author: KLINE, J. t KLINE, J.

text:
    Randy NUZUM Consolidated with Craig Brigalia v. TCI TURNER CORPORATION.
    No. 2002 CA 1232.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Order Granting Rehearing May 30, 2003.

      Leonard Cardenas, Baton Rouge, Counsel for Appellee/2nd Appellants Randy Nu-zum and Craig Brigalia.
    Terri Collins, Brent Bourgeois, Baton Rouge, Counsel for AppellanV2nd Appel-lees TCI Turner Corporation.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   KLINE, J.

In this workers’ compensation action, the employer, TCI Turner Corporation (“TCI”), appeals a judgment in favor of claimants, Randy Nuzum and Craig Briga-lia, whose claims were consolidated for trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Randy Nuzum and Craig Brigalia were both employed as pipefitters by TCI at the Marathon Oil Plant in Garyville, Louisiana. On January 19, 1998, both claimants suffered exposure to toxic chemical fumes during the course and scope of their employment at TCI. As a result of the exposure, both claimants suffered a number of medical problems, including upper and lower respiratory injuries, and claimed to be totally disabled. TCI paid indemnity benefits to both.

On February 15, 1999, claimants filed separate disputed claims for compensation with the Office of Workers’ Compensation, basing their claims on TCI’s refusal to authorize recommended medical tests and treatment, and TCI’s refusal of their choice of physician. Claimants asserted that TCI failed and/or refused to pay for the evaluation and treatment by Dr. Thomas Callender, a medical toxicologist and/or occupational medical specialist. They also asserted that TCI further failed to pay for recommended diagnostic treatment and diagnostic testing and studies. Claimants alleged that, in addition to being entitled to payment of all medical treatment by TCI, they were also entitled to penalties and attorney’s fees since employer failed to reasonably controvert those claims and were arbitrary and capricious in denying payment.

TCI denied claimants’ assertions and argued that it had already agreed to pay for treatment and evaluation by Dr. Callender to the extent that it was subject to the fee schedule and was reasonable and necessary. TCI alleged that Crawford & Company, third party administrator for TCI, was awaiting the appropriate insurance forms from Dr. Callender’s office necessary to properly process the medical bills. TCI denied being arbitrary and capricious in its handling and processing of claimants’ claims.

|3On November 20, 2000, the workers’ compensation judge (“WCJ”) ruled that the November 20, 2000 trial date be continued indefinitely and that the claims be stayed pending the outcome of claimants’ third party tort action against Marathon Oil Company, subject to being reactivated upon request of either party. The third party action was dismissed in favor of Marathon Oil Company. On April 9, 2001, claimants filed a motion to re-open the case.

A trial on the merits was held on October 24, 2001. The matter was taken under advisement at that time by the WCJ and, following submission of post trial memo-randa on behalf of the parties, an oral ruling was issued on November 16, 2001. The judgment was signed on December 3, 2001. The judgment of the WCJ stated the following:

(1)[Rjandy Nuzum’s tonsillectomy is found to be related to his workplace chemical exposure. Claimant is entitled to reimbursement of any related medical expenses, including surgery and prescription expenses in accordance with the workers’ compensation fee schedule. Claimant is further entitled to a penalty in the amount of $2,000.00 due to the defendant’s failure to timely pay these benefits. Claimant’s attorney is hereby awarded $4000.00 in attorney’s fees for the defendant’s failure to timely pay these benefits.
(2) [T]he defendant failed to timely pay accident-related medical expenses from Our Lady of Lourdes and Dr. Perret on behalf of both Randy Nuzum and Craig Brigalia. Each claimant is hereby awarded a $2,000.00 penalty for defendant’s failure to timely pay these benefits. Counsel for claimant’s[sic] is hereby awarded $4,000.00 in additional attorney’s fees, reflecting $2,000.00 on behalf of each claimant for these untimely payments.
(3) [T]he defendant did not have grounds to require a HCFA form prior to forwarding payment for numerous medical bills which resulted in the untimely payment of said bills. Each claimant is hereby awarded a $2,000.00 penalty for said untimely payments. Counsel for claimants is entitled to an additional attorney’s fee in the amount of $2,000.00, reflecting $1,000.00 for each claimant due to these untimely payments.
(4) [A]ll healthcare providers who have treated Randy Nuzum and/or Craig Bri-galia for their work-related injuries are only entitled to reimbursement for said treatment in the amount provided for under the fee schedule promulgated by the [OWC]. In the event that either claimant or their counsel has made payment to any such healthcare provider in an amount exceeding that called for in the fee schedule, it is ordered that the claimants and/or their counsel shall be reimbursed the amount of any such overpayment by the respective healthcare providers. Dr. Thomas Callender is specifically excluded from this order given the contract entered between Dr. Callender and counsel for claimants.
(5) [D]efendant shall pay and/or reimburse any prescription expenses related to the claimants’ workplace injuries and 1 ¿symptoms. Within sixty days from receipt of this signed Judgment, it shall be the defendant’s duty to request an updated printout from claimants’ pharmacies (specifically including Eckerds) and forward payment for said accident-related prescription expenses.
(6) [Defendant shall pay judicial interest on all penalties, attorney’s fees and medical benefits awarded herein from the date of Judgment until paid.

TCI appeals the WCJ’s judgment and asserts the following assignments of error:

I. Manifest errors concerning HCFA 1500 form
A. The Office of Workers’ Compensation manifestly erred in finding that the employer did not have grounds to require that healthcare providers (or claimants) submit a HCFA 1500 form prior to payment of medical charges by the employer.
B. The Office of Workers’ Compensation manifestly erred in finding that payments by the employer for medical charges were untimely when the delay for payment of those charges was based solely upon a failure on the part of the claimants and/or their healthcare providers to provide a HCFA 1500 form to the employer.
C. The office of Workers’ Compensation manifestly erred in ordering the employer to pay $6000 in penalties and attorneys’ fees as a result of its finding that the employer could not require submission of a HCFA 1500 form prior to payment of medical charges.
II. Manifest errors concerning Randy Nuzum’s tonsillectomy
A. The Office of Workers’ Compensation manifestly erred in finding that Randy Nuzum’s tonsillectomy was related to his workplace chemical exposure and was reasonably necessary.
B. The Office of Workers’ Compensation manifestly erred in finding that the employer failed to timely pay benefits associated with Randy Nuzum’s tonsillectomy.
C. The Office of Workers’ Compensation manifestly erred in imposing penalties and attorneys’ fees against the employer [for] its failure to pay for Randy Nuzum’s tonsillectomy.

