both the altercation and plaintiffs termination, 3) past lost wages, and 4) future lost wages. Plaintiffs also alleged that Dow was liable to plaintiffs for the damages caused by the actions of its employee, Dandridge, under the legal theory of respondent superior.

Dow filed a motion for partial summary judgment on April 13, 1999, asserting that under Louisiana law, an employer is free to terminate an employee at any time and for any reason without incurring liability for the discharge and, therefore, it cannot be liable for damages flowing from the termination of Quebedeaux’s employment. The motion was denied by the trial court and writs were denied by this court and the Supreme Court.

The case was tried by a jury on June 21 and 22, 1999. Following the presentation of plaintiffs case, Dow moved for a directed verdict, which was denied. The jury subsequently rendered a verdict in favor of plaintiffs, finding that Dandridge had committed a battery upon Quebedeaux and that Quebedeaux suffered damages as a result of the battery. The jury also determined that the | ¿percentage of fault attributable to Quebedeaux was 35% and that the percentage of fault attributable to Dandridge was 65%. Concluding that Dow was liable for the intentional tort committed by Dandridge, the jury awarded Quebedeaux damages for Dandridge’s conduct as follows:

General damages: (pain, suffering and mental anguish) $48,500.00
Past lost earnings and benefits: $45,000.00
Future lost earnings: $50,000.00
Future lost benefits: $80,000.00

The jury further determined that Wendy Quebedeaux had suffered a loss of consortium and awarded her damages in the amount of $15,000.00. Accordingly, judgment was signed on October 4, 1999, against Dow and Dandridge and in favor of Jude Quebedeaux in the amount of $145,275.00 and in favor of Wendy Quebe-deaux in the amount of $9,750.00, plus interest and costs.

Dow appealed, raising five assignments of error. Dow asserted that Quebe-deaux’s award for past and future wages and benefits resulted solely from his termination. Thus, because he was an employee at will, subject to termination at any time, 1) the trial court erred in denying Dow’s motion for summary judgment, 2) the trial court erred in denying Dow’s motion for directed verdict, which allowed his claim for past and future lost wages and benefits to go to the jury, 3) the jury erred in awarding him damages for past and future lost wages and benefits, 4) the jury’s award of $48,500.00 for general damages was an abuse of its discretion, and 5) the jury’s award of $15,000.00 for loss of consortium was excessive.

|..DISCUSSION

In the previous opinion rendered by this court, the majority determined that Dow was liable for the intentional torts of its employees and that all damages that flowed from that intentional tort by virtue of the doctrine of respondeat superior, stating:

While we agree that plaintiff was an employee at will who could have been fired at any time, plaintiff is entitled to recover for all damage suffered by plaintiff as a result of the battery. La.C.C. art. 2315. Quebedeaux is not making a wrongful discharge claim, but a claim for damages resulting from a battery. Dow’s liability flows from the intentional tort committed by its employee by virtue of the doctrine of respondeat superior. Dow’s liability is that of an employer for the tort damages caused by its employee, John Dandridge. Thus, the threshold question is not whether Dow is liable for damages, but whether Dandridge is. And Dow has conceded that he is. (Emphasis added.)

Quebedeaux v. Dow Chemical Co., 2000-0465, pp. 8-9 (La.App. 1st Cir.5/11/01), 809 So.2d 983, 989. Finding no abuse of discretion by the jury, the majority affirmed the jury’s damage awards, with this author dissenting from the award of such damages for plaintiffs termination of employment.

After granting writs, the Supreme Court rendered a majority opinion wherein the Court determined that the employment-at-will doctrine bars recovery of damages arising from the termination of an employee under these circumstances. Quebedeaux v. Dow Chemical Co., 2001-2297, p. 6 (La.6/21/02), 820 So.2d 542, 546. The Supreme Court reversed the appellate court’s affirmation of the lower courts’ damage awards and remanded the case with instructions for the appellate court to reconsider the “proper quantum” for plaintiffs’ damages. Quebedeaux v. Dow Chemical Co., 2001-2297 at p. 7, 820 So.2d at 546. In doing so, the Supreme Court rejected the plaintiffs’ argument, and this court’s prior holding, that |fiDow is vicariously hable for the damages arising out of Quebedeaux’s termination (i.e., the argument that “but for the fight” plaintiff would not have been fired). Instead, the Supreme Court held that the employment-at-will doctrine bars liability for such damages arising out of the termination of an employee.

The Supreme Court further stressed that its reversal was limited in that “an employee may still apply general principles of tort law to hold his employer vicariously liable for other damages arising out of an intentional tort committed by his employee.” Quebedeaux v. Dow Chemical Co., 2001-2297 at p. 6, 820 So.2d at 546. Our interpretation of the Supreme Court’s instruction on remand is that we are mandated to review the case bearing in mind, 1) that the employer is vicariously liable only for the damages directly arising out of the intentional tort committed by the co-employee, and 2) that the employer is not liable for any damages arising from or incidental to the termination after the intentional tort committed by the co-employee. Otherwise stated and applied in the instant case, Dow is liable for the damages suffered by Quebedeaux as a result of the battery inflicted by its employee, Dandridge; however, Dow is not responsible for any damages arising from or associated with Quebedeaux’s termination, which resulted from his involvement in the altercation with Dandridge in violation of Dow’s established policy, requiring termination of employment under such circumstances.

Thus, in accordance with the Supreme Court’s ruling, Dow is liable for the [7general damages suffered by Quebedeaux as a result of the intentional battery inflicted by Dandridge, ie., pain, suffering, and mental anguish. Dow is not responsible, however, for those damages incidental to the termination of Quebedeaux’s termination, ie., past and future lost earnings and benefits.