Claimants answer the appeal and assert that the WCJ erred in placing a limitation on the award for medical services provided by Dr. Callender, ordering reimbursement only for the amount allowable pursuant to the workers’ compensation fee schedule, rather than payment for the full amount of actual out-of-pocket expenses incurred by the claimants as a result of Turner’s arbitrary and capricious failure and/or refusal to pay for such treatment.” Claimants also assert that they are entitled to an additional award of attorney’s fees incurred in connection with defending this appeal.

InLAW AND DISCUSSION

Louisiana jurisprudence is clear that in a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737; Washington v. Lyons Specialty Company, 96-0263, p. 6 (La.App. 1 Cir. 11/8/96), 683 So.2d 367, 372, writ denied, 96-2944 (La.1/31/97), 687 So.2d 408. A court of appeal may not set aside a hearing officer’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” Freeman v. Pou lan/Weed Eater, 93-1530 at p. 5, 630 So.2d at 737; Stobart v. State Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one, after reviewing the record in its entirety. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. On legal issues, the appellate court gives no special weight to the factfinder’s conclusions, but exercises its constitutional duty to review questions of law and renders judgment on the record. Chaisson v. Oceanside Seafood, 97-2756, p. 3 (La.App. 1 Cir. 6/29/98), 713 So.2d 1286, 1288.

HCFA 1500 Form

In TCI’s first assignments of error, it asserts that the HCFA 1500 forms it required the physicians to send prior to paying the medical bills are required as a matter of law. TCI argues that the system set up by the Workers’ Compensation Act and the Louisiana Administrative Code requires submission of a HCFA 1500 form by healthcare providers and payment of their charges in amounts set forth in a fee schedule. It reasons that, under La. R.S. 23:1201(E), La. R.S. 23:1034.2, and LAC 40:1.5111, physicians are required to provide a HCFA 1500 form in order to be compensated. TCI cites as support for its argument Kaiser v. Western-Southern Ins. Co., 01-1393 (La.App. 5 Cir. 5/15/02), 821 So.2d 52, where it was found that claimant was not entitled to reimbursement for unsupported or improperly submitted medical bills.

In its reasons for judgment, the WCJ stated that TCI untimely paid many bills because of the lack of HCFA forms. It recognized that the Workers’ Compensation Act does not state that the adjuster can wait for a HCFA form before paying a bill. The Act requires that, once a bill for the work-related injury is submitted, an employer has sixty days to pay that bill. The WCJ noted that most of the bills that were not submitted on HCFA forms had just about everything on the bill except that it was not on the form. The WCJ recognized that only once did Cynthia Cambre the adjuster who handled TCI’s workers’ compensation claims, contact the doctor’s office to get a form. The WCJ determined that Ms. Cambre could have faxed, written, or taken other action in order to get the form. The WCJ found that the Act does not provide for a waiting period beyond the 60 days for a HCFA form. It found that there was no question that the bills were related to the accident or exposure.

Louisiana Revised Statute 23:1201(E) states the following:

Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.

Louisiana Revised Statute 23:1034.2(B) reads as follows:

B. The director shall adopt, in accordance with the Administrative Procedure Act, [footnote omitted] rules and regulations necessary to establish and implement a reimbursement schedule for such care, services, treatment, drugs, and supplies.

Louisiana Administrative Code 40:I.5111(A) states the following:

The HCFA 1500 form is to be used by health care providers except dentist, pharmacy, hospital (unless otherwise stated), and for home and vehicle modifications for billing services provided to workers’ compensation claimant. Do not use any other form. A sample HCFA 1500 claim form and detailed instruction for proper completion of the form follows.

We agree with the WCJ’s determination that the Workers’ Compensation Act does not provide for a specific procedure for how employers receive bills. The Act does refer to the Louisiana Administrative Code regarding the reimbursement schedule, but the Louisiana Administrative Code does not control in terms of |7procedure. Whereas in Kaiser, the fifth circuit referred to the form as a required form, other Louisiana jurisprudence has allowed written notice, as required under La. R.S. 23:1201(E), to be any notice, such as receiving a medical bill from the worker himself or a written request from his counsel. As a result, we decline to find that under the Workers’ Compensation Act, an employer’s sixty day time period does not begin to run until it receives an HCFA form from the physician.

In the instant case, testimony was provided regarding the bills provided by Dr. Callender, a physician who treated both claimants. Ms. Cambre testified that, when she receives bills, she sends them to a company called AR2000 that reviews the bills and reduces them according to the workers’ compensation fee schedule. She indicated that there were times when the pharmacy might have called regarding a prescription and she did not know the purpose of the prescription, so she would call the doctor’s office to get that information. She stated that she had difficulty getting HCFA forms from Dr. Callender’s office. At times she would call the doctor’s office and request a copy of the HCFA forms. She identified a bill received on March 4, 2000 and indicated the bill was for services rendered from January 1999 to November 1999. The bill received on April 3 was for March 20 and March 21 services. She admitted she had not paid those bills and she could not offer an explanation for why they were not paid. She acknowledged a bill from Dr. Callen-der for services rendered on May 27, 2000 for Mr. Nuzum that had not been paid. She did not realize until the day before trial that the HCFA form was not in the file and that the bill had not been paid. The HCFA form was received October 30, 2000, and the bill was paid December 1, 2000. She had, at some point, written two letters to Dr. Callender’s office requesting HCFA forms. There were several bills that she received that were not paid and she could offer no reason why they were not paid.

On cross examination, Ms. Cambre stated that it was TCI’s practice to not pay a bill until she received a HCFA form. She stated that as she understood it, she had sixty days from receiving the appropriate bill in order to process a medical bill, with the exception of prescriptions. She did not do anything in order |sto get a HCFA form from Dr. Callender regarding the May 27 bill. She also did not recall paying for any prescription medication that Dr. Callender prescribed for both claimants. She had no explanation for why Blaxin or Arpavirene for Mr. Nuzum was not paid, and she admitted that she had not followed up when she could have called the pharmacist. She had no explanation as to why there was no payment on drugs prescribed for Mr. Brigada by Dr. Peters. A letter was sent from claimants’ counsel with a September 11, 2000 bill attached and faxed. She admitted having knowledge of the bill on September 19, 2000. She identified a bill paid for Dr. Davis’ treatment well after 60 days. She stated that the reason they require the HCFA form is because it has the diagnosis codes and procedure codes. She stated that she could have called Dr. Peters’ and Dr. Davis’ offices to obtain the appropriate codes but that would have been time consuming.