Bearing these precepts in mind, after completing the review of the record ordered herein, we conclude that $30,000.00 is an appropriate award for Quebedeaux’s damages, considering the particular circumstances of this case.

Quebedeaux testified that at the beginning of their shift, he received a call over the intercom from Dandridge asking him to take the paperwork across the street in order to make a transfer. Quebedeaux testified that he first made a call to his wife and then went to get the papers. He saw that Dandridge was having trouble at his computer and offered to help. Dan-dridge got up and Quebedeaux sat down. Quebedeaux testified that he and Dan-dridge previously had enjoyed a good working relationship, but when he was not able to get the printer to work for Dan-dridge, Dandridge began cursing at him about the transfer. Quebedeaux stated he cursed back. He then heard the shift supervisor, Harold Himel, Jr., say, “John, don’t do that.” Dandridge placed Quebe-deaux in a chokehold with his arm around his neck, and pushed Quebedeaux into the computer desk. Quebedeaux testified he could not breathe and Dandridge twisted and pulled him off the chair. Quebedeaux stated he began to fall and Dandridge therefore had to let go of him. Before he walked away, Dandridge told Quebedeaux that he was going to kill him. Quebedeaux claimed that he never threatened or hit Dandridge and that he did not fight or respond to Dandridge because he knew he would lose his job.

Himel, a twenty-two year employee at Dow, testified that he walked in the room where Dandridge was working and saw that he was having difficulty at his computer. He stated he started talking to Dandridge about the hurricane when Que-bedeaux joined in the conversation. Que-bedeaux saw that Dandridge was | shaving trouble and asked Dandridge to move so he could help him. Himel testified that Dandridge told Quebedeaux that he needed to make the transfer and Quebedeaux responded that he would do so in a minute. Dandridge repeated the request and Que-bedeaux again stated that he would take the paperwork over in a minute. Dan-dridge then said he would ask Himel to make the transfer. Himel did not remember who spoke first, but words were exchanged which became louder and more vulgar, eventually escalating to a physical encounter. When Dandridge started to move toward Quebedeaux, Himel put his hands up to try to stop Dandridge. Dan-dridge did not say anything but put his arm around Quebedeaux’s neck and tightened it. Quebedeaux grabbed Dandridge’s arm, but Himel could see that Quebedeaux was getting weak and he fell to the floor. Dandridge let go and walked away. Himel called plant security. If there had been no physical violence, Himel stated that he would not have called security.

The intentional tort of battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact. Caudle v. Betts, 512 So.2d 389, 391 (La.1987). Dow concedes that Dandridge committed a battery upon Quebedeaux; thus, the issue is the quantum of damages due.

General damages are those which may not be fixed with pecuniary exactitude. They involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitively measured in monetary terms. Odom v. Claiborne Electric Co-op., Inc., 623 So.2d 217, 221 (La.App. 2d Cir.), writ denied, 629 So.2d 1171 (La.1993).

Wendy Quebedeaux testified that on the day of the incident, she was at home when Mr. Quebedeaux unexpectedly returned home from work early. She testified that Mr. Quebedeaux was visibly upset and shaking, and that she “could |fltell that he was nervous and upset about something.” She further testified that he told her that “he had been attacked at work.” She observed the bruises and marks on her husband resulting from injuries received in the attack, which she described as follows:

His neck was all red, all around his neck. He had little scratches like on his neck. His arm was red.... The next day we noticed he had bruises. He was bruised like on his chest. His neck was bruised, his arm, you know, around his elbow. His hip and his leg, ... all the left side of his body.

When asked about whether her husband had experienced any further problems over a period of time as a result of the injuries received in the attack, she testified:

He still complains every now and then about his back hurting. It’s usually like, he drives a lot on his job. If he’s driving for long periods of time or if he’s standing for long periods of time it’ll give him little bouts of trouble for like two or three days at a time and he has to take medication to help it.

Quebedeaux testified that the incident and the fact that he was escorted off of the premises caused great emotional distress and humiliation. He and his wife testified that he has suffered from back problems that he did not have prior to the altercation. Wendy Quebedeaux testified that the incident changed her husband and that he is still emotionally affected. She further testified that as a result of this incident, he was made to feel like a criminal, as though he had done something wrong.

Considering the parties’ testimony, the medical evidence, and the record as a whole, we conclude that an award of $30,000.00 is adequate under the circumstances to compensate plaintiff for his injuries.

With regard to the claim for loss of consortium by Wendy Quebedeaux, we | inacknowledge our difficulty in determining whether the injury giving rise to this claim resulted from the aftermath of the battery inflicted upon Mr. Quebedeaux or from the termination of his employment with Dow. However, considering Mrs. Que-bedeaux’s testimony, we find the loss of consortium suffered by Mrs. Quebedeaux was attributable, in part, to the battery inflicted upon her husband. Thus, we find that a damage award for loss of consortium is warranted herein in the amount of $5,000.00. In all other respects, the judgment is maintained.

CONCLUSION

For the above and foregoing reasons, and in accordance with our obligation on remand, the portion of the lower court’s judgment pertaining to plaintiffs’ damage awards is reversed and set aside. Damages are hereby awarded in favor of J. Jude Quebedeaux and against The Dow Chemical Company in the total amount of $80,000.00 and consortium damages are awarded in favor of Wendy Quebedeaux and against The Dow Chemical Company in the amount of $5,000.00 subject to reduction for the percentage of fault assigned by the jury as attributable to Que-bedeaux (35%). In all other respects, the lower court judgment is affirmed.

Costs are assessed against defendant, The Dow Chemical Company.

AFFIRMED IN PART; JUDGMENT REVERSED AND SET ASIDE IN PART; AND RENDERED.