After a review of the record, we find that the WCJ committed no manifest error in finding that TCI untimely paid certain medical bills for both claimants and that TCI had not paid other bills that were related to the instant case. We find that the WCJ was not manifestly erroneous in determining that TCI had written notice of the bills, to be paid, and that they were arbitrary and capricious in deciding not to pay those medical bills. TCI cannot use the fact that they did not receive HCFA 1500 forms as a reasonable basis for not paying medical bills, when they received written notice through counsel for the claimants. An award of attorney fees is appropriate when the employer and/or insurer acted arbitrarily, capriciously, or without probable cause in discontinuing payment of workers’ compensation benefits. La. R.S. 23:1201.2. Whether or not the refusal to pay benefits warrants the imposition of attorney fees is a factual matter that will not be disturbed on appeal in the absence of manifest error. Hughes v. Carroll Timber Co., 96-0031, p. 8 (La. App. 1 Cir. 10/1/96), 694 So.2d 331, 336. The assessment of penalties is determined by inquiring whether the employer or its insurer has “reasonably controverted” the compensation claims. La. R.S. 23:1201(F)(2); Henderson v. New Medico Associates, Inc., 95-0488, p. 9 (La.App. 1 Cir. 11/9/95), 667 So.2d 1094, 1099, writ denied, 96-0505 (La.4/8/96), 671 So.2d 338. We have thoroughly reviewed the record and cannot say that the |3WCJ was manifestly wrong in finding that the nonpayment of the unpaid medical expenses did not result from conditions beyond TCI’s control or in concluding that the right to these medical benefits was not reasonably controverted, which warranted the imposition of penalties. We find that TCI’s assignments of error regarding the HCFA 1500 forms cannot prevail.

Tonsillectomy

TCI also asserts that the WCJ erred in finding that Mr. Nuzum’s tonsillectomy was necessary as a result of a work-related injury. As a result, it also argues that the WCJ erred in assessing a penalty and attorney’s fees.

Ms. Cambre initially testified that she did not see any reports from Dr. Peters saying that the tonsillectomy was related to the incident. As a result, she did not approve the tonsillectomy procedure. She stated that the day before trial was the only time she had become aware that Mr. Nuzum had submitted to the tonsillectomy. She did not receive any bills concerning it. However, she admitted to regularly receiving reports and notes from Dr. Peters on this claim. She knew that the tonsillectomy had been recommended many months ago.

Dr. Peters first saw Mr. Nuzum on March 23, 1998. At that time Mr. Nuzum gave a history indicating that he had inhaled some caustic soda and hydrofluoric acid and was complaining of sinusitis, sore throat, and ear pressure. He also indicated that he had no nasal or sinus symptoms prior to the exposure. After an examination, Dr. Peters determined that Mr. Nu-zum had a deviated nasal septum and some nasal congestion. He was noted to have some purulent puss looking material draining out of his nose as well as having hypertrophy, or swelling of the membranes of the nose, consistent with sinusitis. His symptoms were consistent with exposure to a caustic and irritating substance. Mr. Nuzum was treated with multiple medications. Dr. Peters indicated that certain surgical procedures were recommended. Mr. Nuzum had similar symptoms to Mr. Brigalia. He also, however, suffered with sleep apnea and snoring associated with markedly enlarged tonsils. Dr. Peters stated that, because Mr. Nuzum was a big gentleman who had enlarged tonsils and a big neck, there was a tendency to make the tissues collapse inward when he relaxes and goes to sleep, thus h (¿resulting in problems with breathing. It may have no relationship to the exposure, but if a person has enlarged tonsils or any kind of blockage in the throat and his nose is blocked off as well, one tends to have greater problems with breathing and snoring. He did state that he thought Mr. Nuzum’s tonsil problem is separate from his nasal blockage. If he took out the tonsils and worked on the palate and left the nose blocked up, chances were Mr. Nuzum’s snoring and apnea would not be totally improved or improved at all. Mr. Nuzum testified that prior to the exposure he had no problem with snoring or sinuses.

The WCJ indicated in its oral reasons for judgment that it found that Mr. Nu-zum’s tonsillectomy was related to the exposure. The WCJ indicated that the relationship between the tonsillectomy and the exposure was so obvious that it was disheartened that Ms. Cambre did not pay for the procedure. According to the WCJ, it was accepted that Mr. Nuzum had no problems with either his tonsils or his sleeping before the exposure, and had very similar symptoms to Mr. Brigalia, who suffered the same exposure. The WCJ also noted that it was not reasonable for Ms. Cambre to find that the tonsillectomy was not related and to refuse to pay for the tonsillectomy strictly based on a note from Dr. Peters’ office by some staff person that said it was not related. The WCJ referenced the deposition of Dr. Peters as supporting and contributing to its reasons for its finding. As a result, the WCJ determined that the tonsillectomy was related and that TCI should pay for all medical expenses related to the tonsillectomy according to the fee schedule. As a result of not finding any reasonable grounds for TCI’s refusal to pay, attorney’s fees and penalties were awarded.

TCI contends that the WCJ erred in awarding attorney’s fees and penalties. TCI cites Howard, v. Our Lady of the Lake Regional Medical Center, 99-1826 (La. App. 1 Cir. 9/22/00), 768 So.2d 293, as authority for its assertion that there can be no penalties awarded for a failure to authorize treatment. Although TCI is correct in its interpretation of the law as stated in Howard, the Louisiana Supreme Court, in Authement v. Shappert Engineering, 2002-1631 (La.2/25/03), 840 So.2d 1181, 2003 WL 536744, settled a conflict within the circuits regarding this issue. Whereas the First Circuit inj¿¡Howard did hold that a failure to authorize medical treatment does not provide grounds for penalties and attorney’s fees, the Supreme Court determined that all other circuits recognized that the failure to authorize a medical procedure for an employee eligible to receive workers’ compensation is deemed to be the failure to furnish compensation benefits warranting penalties and attorney fees under LSA-R.S. 23:1201. The Louisiana Supreme Court, after a thorough analysis of the law in Authement, concluded that a failure to authorize treatment can result in the imposition of penalties and attorney fees except when the claim is reasonably controverted. Depending on the circumstances, a failure to authorize treatment is effectively a failure to furnish treatment. Authement, 2002-1631 at p. 5, 840 So.2d at 1185. Therefore, this appellate court yields to Authement on this issue.

Whether the imposition of penalties and attorney’s fees is warranted is a factual question that will not be disturbed upon review in the absence of manifest error or unless clearly wrong. See Haws v. Professional Sewer Rehabilitation, Inc., 98-2846, p. 10 (La.App. 1 Cir. 2/18/00), 763 So.2d 683, 690-691. After a thorough review of the record, we affirm the WCJ’s ruling relative to the tonsillectomy.

Claimants’ Counsel’s Reimbursement

Claimants assert that the WCJ erred in placing a limitation “on the award for medical services provided by Dr. Cal-lender, ordering reimbursement only for the amount allowable pursuant to the workers’ compensation fee schedule, rather than payment for the full amount of actual out-of-pocket expenses incurred by the claimants as a result of Turner’s arbitrary and capricious failure and/or refusal to pay for such treatment.” As a result, claimants contend that they are entitled to penalties and attorney’s fees in connection with this appeal.

The WCJ determined that claimants’ counsel entered into a contract with Dr. Callender regarding the payment of Dr. Callender’s fees. Claimants’ counsel paid Dr. Callender’s office the full amount for certain medical bills, rather than the lesser amount that would have been due under the fee schedule. The WCJ chose not to award claimants’ counsel a reimbursement amount by TCI over and above the fee schedule amount, regardless of the amount claimants’ counsel | i?paid. It did, however, order that the doctors pay back to claimants’ counsel any amount over the fee schedule. We make no comment on the efficacy of that ruling. After a thorough review of the record, we can find no manifest error in the WCJ’s findings.

CONCLUSION

For the above-stated reasons, the judgment of the WCJ in favor of the claimants, Randy Nuzum and Craig Brigalia, and against TCI Turner Corporation, is hereby affirmed. Costs are assessed against defendant.

AFFIRMED.

On Application for Rehearing

t KLINE, J.

Pursuant to plaintiffs’/appellees’ application, a rehearing is granted for the limited purpose of addressing plaintiffs’/appellees’ answer to the appeal requesting an additional award of attorneys fees for defending the appeal.

The plaintiffs’/appellees’ are awarded the sum of $1,500.00 additional attorney fees for the consolidated appeal.

In all other respects the original judgment is maintained.

/s/ Frank Foil

JUDGE FRANK FOIL

/s/ Page McClendon

JUDGE PAGE MCCLENDON

/s/ William F. Kline, Jr.

JUDGE PRO TEMP. WILLIAM F. KLINE, JR.

      . See Spencer v. Gaylord Container Corporation, 96-1230, p. 15 (La.App. 1 Cir. 3/27/97), 693 So.2d 818, 829.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Rocky Wayne DAVID v. OUR LADY OF THE LAKE HOSPITAL, INC.
    No. 2002 CA 1945.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Rehearing Denied Aug. 25, 2003.

      Keith Jones, Baton Rouge, Counsel for Plaintiff/Appellee Rocky Wayne David.
    Erick Y. Miyagi, Baton Rouge, Counsel for Defendant/Appellant Our Lady of the Lake Hospital, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

In this strict products liability action, defendant, Our Lady of the Lake Hospital, Inc. (OLOL), appeals the trial court’s judgment in favor of plaintiff, Rocky Wayne David. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In August of 1979, David was admitted to OLOL to undergo surgery to remove kidney stones. Following the surgery, on August 16, 1979, David received a blood transfusion. The blood for the transfusion was provided to David by OLOL pursuant to an order from David’s treating physician. Thereafter, in February of 1998, David applied for a life insurance policy, whereupon he submitted to a series of tests and blood work. As a result of these tests, David discovered that his liver enzymes were elevated, and later, that he had hepatitis C.

On February 10, 1999, David filed a petition for damages, alleging that OLOL sold defective blood to him. Thereafter, on September 15, 2000, OLOL filed a peremptory exception raising the objection of prescription. A hearing on the exception was held on November 13, 2000, whereupon the trial court denied OLOL’s exception. A trial on the merits was held on May 30, 2002. In a judgment rendered in open court on July 15, 2002, and signed on August 7, 2002, the trial court found in favor of David and awarded damages in the amount of $2,319,500.00. OLOL now appeals this judgment, and asserts as error: the trial court’s finding of strict liability against OLOL, the trial court’s failure to apply the comment k defense found in the Restatement (Second) of Torts § 402A, the trial court’s failure to find that OLOL met its burden in establishing the requisite 1 ¡¡elements of the comment k defense, and the trial court’s award of $2,319,500.00 in damages.

DISCUSSION

Strict Liability

In DeBattista v. Argonaut-Southwest Insurance Company, 403 So.2d 26, 31-32 (La.1981), the Louisiana Supreme Court recognized health care providers’ exposure to strict products liability claims arising out of defective blood transfusions, reasoning that “[a] distributor of blood is strictly liable in tort when blood he places on the market creates an unreasonable risk of harm to others and, in fact, results in injury or disease to a human being.” With this decision, Louisiana became one of the handful of states that imposed strict liability on hospitals for defective blood transfusions. Williams v. Jackson Parish Hospital, 00-3170, p. 5 (La.10/16/01), 798 So.2d 921, 925; see also Shortess v. Touro Infirmary, 520 So.2d 389 (La.1988).

The record evidences that at the time David received his blood transfusion, while hepatitis C was not known to exist at the time, OLOL was aware of the risk that blood contained a non-A/ non-B hepatitis virus. Thereafter, in 1998, David discovered that he had hepatitis C. David’s treating physician, Dr. Mark Anderson, indicated that the only risk factor David exhibited for hepatitis C was the blood transfusion he received in 1979. As such, we find no error in the trial court’s determination that David contracted hepatitis C from the defective blood purchased from OLOL in 1979.