KUHN, J., concurs and assigns reasons.

h KUHN, J.,

concurring.

I concur. In its remand to this court, the Supreme Court instructed that the only issue we are to consider is that of damages. Interestingly, the evidence available to us on remand is the same evidence before the Supreme Court when it ruled. Thus, it appears that the remand is a suggestion that this court delve into the legal principles and their attendant policy concerns that the Supreme Court plurality modified in its reversal of this court’s original decision. The concurring opinions suggest various rationales for the reversal. Which approach is correct?

On the issue of damages, the fascinating question is why the Supreme Court did not set an amount but instead chose to remand to this court. Could it be that under the facts of this case the Court meant that damages included loss of future wages? Or could it be that the Court meant for total damages to remain the same regardless of the theory of recovery? Or perhaps it could be that the Court meant to excise the awards from the jury verdict that are inappropriate in light of their decision?

The damage award set in this court’s majority opinion is well-reasoned but is it based on the rationale the Supreme Court contemplated?

      . See Quebedeaux v. Dow Chemical Co., 2001-2297 (La.11/21/01), 801 So.2d 1080.

        . See Quebedeaux v. Dow Chemical Co., 2000-0465 (La.App. 1st Cir.5/11/01), 809 So.2d 983, (Whipple dissenting).

      . See Quebedeaux v. Dow Chemical Co., 2001-2297 (La.6/21/02), 820 So.2d 542.

      . Quebedeaux’s wife, Wendy, also sued for loss of consortium.

      . Also named as defendants in plaintiffs’ amended petition were Reliance National Insurance Company and Dorinco Reinsurance Company.

      . Mr. Dandridge did not appeal the district court's judgment. Thus, the judgment is final as to him.

      . Five of the Justices concurred in the result in the majority opinion, three of whom assigned reasons.

      . In support of its conclusion, the Supreme Court set forth the following rationale:
      We find victim compensation, which is one of the primary policies supporting vicarious liability, must give way to the employment-at-will doctrine, which furthers broader societal policies, such as maintaining a free and efficient flow of human resources. We also observe that, if we were to accept plaintiffs’ argument, employers would be placed in the precarious position of having to retain combatant employees following workplace fights to avoid vicarious liability for any damages arising out of termination. Such a result would unfairly hamstring employers from making sensible business decisions.

        Quebedeaux v. Dow Chemical Co., 2001-2297 at p. 6, 820 So.2d at 546.

      . See Lowrey v. Pettit, 31,881 (La.App.2d Cir.5/7/99), 737 So.2d 213, where a store owner was deemed liable for battery committed on store employee, who suffered emotional distress and anxiety.

      . Although the damage awards were vacated for re-determination on remand, the finding of liability on the part of Dow was not disturbed.


author: _[¿FOIL, J. 1 WILLIAM F. KLINE, Judge

text:
    The SULTANA CORPORATION d/b/a Hannon Jewelers v. JEWELERS MUTUAL INSURANCE COMPANY.
    No. 2001 CA 2059.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.
    Writ Granted April 25, 2003.

      Leonard Cardenas, III, Baton Rouge, for Appellant Plaintiff The Sultana Corporation d/b/a Hannon Jewelers.
    Amos Davis, Baton Rouge, for Appellee Defendant Jewelers Mutual Ins. Co.
    Before: FOIL, FOGG and KLINE, JJ.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   _[¿FOIL, J.

In this appeal, an insured challenges the trial court’s dismissal of a claim for statutory penalties against its insurer under La. R.S. 22:1220. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Sultana Corporation sued its insurer, Jewelers Mutual Insurance Company, for denial of coverage under the applicable insurance policy. The trial court conducted a trial and rendered judgment in open court in favor of Sultana for $14,426.00, plus legal interest and court costs. Thereafter, on February 1, 2001 (before the trial court signed a written judgment), Jewelers’ counsel faxed a letter to Sultana’s counsel, indicating Jewelers’ decision to pay the award and requesting that Sultana’s counsel date, sign, and return the letter. Sultana’s counsel wrote “Agreed & Accepted” at the bottom of the letter, and signed and returned it to Jewelers’ counsel by return fax on the same day. Later, Sultana filed a “Motion to Enforce Settlement and For Statutory Penalties, Attorney’s Fees and Costs ...contending Jewelers failed to timely pay the amount owed within 30 days of the date of the February 1, 2001 “settlement.” Although Jewelers subsequently paid the amount owed, Sultana pursued its motion seeking statutory penalties.

The trial court conducted a hearing on the motion, and thereafter signed a judgment denying it. In reasons for judgment, the trial court indicated Sultana failed to prove it sustained actual damages because of Jewelers’ untimely payment of the settlement, and, therefore, was not entitled to a penalty award. Sultana appeals.

DISCUSSION

Regarding penalties against an insurer for failure to timely fund a settlement, La. R.S. 22:1220 provides:

A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to |ssettle claims with the insured .... Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.

In its first assignment of error, Sultana contends the trial court erred in requiring proof of actual damages in support of Sultana’s penalty claim against Jewelers. Although other appellate courts of this state have decided differently, this court has consistently held that for an insurer to be liable for damages under La. R.S. 22:1220, the insured must prove he sustained actual general or special damages as a result of the insurer’s breach. Reed v. Recard, 97-2250 (La.App. 1 Cir. 11/18/98), 744 So.2d 13, 19, writ denied, 98-3070 (La.2/12/99), 738 So.2d 572; Batson v. South Louisiana Medical Center, 97-1382 (La.App. 1 Cir. 9/25/98), 724 So.2d 782, 789, writ granted in part, jmt. amended on other grounds, 98-2709 (La.1/8/99), 734 So.2d 649; Carter v. Davis, 95-2198 (La.App. 1 Cir. 5/10/96), 673 So.2d 362, 364, writ denied, 96-1449 (La.6/27/97), 696 So.2d 991. Therefore, the trial court did not err in requiring Sultana to prove actual damages. Sultana’s argument to the contrary is without merit.