However, OLOL contends on appeal that based on comment k to the Restatement (Second) of Torts § 402A, it presented a defense to David’s claim for Rstrict liability. Comment k to the Restatement (Second) of Torts § 402A, entitled “unavoidably unsafe products” states:

There are some products, which in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use.... Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.... The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

In its reasons for judgment, the trial court stated that it found the blood at issue in the instant case was not unavoidably unsafe, and that comment k to the Restatement (Second) of Torts was not applicable to this case. While we disagree that comment k is not applicable to the instant case, we do find that based on the facts and circumstances as contained in the record, that the trial court was reasonable in finding that the blood át issue was not unavoidably unsafe.

In Seal v. St. Tammany Parish Hospital Service District No. 1, 00-1489 (La.6/30/00), 765 So.2d 1057, the supreme court reversed a judgment of this court wherein the comment k defense was used to grant summary judgment in favor a defendant, dismissing plaintiffs cause of action for strict liability. In reversing this court, the supreme court adopted the reasons assigned by Judge Weimer in his dissenting opinion, which stated in part that “the plaintiffs are entitled to submit their case based on a theory of strict liability and the defendants are entitled to present a defense relative to whether a blood transfusion, given in 1973, which is alleged to be the cause of plaintiffs Hepatitis C, was ‘unavoidably unsafe.’ ” Seal, 00-1489, 765 So.2d 1057.

Following the supreme court’s decision in Seal, the fourth circuit court of appeal, in Chauvin v. Sisters of Mercy Health System, St. Louis, Inc., 01-1834, pp. 10-12 (La.App. 4 Cir. 5/8/02), 818 So.2d 833, 840-841, writ denied, 02-1587 (La.9/30/02), 825 So.2d 1194, applied the “unavoidably unsafe” defense from comment k to a plaintiffs claim against a hospital for her contraction of hepatitis C from a 1963 blood transfusion. The court in Chauvin relied on four criteria for determining whether a blood product is unavoidably unsafe, and therefore, not unreasonably dangerous: (1) the nonexistence of any scientific test capable of detecting the viral agent which contaminated the blood at the time of injury; (2) the great utility of the product; (3) the lack of any substitute for the product; and (4) the relatively small risk of the disease being transmitted by the product. Chauvin, 01-1834 at 11, 818 So.2d at 840. The court in Chauvin further emphasized that not only was there no test in 1963 capable of detecting the viral agent, but that the existence of the viral agent itself, hepatitis C, was unknown at that time. Chauvin, 01-1834 at 11, 818 So.2d at 840.

While we recognize that we are not bound by the fourth circuit’s decision, we find that, in light of the supreme court’s pronouncement in Seal, and the similar facts as contained in the record of the instant appeal, it was error for the trial court to find that the comment k defense did not apply to the instant case. However, based on the trial court’s further analysis of the “unavoidably unsafe” comment k defense criteria, we find that this error of law did not interdict the fact-finding process, and therefore a de novo review is not warranted. See Evans v. Lungrin, 97-0541, 97-0577 pp. 6-7 (La.2/6/98), 708 So.2d 731, 735. As such, based on our review of the record before us, we do not find that the trial court manifestly erred in determining that OLOL did not establish the requisite elements of the comment k defense so as to warrant the finding that the blood at issue was unavoidably unsafe.

As outlined previously, a predicate to the application of the “unavoidably | fiunsafe” comment k defense, is that the product was properly prepared and was accompanied by proper warning. Rest. (Second) Torts, Sec. 402A, comment k. At trial, the only evidence admitted as to the collection and preparation of the blood in the OLOL blood bank was the testimony of Dr. Jack Holden, the head of the pathology department in 1979. Dr. Holden testified to the fact that the blood donors were interviewed, using a prepared list of questions, and that other factors, such as the physical appearance of an individual, whether the donor was a known past donor, and the interviewer’s feelings about the donor were also considered. However, the trial court specifically found Dr. Holden not to be a credible witness based on the gratuitous statements rife throughout his testimony. Because no other testimony from OLOL personnel or evidence of blood donor records/questionnaires was admitted into evidence at trial, we find no error in the trial court’s determination that OLOL failed to prove that it properly screened (prepared) the blood transfused to David, and therefore failed to meet its burden in establishing a comment k defense.

Damages

OLOL also contends on appeal that the amounts awarded for past and future earning capacity, past and future mental pain and suffering, and past and future emotional distress, including fear of cancer and loss of enjoyment of life, constitute an abuse of the trial court’s discretion. However, before an appellate court can disturb an award made by a trial court, the record must clearly show that the trier of fact abused its much discretion in making the award. The initial inquiry is whether the trial court’s award for the particular injury to the particular plaintiff under the particular circumstances was a clear abuse of the trial court’s discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

|7According to the record before us, we do not find that the trial court abused its discretion in awarding $197,000.00 for loss of past and future earning capacity to David. A loss of earning capacity award is not predicated merely upon the difference between a plaintiff’s earnings before and after a disabling injury, but also encompasses the loss of one’s earning potential or capacity, that is the loss or reduction of a person’s capability to do that for which he is equipped, by nature, training, and experience. Thibodeaux v. USAA Casualty Insurance Company, 93-2238, p. 15 (La.App. 1st Cir.11/10/94), 647 So.2d 351, 360. While no expert was called to testify as to David’s earning capacity, David and his treating physicians testified as to the probable effects of his disease on his future ability to work. At the time of trial, David was 52 years old. David’s treating physicians, in particular, Dr. Anderson, testified that at some point, David’s liver disease will progress to decompensated cirrhosis and he will no longer be able to work a full day. Further, the doctors testified that the progressed cirrhosis would likely result in decreased mental functioning, which would preclude David from working as a pharmacist. David testified that he has no disability insurance or other means of income if he were unable to work. The evidence shows that at the time of trial, David was earning approximately $76,000.00 per year. Therefore, in light of this evidence, we do not find that the trial court abused its discretion in awarding $197,000.00 for loss of past and future earning capacity.

Additionally, based on our review of the record, we do not find that the trial court abused its discretion in awarding $632,000.00 for past and future mental pain and suffering and $895,000.00 for past and future emotional distress, including fear of cancer and loss of enjoyment of life. David testified at trial that he suffered insomnia and fatigue as result of the hepatitis C. David further stated that at times, the insomnia was so bad that he would be unable to sleep for three to four days at a time. Additionally, David stated that he cannot engage in sporting activities with |Rhis sons because he was too tired, and that he has not attempted to engage in a relationship with anyone because, due to his condition and prognosis, he does not feel that it would be fair to that person.

David’s treating physician, Dr. Anderson, stated that David is a high risk patient because he has not responded to the treatments thus far. Additionally, Dr. Anderson stated that he expects David’s life prognosis to be determined by his liver disease, and that he expects David to die of complications of his hepatitis C if he does not undergo a transplant or have a sustained response to treatment. Dr. Anderson also detailed other severe complications, which David will more than likely suffer as his liver disease progresses, such as brain disfunction, upper gastrointestinal bleeding, and fluid in his abdomen. Further, Dr. Anderson testified that David will likely need a liver transplant, which will reduce his quality of life. Finally, Dr. Anderson testified that even if David underwent a liver transplant, the hepatitis C would still be in his system, and would reinfect the new liver at a faster rate, causing David to suffer similar symptoms again.

In addition to Dr. Anderson’s testimony, Dr. David Raiford also indicated that David, due to the cirrhosis of his liver, is at increased risk for developing liver cancer. David testified that the fear of developing decompensated cirrhosis and the fear of developing cancer is something that concerns him and something that he thinks about all the time. Therefore, based on the record before us, and the unique facts and circumstance of this case, we find that the trial court did not abuse its discretion in awarding $632,000.00 for mental pain and suffering and $895,000.00 for emotional distress, fear of cancer, and loss of enjoyment of life.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All 1 scosts of this appeal are assessed against the defendant, Our Lady of the Lake Hospitals, Inc.

AFFIRMED.

FITZSIMMONS, J., agrees and assigns additional reasons.

11 FITZSIMMONS, J., assigning additional reasons.

I respectfully write to assign additional reasons. While I agree with the opinion, my concern is for the victims who may have been dissuaded from suit by the Boutte decision. However, I note that the application of the rule of prescriptive suspension, to the short period of time between the Boutte and Williams decisions, would attempt to provide reasonable relief for any apparent injustice. See La. C.C. art. 3472.

      . OLOL filed for a writ of supervisory review with this court. On February 9, 2001, this court granted OLOL’s writ application, reversing the trial court's judgment denying OLOL’s exception raising the objection of prescription and granting the motion in favor of OLOL. While this case was pending before the trial court, David filed a writ application with the Louisiana Supreme Court on March 9, 2001. On May 11, 2001, the supreme court issued an order granting David’s writ application, and remanded the matter to this court for a full opinion. On September 27, 2002, this court issued an opinion, denying OLOL’s writ application. OLOL filed a writ application with the supreme court, which we note is pending.

      . OLOL also asserts as error the trial court's refusal to dismiss David’s claim as prescribed. However, not only did OLOL not brief this issue on appeal, but also, this court has previously ruled on this issue pursuant to a writ application and issued a full opinion upon remand from the supreme court. Therefore, we find this assignment of error is not properly before this court at this time.

      . The case further indicates that at the time of that blood transfusion, the existence of non-A/ non-B hepatitis was also unknown.


author: PARRO, J.

text:
    Michael MURPHREE and Robin Corona v. Richard DAIGLE, State of Louisiana, Through the Department of Transportation and Development and Parish of Ascension.
    No. 2002 CA 1935.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      A.J. Rebennack, Stephen C. Juan, New Orleans, for Plaintiff-Appellee Tristem Murphree.
    Richard Daigle, Prairieville, In Proper Person.
    John H. Ayres, III, Assistant Attorney General, Baton Rouge, for Defendant-Appellant State of Louisiana, through the Department of Transportation and Development.
    Before: PARRO and McDONALD, JJ., and IAN W. CLAIBORNE, J. Pro Tern.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   PARRO, J.

The State of Louisiana, through the Department of Transportation and Development (DOTD) appeals a judgment finding it was 80% at fault for damages due to a motorcycle accident that occurred when a tree limb fell onto a state highway in the path of the bike, causing the driver, Michael Murphree, and his passenger, Robin Corona, to be thrown from the vehicle and to suffer personal injuries. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On July 11, 1998, at approximately 2:00 a.m., Murphree and Corona left the Hole Shot Saloon in Ascension Parish, where both had been drinking for several hours, and went riding on his motorcycle on Highway 621. They were traveling about 45-50 miles per hour when a large branch from a mature water oak tree fell onto the road just in front of them, leaving Mur-phree no chance to stop or avoid hitting it. As a result of the collision, he and Corona were thrown from the motorcycle. Although Corona was not severely injured, Murphree sustained brain damage for which surgery was required; he lost the senses of taste and smell, lost hearing in his right ear, broke several ribs, smashed his left wrist, and injured his right eye. His medical expenses totaled $75,598.89.

Highway 621 is a state highway, and therefore, is maintained by DOTD. The tree from which the limb fell is not growing in the state’s right-of-way, but is situated with most or all of its trunk on private property belonging to Richard Daigle. However, some of its branches do hang over the highway. The branch that fell was rotten, although the rest of the tree appeared to be in good health, with no observable insect damage, lightning damage, dead leaves, bark damage, or dead branches.

Murphree and Corona eventually filed suit against DOTD and Daigle. While the suit was pending, Murphree died from unrelated causes and his son, Tristem Mur-phree, was substituted as plaintiff. Shortly before trial, the plaintiffs stipulated that their [¡¡damages did not exceed $50,000, so the case went to a bench trial instead of a jury trial. After trial on the merits, finding Murphree’s damages were in excess of $675,000, but recognizing the $50,000 stipulation, the court entered judgment in the amount of $50,000 against DOTD, finding Murphree was 20% at fault and DOTD was 80% at fault in the accident.

DOTD appeals, assigning the following errors in the trial court’s judgment. First, DOTD contends the court erred in finding DOTD had notice or constructive notice of an unreasonably dangerous condition, given the fact that plaintiffs’ expert admitted the tree from which the branch fell appeared outwardly healthy to cursory visual inspection. Second, DOTD claims the court erred in finding the tree was unreasonably dangerous, simply because of its inherent characteristics as a mature water oak. Finally, DOTD argues in the alternative that, if the tree did present an unreasonably dangerous condition, the court erred in failing to apportion some degree of fault to the landowner on whose property the tree was situated.