Alternatively, Sultana argues it did make an adequate showing of damages in the form of the affidavit of Mr. Bayardo Hannon, owner of |4Sultana. In the affidavit, Mr. Hannon stated that Jewelers’ failure to timely pay the settlement required Sultana to use out-of-pocket cash (rather than the settlement proceeds) to pay for lighting, display cases, and other items needed for the construction of its new store. Having to use out-of-pocket cash delayed the move-in date into the new store, which in turn caused the accrual of additional interest on the construction loan, and that this interest would have to be paid by Sultana.

A plaintiff has the burden to prove the damage he claims with legal certainty. Tudor Chateau Creole Apartments Partnership v. D.A. Exterminating Company, Inc., 96-0951 (La.App. 1 Cir. 2/14/97), 691 So.2d 1259, 1264. Mr. Hannon’s complaints regarding Sultana’s use of out-of-pocket cash, the delay in moving into a new store, and the accrual of additional interest on a construction loan are not certain enough to establish what damage, if any, Sultana suffered. The only loss that can be discerned from Mr. Hannon’s affidavit is the payment of additional interest on a loan which allegedly would not have been owed had Jewelers timely paid the settlement. However, Mr. Hannon does not indicate the amount of additional interest, and in fact, does not even indicate that Sultana had to pay the additional amount; rather, according to Mr. Hannon, the additional amount would have to be paid by Sultana in the future. Thus, the trial court’s factual determination that Mr. Hannon’s affidavit was insufficient to establish actual damages was not manifestly erroneous. See Batson, 724 So.2d at 789.

For the foregoing reasons, the trial court’s judgment, dismissing Sultana’s claim for statutory penalties against Jewelers, is affirmed. Costs of this appeal are assessed to Sultana.

AFFIRMED.

WILLIAM F. KINE, Judge Pro Tem., concurs with reasons.

FOGG, J., dissents and assigns reasons.

1 WILLIAM F. KLINE, Judge

Pro Tem., Concurring.

I can concur with the majority opinion relative to the insufficiency of the proof of damages. However, any delay in payment of funds due by a date certain, causes some damage, which is susceptible of proof. The amount of those damages may be relatively inconsequential in some cases, but any amount must be appropriately proven beyond speculation.

Even if one might conclude that some damages were proven, the trial court in evaluating the duty of good faith and fair dealing then has the discretion of whether to assess statutory penalties.

The award of penalties is not appropriate in this case.

11 FOGG, J., Dissenting.

For the following reasons, I respectfully dissent. The majority concludes that the plaintiff failed to prove it was damaged by the defendant’s actions with the level of specificity required by the jurisprudence of this circuit. I disagree. The method of proving damages does not differ depending on the cause of action asserted. Herein, the plaintiff asserted that, due to the delay in payment of the settlement, it was required to use other funds for some aspects of the construction of its new store. Consistent with several other circuits, I would find that, by these assertions, the plaintiff has met its burden of proof. See Gilpin v. State Farm Mut. Auto. Ins. Co., 99-36 (La.App. 5 Cir. 5/19/99), 735 So.2d 921; Haas v. Audubon Indem. Co., 98-565 (La.App. 3 Cir 10/21/98), 722 So.2d 1022; Brinston v. Auto. Cas. Ins. Co. (La.App. 4 Cir. 12/3/97), 703 So.2d 813; and see Matter of Hannover Corp. of Am., C.A.5 (La.1995), 67 F.3d 70. Therefore, I would award the statutory penalty in the sum of $5,000.00.

      . See Rogers v. Commercial Union Insurance Company, 01-443 (La.App. 3 Cir. 10/3/01), 796 So.2d 862, 868-869; Gilpin v. State Farm Mutual Automobile Insurance Company, 99-36 (La.App. 5 Cir. 5/19/99), 735 So.2d 921, 929; and Brinston v. Automotive Casualty Insurance Company, 96-1982 (La.App. 4 Cir. 12/3/97), 703 So.2d 813, 817.

      . Because we decide this appeal based on an inadequate showing of damages, we need not address the issue of whether Jewelers’ untimely payment was knowing and intentional.


author: FOGG, J.

text:
    Rodney REVERE v. Rodney STRAIN, Sheriff, St. Tammany Parish and Individually.
    No. 2002 CA 0254.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.
    Rodney Revere, Angola, pro se, Plaintiff-Appellant.

      Margaret H. Kern, Covington, for Defendant-Appellee Rodney Strain, Sheriff, St. Tammany Parish.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   FOGG, J.

By this appeal, a prisoner seeking production of certain public records challenges the sustaining of the defendant’s peremptory exception raising the objections of no cause and no right of action. For the following reasons, we vacate the judgment of the trial court and remand this matter for further proceedings.

The record establishes that on July 27, 2001, Rodney Revere, an inmate at the Louisiana State Prison at Angola, filed a public records request with the St. Tammany Parish Sheriffs Office. Mr. Revere sought the employment and disciplinary file of an employee of the Sheriffs Office. The Sheriffs Office refused to provide the records, and Mr. Revere filed suit. The Sheriffs Office subsequently filed a peremptory exception raising the objections of no cause and no right of action.