APPLICABLE LAW

When trees are outside the right-of-way, they are outside the ownership or “garde” of the entity charged with maintaining the highway. Accordingly, strict liability under Louisiana Civil Code article 2317 is inapplicable and simple negligence principles apply. See also LSA-C.C. art. 2317.1. Under those principles, to establish a breach of DOTD’s duty to maintain safety for the motoring public, a plaintiff must show that a hazardous condition existed and that DOTD had actual or constructive knowledge of said condition, but failed to take corrective action within a reasonable time. See Briggs v. Hartford Ins. Co., 532 So.2d 1154, 1156 (La.1988). “Constructive notice” in negligence cases exists when the defect or condition has existed for such a period of time that it would have been discovered and repaired had the public body exercised reasonable care. Lutz v. City of Shreveport, 25,801 (La.App. 2nd Cir.5/4/94), 637 So.2d 636, 639, writ denied, 94-1487 (La.9/23/94), 642 So.2d 1294; Morris v. State, Dept. of Transp., 94-2545 (La.App. 1st Cir.10/6/95), 664 So.2d 1192, 1196, writ denied, 95-2982 (La.2/9/96), 667 So.2d 537.

The ultimate determination of whether a condition creates an unreasonable risk of harm is subject to review on appeal under the manifest error standard. Under this standard, the trial court’s findings are reversible only when there is no reasonable factual basis for the conclusions, or if they are clearly wrong. Dennis v. The Finish Line, Inc., 99-1413 (La. App. 1st Cir.12/22/00), 781 So.2d 12, 21, writ denied, 01-0214 (La.3/16/01), 787 So.2d 319. Similarly, the question of whether or not DOTD had actual or constructive notice of a hazardous condition creating a risk for motorists is a factual issue and is reviewed under the manifest error standard. See Brown v. Louisiana Indem. Co., 97-1344 (La.3/4/98), 707 So.2d 1240, 1244. On the other hand, the existence of a duty is an issue of law which is determined by the court. Meany v. Meany, 94-0251 (La.7/5/94), 639 So.2d 229, 233. On this issue, the inquiry is whether the plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support his claim. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La.App. 1st Cir.5/9/03), 849 So.2d 622, 627.

ANALYSIS

The trial court’s written reasons for judgment in this case provide the following basis for its decision to impose liability on DOTD:

As per the testimony of Plaintiffs’ expert, Dr. Todd Shupe, the branch at issue was rotten for at least two (2) years prior to Plaintiff Michael Mur-phree’s accident. Shupe believes that a reasonably prudent DOTD inspector should have seen the generalized condition of the tree and noticed that it was potentially a problem and that the tree needed trimming and/or removal. Shupe opined that water oaks are prone to rotting and falling branches more so than other types of trees. The State had a duty to recognize this especially since the trees and their branches offshoot the highways of Ascension Parish. Shupe believes that water oaks should not be planted next to a roadway because of their propensity to rot and fall.
The duty of DOTD is to observe and remove trees that are dead or leaning or otherwise appear defective by general observation.

After reviewing the record in this case, we conclude that the supreme court’s discussion in the Thompson case of the state’s potential liability under these circumstances mandates reversal of the judgment in this case. See Thompson v. State, 97-0293 (La.10/31/97), 701 So.2d 952. In Thompson, an accident occurred when a tree limb hanging down into the plaintiffs lane of travel contacted his windshield, causing him to lose control of his vehicle. In analyzing the findings of the district court, the supreme court noted that the record fully supported the finding that DOTD had notice that tree limbs extended over the highway. However, the supreme court added that the district court did not find, nor did the record support a finding, that DOTD had actual or constructive notice of the limb that was hanging down into the southbound lane, which the Thompson vehicle struck. Additionally, the court stated:

Furthermore, there is no evidence that the limb which contributed to this accident was noticeable or discoverable pri- or to the accident as a limb about to sag down into the lane of travel. Therefore, given the trial court’s finding that the state had notice of only the living limbs overhanging the road, the trial court determined the living limbs themselves to be a defect and he also found that the state has a duty to trim and remove all branches which extend over the highway. Under the trial court’s ruling, in order to protect against the risk posed by this particular limb the state would have had to have removed all of the overhanging limbs.
The duty imposed by the trial court— that the state should remove all limbs which might fall on the road — is an incorrect application of the law.

Thompson, 701 So.2d at 955.

The court further stated, “Conversely, where an object or hazard has entered the path of traffic or manifests some indication that it is likely to fall into the roadway, then DOTD will have a duty to remove such hazard providing it has notice.” Thompson, 701 So.2d at 956 n. 3 (emphasis added). Noting that DOTD had been held liable in some cases for its failure to discover and remove dead trees beyond its right of way, the court explained:

In these cases the risk to be protected against is a tree falling onto a highway and obstructing it or striking a passing vehicle. The state’s duty to protect against this risk is to inspect for dead trees and remove them within a reasonable time. The state is not required to inspect for all trees which could fall on the road and remove them simply because they have the potential to fall onto the road.
Similarly, the state’s duty with respect to the limbs was to inspect them, as they inspect roadside trees, by looking for dead limbs or those which manifest some other indication that they are likely to fall into the roadway and to remove such limbs within a reasonable time. This court has rejected a finding of liability against the state where a dead tree which fell onto a highway was not discovered by the DOTD due to the 1 fipresence of other trees which obscured the view of the dead tree and the presence of bark on the lower portion of the trunk. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311.

Thompson, 701 So.2d at 956.

The case we are reviewing involves not just the risk presented by overhanging limbs, as in the Thompson case, but also the other situation discussed in that case of the risk of a limb falling onto the highway directly in the path of an oncoming vehicle. As noted by the court in Thompson, DOTD’s duty in that circumstance is to inspect for dead trees or dead limbs “or those which manifest some other indication that they are likely to fall into the roadway” and remove them within a reasonable time. Although the trial court in this case correctly described that duty, “to observe and remove trees that are dead or leaning or otherwise appear defective by general observation,” our review of the record does not reveal a factual basis for the court’s conclusion that DOTD breached its duty.