On December 10, 2001, a hearing was held before Judge Patricia T. Hedges. At the conclusion of the hearing, the trial judge orally sustained the defendant’s exception. However, on December 17, 2001, Judge Hedges signed an order recusing herself from this matter, “[i]n order to avoid the appearance of any impropriety or bias.”

On December 19, 2001, Judge Hedges signed a judgment sustaining the defendant’s exception and dismissing Mr. Revere’s petition. From this judgment, Mr. Revere appeals.

LSA-C.C.P. art. 152 provides that a judge may recuse herself in any cause in which a ground for recusation exists. Until a judge has recused herself, she has full power and authority to act in the cause. However, the power and authority for her to act as judge in a particular case for any and all reasons ceases at the moment of recusal. See Acadian Heritage Realty v. City of Lafayette, 425 So.2d 388 (La.App. 3 Cir.1982). Our Supreme Court, in State v. Price, 274 So.2d 194, 197 (La.1973), stated,

It has long been recognized in our civil procedure that once a judge is Lrecused, or a motion for his recusal has been filed, he has no power to act (except to appoint the proper person to sit ad hoc when the law provides for such an appointment). Any action taken by a re-cused judge is an absolute nullity. State v. Judge of Twenty-First Judicial District, 37 La.Ann. 253 (1885); State v. Judge of Twenty-Second Judicial District Court, 39 La.Ann. 994, 3 So. 91 (1887); Jones v. Cunningham, 157 La. 208, 102 So. 309 (1924); State v. Savoy, 207 La. 982, 22 So.2d 402 (1945).

After Judge Hedges’ recusal in this matter, her power to act was limited and did not include the authority to sign a judgment. Therefore, we vacate the judgment of the trial court and remand this matter for further proceedings. Assessment of costs shall await final disposition of this matter.

VACATED AND REMANDED.


author: LFOGG, J.

text:
    Rickie James PELLEGRIN and Merrill Cunningham Pellegrin v. CITY OF THIBODAUX, Nolan P. Roger, Ethel Legendre Roger, Oak Terrace Motel, Inc. and GSE Associates, Inc.
    No. 2001 CA 2750.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.

      Dexter A. Gary, Houma, for Plaintiffs— Appellants Rickie James Pellegrin and Merrill Cunningham Pellegrin.
    Frank S. Craig, III, Ben B. Hu, Baton Rouge, Johnny X. Allemand, Thibodaux, for Defendants — Appellees Nolan P. Roger and Ethel Legendre Roger.
    Christopher H. Riviere, Thibodaux, for Defendant — Appellee Oak Terrace Motel, Inc.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   LFOGG, J.

By this appeal, the plaintiffs contest a judgment of the trial court dismissing their lawsuit as to one defendant upon consideration of exceptions on prematurity and no cause of action. For the following reasons, we reverse.

On January 11, 2001, Rickie James Pel-legrin and Merrill Cunningham Pellegrin filed a Petition to Reduce Sales Price, Terminate Leases, Recover Unpaid Rentals, Recover Damages and Other Relief, naming as defendants the City of Thibo-daux, Nolan and Ethel Roger, Oak Terrace Motel, Inc., and GSE Associates, Inc. Therein, the plaintiffs alleged that, on January 13, 2000, they purchased a certain tract of land from Nolan and Ethel Roger for approximately $125,000. They purchased a second tract of land from Oak Terrace Motel on January 21, 2000 for the sum of $60,000. The plaintiffs intended to use these adjacent tracts as a site for a rifle range. Since 1972 both tracts had been leased to the City of Thibodaux for use as a waste disposal site. The City of Thibodaux operated a waste disposal facility on both tracts from 1972 through 1989. On the dates of the purchases, both tracts were under lease to the City of Thibodaux; the leases were for a ten year period to expire in 2003.

In their petition, the plaintiffs further alleged that the City of Thibodaux was required by “state environmental regulations” to properly close the facility and “apply two feet of suitable cover material over the entirety of the disposal facility.” Prior to purchasing the properties, the Pellegrins retained GSE Associates, an environmental consulting company, to conduct a Phase 1 environmental site assessment. GSE Associates documented its findings in a report entitled “The Phase 1 Report.” The Phase 1 Report noted that the City of Thibodaux landfill was previously located on the property and did not recommend any further sampling or analysis of the property.

laThe plaintiffs also asserted that, prior to purchasing the tracts, Rickie Pellegrin contacted officials at the Louisiana Department of Environmental Quality (DEQ) to inquire about the disposal site, and was advised that DEQ had approved the closure of the facility and had authorized the discontinuance of all post-closure monitoring.

The plaintiffs averred that, several months after purchasing the properties, they discovered several areas where debris and waste materials were exposed at the surface of the properties. They alleged that the City of Thibodaux had not properly maintained or closed the landfill, and had not applied the depth of cover material over the disposal facility as required by DEQ and state regulations. Allegedly, this failure has precluded development of the land as a rifle range without further remediation of the property.

The plaintiffs also asserted claims for “Breach of Warranty against Redhibitory Defects.” As to those claims, they asserted that the “presence of an improperly closed and maintained disposal facility on [the properties], the release of solid waste and hazardous substances from the improperly closed and maintained disposal facility, and the contamination of the [properties] by solid waste and hazardous substances from the improperly closed and maintained disposal facility constitute red-hibitory defects, or vices, which have rendered the use of the [properties] so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defects or vices; or alternatively, diminished the usefulness or value of the [properties] so that it must be presumed that a buyer would have bought the [properties] for a lesser price had he known of the defects or vices.” The plaintiffs averred that both the Rogers and Oak Terrace Motel breached their warranties against redhibitory defects or vices, and, due to such breach, the plaintiffs are entitled to a reduction of the sales prices of the properties.

The plaintiffs also asserted, in the alternative, a claim for “Breach of Warranty of Fitness” against the Rogers and Oak Terrace Motel. By this claim, the plaintiffs ^asserted that these defendants breached their warranty that the tracts were reasonably fit for their intended use. In their prayer, the plaintiffs sought reduction of the purchase price of both tracts, as well as, damages and attorney’s fees.

Nolan and Ethel Roger responded to this lawsuit by filing exceptions of prematurity and no cause of action. After hearing the exceptions, the trial court rendered judgment dismissing the plaintiffs’ claims against these defendants. The Pellegrins appeal.

The Rogers assert the suit was premature because the plaintiffs failed to provide the Rogers timely notice of the existence of the alleged redhibitory defect in the thing sold and an opportunity to repair the alleged defect before filing suit in redhibition. We disagree.

LSA-C.C. art. 2522 provides that a buyer must give the seller notice of the existence of a redhibitory defect within sufficient time to allow the seller the opportunity to make the required repairs. “A buyer who fails to give that notice suffers diminution of the warranty to the extent the seller can show that the defect could have been repaired or that the repairs would have been less burdensome, had he received timely notice.” LSA-C.C. art. 2522. Although the failure to give notice limits the remedies available to the buyer, it clearly does not prevent the filing of a lawsuit by the buyer. Therefore, the Rogers’ exception of prematurity has no merit.

We further find no merit to the Rogers’ exception of no cause of action. A peremptory exception of no cause of action presents a question of law, which we review de novo, applying the same standard as that applied by the trial court. Craft v. Allstate Ins. Co., 95-160 (La.App. 3 Cir. 8/30/95), 663 So.2d 116, writ denied, 95-2403 (La.12/15/95), 664 So.2d 454. The exception tests the legal sufficiency of the petition, and is triable on the face of the papers. City of New Orleans v. Bd. of 1 Dirs. of La. State Museum, 98-1170 (La.3/2/99), 739 So.2d 748. No evidence is admissible in support of or in opposition to the exception. Leatherman v. East Baton Rouge Parish, 275 So.2d 806 (La.App. 1 Cir.1972). To withstand the exception, the petition must set forth the material facts upon which the cause of action is based. Kahn v. Jones, 95-259 (La.App. 3 Cir. 11/2/95), 664 So.2d 700. Clearly, the plaintiffs’ petition states a cause of action in redhibition.

For the foregoing reasons, the trial court erred in dismissing the plaintiffs’ claims against Nolan and Ethel Roger. Therefore, we reverse the judgment of the trial court. Costs are assessed against Nolan and Ethel Roger.

REVERSED.

      . Additional claims made against the remaining defendants axe not at issue in this appeal.


author: _]¿FOGG, J.

text:
    J. Carmen SUAREZ v. ANDERSON INDUSTRIAL SCAFFOLDING.
    No. 2002 CA 0195, 2002 CA 0196.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.
    Writ Denied April 21, 2003.

      Charles R. Davoli, Baton Rouge, for Plaintiff — Appellant J. Carmen Suarez.
    W. Searth Clark, Metairie, for Defendant — Appellee Anderson Industrial Scaffolding.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   _]¿FOGG, J.

In this workers’ compensation case, the salient issue raised on appeal is whether the claimant forfeited his benefits pursuant to LSA-R.S. 23:1208.1 due to his untruthful denial on his application for employment of the existence of a known medical condition. For the following reasons, we affirm.

In October of 1999, J. Carmen Suarez, a 58-year-old Mexican immigrant, utilized the assistance of his daughter during the application process for a job with Anderson Industrial Scaffolding (AIS). Mr. Suarez represented on the application that he had no previous back problems or surgeries. On July 11, 2000, Mr. Suarez injured his back while working for AIS. During treatment of his back injury, he underwent an MRI, which showed that he had had a prior back surgery.

Mr. Suarez filed a claim for workers’ compensation benefits. AIS responded by filing a motion for summary judgment, contending Mr. Suarez’s failure to disclose the prior back surgery prevented his recovery for treatment for his current back complaints under LSA-R.S. 23:1208.1. The workers’ compensation judge granted the motion for summary judgment. Mr. Suarez appeals.

A motion for summary judgment is a procedural device used to avoid a full-scale trial where there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, writ denied, 97-1911 (La. 10/31/97), 703 So.2d 29. Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Sanders, 696 So.2d at 1035.

LSA-R.S. 23:1208.1 provides as follows:
Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury |sfund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

Initially, Mr. Suarez asserts that genuine issues of material fact exist as to whether he understood the inquires in the application concerning prior medical conditions and surgeries.

By affidavit, Billy Bass, Vice President of Safety and Risk Management for AIS, testified that he and Mr. Suarez’s daughter were present when Mr. Suarez applied for a position with AIS. He stated that he read aloud to Mr. Suarez each of the inquiries on the application concerning prior medical conditions and surgeries.

The evidence before the trial court reflects that Mr. Suarez’s daughter assisted him in completing the application for employment and that he represented in the application that he was fluent in both English and Spanish. Additionally, Mr. Suarez’s application for employment included a preparer/translator certification that was signed by Mr. Suarez’s daughter.

It is also undisputed that, on the application, Mr. Suarez denied having any back problems or surgeries on any part of his body. However, an MRI showed that Mr. Suarez had had surgery on his back at L4-L5. In his deposition, Mr. Suarez admitted that he underwent surgery in Mexico in the 1980’s. Therefore, we find no merit to Mr. Suarez’s bare assertion that genuine issues of material fact exist as to his lack of truthfulness.

Mr. Suarez further asserts that his prior surgery is not directly related to his work accident and injury. The medical condition for which Mr. Suarez claims benefits is a back injury. Clearly, Mr. Suarez’s failure to answer truthfully is directly related to the medical condition for which he claims benefits. See Trench v. Harmony Const. Co., 95-1851 (La.App. 1 Cir. 4/4/96), 672 So.2d 330, writ denied, (La.6/7/96), 674 So.2d 973.

Finally, Mr. Suarez asserts that the notice requirements of LSA-R.S. 23:1208.2 were not met by the application as it incorrectly cited the applicable statute as LSA-R.S. 23:1209.1, rather than LSA-R.S. 23:1208.1.

The notice in Mr. Suarez’s application was prominently displayed in bold faced block lettering of no less than ten point type in compliance with LSA-RS 23:1208.1. However, the notice read as follows:

WARNING: PURSUANT TO LSA-RS 23:1209.1, I UNDERSTAND THAT THE FAILURE TO ANSWER TRUTHFULLY ANY OF THE ABOVE QUESTIONS MAY RESULT IN A DENIAL OF ANY RIGHT I OR MY DEPENDENTS MAY HAVE TO WORKER’S COMPENSATION BENEFITS, INCLUDING MEDICAL TREATMENT AND EXPENSES. (Emphasis added.)

There is no indication that Mr. Suarez was somehow prejudiced by the typographical error. The notice was clearly marked with the necessary warning in the proper wording and typeface. Clearly, the typographical error relating to the statute number had no bearing on Mr. Suarez’s decision to be less than truthful on his employment application to the prejudice of his employer.

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge. Costs are assessed to the appellant, J. Carmen Suarez.

AFFIRMED.


author: JaFOlL, J.

text:
    Tammy M. CAYE v. SLIDELL TRAVEL CENTER.
    No. 2002 CA 0208.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.
    Writ Denied April 21, 2003.

      Frank A. Bruno, New Orleans, for Appellant Plaintiff Tammy M. Caye.
    John J. Rabalais, Michael K. Springman, Covington, for Appellee Defendant Slidell Travel Center.
    Before: FOIL, FOGG and KLINE, JJ.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   JaFOlL, J.

This appeal challenges a decision finding a workers’ compensation claimant forfeited benefits by making false statements to her employer. We affirm.

On March 5, 2001, Tammy Caye filed this disputed claim for workers’ compensation benefits against her employer, Slidell Travel Center, alleging that she sustained an occupational injury during the course and scope of her employment, namely, carpal tunnel syndrome. She later amended |4 her petition to allege that she injured her left shoulder, neck, arm and hand when a box fell on her at work. Ms. Caye claimed that the accident also caused the carpal tunnel syndrome.

Slidell Travel Center asserted that Ms. Caye made false statements for the purpose of obtaining benefits in violation of La. R.S. 23:1208, thereby forfeiting her right to benefits. Slidell Travel Center filed a motion for summary judgment on the issue, offering evidence that Ms. Caye denied any pre-existing left shoulder or neck injuries. However, emergency room medical records revealed that Ms. Caye had been in an automobile accident in 1993, and was treated for neck, left shoulder and arm pain. Slidell Travel Center also introduced medical records indicating that Ms. Caye received emergency medical care for left shoulder pain prior to the alleged work accident.

The workers’ compensation judge (WCJ) granted the motion for summary judgment, ruling that Ms. Caye violated the provisions of LA. R.S. 23:1208 and was not entitled to benefits. This appeal, taken by Ms. Caye, followed.

Ms. Caye asserts that she made no untruthful statements. She also insists that there are numerous questions of fact that must be resolved in order to determine whether she violated Section 1208, and therefore, summary judgment was improperly granted.

l3We disagree. The WCJ, in written reasons for judgment, thoroughly analyzed the law on Section 1208 and correctly applied that law to the undisputed facts of this case. We affirm the judgment, and in so doing, adopt the WCJ’s reasons, reflected in a copy appended to this petition, as our own. All costs of this appeal are assessed to appellant, Tammy Caye.

AFFIRMED.

APPENDIX

TAMMY M. CAYE VS. SLIDELL TRAVEL CENTER

DOCKET 01-01562 DISTRICT 6S OFFICE OF WORKERS’ COMPENSATION

STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

STATEMENT OF CLAIM

Claimant, Tammy Caye (hereinafter “Caye”) filed a Disputed Claim for Compensation on March 5, 2001. Caye allegedly sustained an occupational injury during the course and scope of her employment with Slidell Travel Center, specifically carpal tunnel syndrome. Caye subsequently filed an amendment to her original claim, alleging that she was injured on September 23, 2000, at Slidell Travel Center when a box fell on her, injuring her left shoulder, neck, arm, and hand.

Slidell Travel Center filed a Reconven-tional Demand on August 6, 2001, alleging Caye had violated the provisions of La R.S. 23:1208. Slidell Travel Center then filed a Motion for Summary Judgment, which was heard on October 26, 2001.

FINDINGS OF FACT
1. Caye gave a recorded statement on November 1, 2000, in which she denied being involved in any auto accidents and denied generally ever having suffered any “personal injuries, fallen, sprained wrists, broken legs” (Employer Exhibit “A”, pp. 22-23). |b2. Caye gave a deposition on June 4, 2001, in which she admitted to being involved in two prior auto accidents, while she could not remember specific dates (Employer Exhibit “B”, pp. 27-33).
3. On three separate occasions in her deposition, Caye denied any injury to her neck, arm, or shoulder in either of the auto accidents or on any other occasion:
(i) “Q. Did you injure your neck in that [auto] accident at all?
A. No.
Q. What about your shoulder, either shoulder?
A. No, Not that I can recall. ?” (Exhibit “B”, p. 31).
(ii) “Q. Before this [work-related] accident, have you ever received an injury to your neck?
A. No, ma'am.
Q. To either your right or left shoulder?
A. No, ma'am.” (Exhibit “B”, pp. 38-39)
(iii) “Q.... Before this [work-related] accident, do you ever recall an occasion where you would have had an x-ray to your neck, your cervical area, or your shoulder?
A. Not that I can recall.” (Exhibit
“B”, p. 86).
4. Certified medical records from Hancock Medical Center Emergency Room dated May 19, 1993, indicated the following: that Caye was involved in a motor vehicle accident involving injury to her head, left ankle, left arm; and that she underwent x-rays to her neck, left leg and left foot. | ^(Exhibit “C”).
5. Certified medical records from Hancock Medical Center dated May 22, 1993, indicated that Caye returned to the Emergency Room complaining of pain in her neck and left shoulder, and that she was ultimately discharged to home wearing a soft cervical collar (Exhibit “C”).
6. Certified medical records from Sli-dell Memorial Hospital Emergency Room dated October 18, 1998, indicate that Caye presented solely with complaints of pain to her left shoulder; that she felt it was “popping in and out”; that she underwent an x-ray of the left shoulder; that she was given an injection of Toradol; that she was discharged wearing a sling for her left arm and a prescription for medication. (Exhibit “D”)

CONCLUSIONS OF LAW

Louisiana Revised Statute 23:1208 provides in pertinent part as follows:

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

17This section was intended to prevent and discourage fraud in relation to workers’ compensation claims. Section 1208 clearly applies to any willful false statements or representations made “for the purpose of obtaining of defeating any benefit or payment.” Resweber v. Haroil Construction Company, 94-2708, p. 7 (La.9/5/95), 660 So2d 7, 12. Such false representations made to anyone, including the employer, physicians or insurers, result in forfeiture of those workers’ compensation benefits when the representations are made willfully for the purpose of obtaining benefits. Resweber, 660 So.2d at 9; Varnado v. Winn-Dixie Louisiana, Inc., 98-0301, p. 9 (Ls.App. 1st Cir.9/25/98), 720 So.2d 66, 70. Thus, the only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber, 660 So.2d at 12.

A claim under La. R.S. 23:1208 is appropriate for resolution by way of summary judgment. Bibins v. St. Francis Cabrini Hospital, 00-133 (La.App. 3 Cir. 2000), 768 So.2d 102.

A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, how that there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. Art. 966. Once the mover has made a prima facie showing that the motion for summary judgment should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain.

lain the instant case, Caye was asked on at least three occasions in her sworn deposition whether she had any prior problems or injuries to her neck or shoulders. The medical evidence reveals that Caye had in fact complained of problems to both areas, and had in fact received treatment to both areas on prior occasions.

Giving Caye the benefit of the doubt, this court could envision Caye’s failure to remember a prior neck or arm injury after her automobile accident on May 19, 1993, some eight years prior to the deposition testimony she gave. The medical records seem to indicate the major injury was to her leg. However, the court cannot overlook the fact that Caye returned to the emergency room some three days later with complaints of pain specifically in her neck and left shoulder, and was discharged wearing a soft cervical collar.

More troubling is the fact that on October 18, 1998, less that three years before her deposition testimony, Caye presented to the emergency room with the sole complaint of left shoulder pain. The court finds it inconceivable that Caye had forgotten about this, given the fact that she reported to the emergency room staff that she felt her shoulder was “popping in and out”; that she underwent an x-ray to her left shoulder; and that she was fitted with a sling for her arm upon discharge.

Given the above, the court finds that Slidell Travel Center has made a prima facie showing that Caye has violated the provisions of La.R.S. 23:1208 in that she made a false statement or representation; that it was willfully made; and |9that it was made for the purpose of obtaining workers; compensation benefits. Reswe-ber, 660 So.2d at 12.

In regards to the first prong of the Resweber test, the medical records bear out the fact that Caye had in fact suffered from prior neck and shoulder problems; thus, Caye made a false statement or misrepresentation in her deposition. As to the second and third prongs of the Reswe-ber test, the court can only conclude that Cayes’ denial of prior neck and shoulder problems was willfully made for the purpose of obtaining benefits since these are the same injuries for which she is making a claim for benefits. Additionally, her failure to disclose her prior injuries cannot be blamed on mere oversight or forgetfulness, given that Caye was discharged from Hancock in a soft cervical collar and discharged from Slidell Memorial wearing an arm sling, something, which is not easily forgotten.

Caye attempts to defeat the motion for summary judgment by stating in a sworn affidavit that “she did not classify that soreness [on October 18, 1998] as an injury and she did not recall the incident as an injury in response to a question of whether she had a prior injury at her deposition.” Additionally, Caye relies on the fact that the doctor who treated her for the October 18, 1998 shoulder pain, Dr. Vicky S. Hebert, testified that Caye did not give a history of an injury or trauma to her shoulder.

Regardless of how Caye or Dr. Hebert classifies her shoulder condition, Caye was specifically asked if she had ever had a x-ray to her neck or shoulder and she claimed she could not recall. The fact of the matter is that Caye had an | 1flx-ray to her neck following the 1993 auto accident when she presented three days following the accident complaining of pain in her neck and left shoulder. She had an x-ray to her left shoulder on October 18, 1998, after she presented with shoulder complaints.

For these reasons, the court finds that Caye violated the provisions of La. R.S. 23:1208 and has forfeited her right to benefits.

THUS DONE AND SIGNED the 20th day of November, 2001, in Covington, Louisiana.

/s/ Elizabeth A. Warren Elizabeth A. Warren Workers’ Compensation Judge Eastern Division-District 6