The record clearly shows that this branch was not lying in the road for any period of time before Murphree hit it. Murphree testified in his deposition that he was riding his motorcycle down Highway 621 when:

[i]t looked to me a tree just come out of nowhere, fell down right in front of me.... I saw the tree coming down, a limb or whatever it was. I hit my brakes and I hit the tree. It was approximately eight to ten feet in front of me when it fell.

There was no time for Murphree to avoid hitting the branch and certainly no time for DOTD to have actual or constructive notice of its presence and remove it. Therefore, in order to impose liability on DOTD, the record must show that the defective condition of the tree or limb had existed for such a period of time that it would have been discovered and remedied if DOTD had exercised reasonable care.

Albert Shields, Jr., a parish highway maintenance superintendent for DOTD, whose responsibility included the section of Highway 621 where the accident occurred, testified that he inspected that highway at least once a week for anything that would be detrimental to the safety of the motoring public, including such things as potholes, dips in the roadway, low shoulders, rotten trees, or bumps in the highway. With reference 17to the condition of roadside trees, he said he visually inspected them while driving about 25 miles per hour along the shoulder, looking for rotten leaves, a rotten tree trunk, or. a canopy that was not green when it should have been. If he saw anything like that, he would stop, get out of his truck, and thoroughly inspect the tree from beneath it. If he confirmed there was a problem, he took the necessary steps to have dead limbs pruned or the entire tree removed. He would make a similar inspection if a complaint came in to DOTD concerning a particular tree. Shields stated there was no prior complaint concerning the tree from which the limb fell in this case. He said he knew that water oaks tended to rot from the inside, but his visual inspection of water oaks was the same as with any other tree.

Warren E. Peters testified as an expert in forestry on behalf of DOTD. He testified that several years after the accident, in addition to making a careful visual inspection of the tree from which the branch had fallen, he took a hammer and beat on the trunk to determine from the sound whether there was any significant interior decay in the tree, and detected none. He said there was no insect infestation and no visible rot, and the canopy of the tree was in pretty good shape. Peters acknowledged that a water oak could appear healthy on the outside, but be rotten on the inside, and that once they reach about 50 years old, like this tree, water oaks have a greater propensity to drop limbs than other trees. However, Peters emphasized that the water oak is one of the most common hardwood or deciduous trees in the state of Louisiana and, short of cutting, all roadside trees, there was no practical way to eliminate water oaks from the Louisiana roadsides.

Todd Shupe testified on behalf of the plaintiffs as an expert in forestry and wood science. He stated that water oaks are prone to rotting and falling branches, and estimated that it would have taken at least two years of decay for the branch that fell to be in such a condition. However, he also said the fact that the branch fell indicates “either the wind was extremely high or the severity of the decay was extremely great or a combination of the two.” He opined that it would be a bad idea to have a water oak situated where its branches protruded over the road, because of the water oak’s | ¡¿propensity for decay when the tree reaches advanced age. But he admitted that even when he conducted his inspection of the tree, he saw no rotten places in the tree bark, no visible external rot, and no insect infestation. In addition, the canopy and trunk of the tree appeared healthy.

Shupe’s comments are within his area of expertise and were properly accepted and relied upon by the court as expert opinion on the subject. However, the court summarized Shupe’s opinion with the following comment:

Shupe believes that a reasonably prudent DOTD inspector should have seen the generalized condition of the tree and noticed that it was potentially a problem and that the tree needed trimming and/or removal.

There are some problems with this observation. First, Shupe did not actually say this. He did not say that a reasonably prudent DOTD inspector should have noticed something in the generalized condition of this particular tree that would require such attention. On the contrary, he said that other than the obviously rotten condition that was exposed on the stub of the limb that fell, even his on-the-ground careful visual inspection revealed a generally healthy tree. In all of Shupe’s testimony, the closest he got to making such a statement was that he would not be comfortable rendering an opinion about a mature water oak unless he got out, looked at it, walked around, touched it, and stood up under it — and “it would [behoove] the individual based on the species, the size, and the location of that tree to get out of the vehicle and do some on-the-ground inspection of that tree.” Shupe’s comments suggest that there is a higher inspection duty, based on the species of tree involved, rather than on anything that might be visually apparent when driving slowly alongside the road.

We believe the trial court’s conclusion in this case implicitly imposed a higher degree of duty on DOTD than is reasonable or has been required by the supreme court. The court’s decision in this case allows only three possible courses of action for DOTD to avoid potential liability. The first is to remove all mature water oaks from the roadsides, simply because they have the potential to shed branches. The supreme court rejected this in Thompson, when it said “[t]he state is not required to inspect for all trees which could fall on the road and remove them simply because they have the potential to fall onto the road.” Thompson, 701 So.2d at 956. The second alternative would be to remove all overhanging branches, a requirement that was also explicitly rejected in the Thompson case. “The duty imposed by the trial court — that the state should remove all limbs which might fall on the road — is an incorrect application of the law.” Thompson, 701 So.2d at 955. The only other option would be for DOTD’s inspectors to conduct a walking, on-the-ground inspection of every mature water oak along every Louisiana state highway if there were any branches located where they could fall onto the highway, even if those trees were not within the right-of-way. This is an unreasonable requirement. Furthermore, in Lewis v. State Through Dept. of Transp. and Dev., 94-2370 (La.4/21/95), 654 So.2d 311, the supreme court rejected the “under the tree” method as the only reasonable inspection procedure and did not impose liability when DOTD’s drive-by inspections had faded to detect the presence of a dead tree because it was obscured by foliage created by two contiguous trees. Lewis, 654 So.2d at 314 n. 5 and 315. The rejection of this increased level of scrutiny was cited with approval in the Thompson case. Thompson, 701 So.2d at 956.

Based on our review of the record, therefore, we conclude that the trial court legally erred by implicitly imposing a more onerous duty on DOTD than that required by law. We further conclude that there is no reasonable factual basis in the record for a finding that DOTD had actual or constructive notice of the defective limb, given that we find the inspection method used by DOTD conformed to what it was legally and reasonably required to do in order to discover such a defect. Therefore, there was no breach of duty and no liability on the part of DOTD. In light of these findings, we do not address DOTD’s remaining assignments of error.

CONCLUSION

Based on the foregoing, we reverse the judgment of the trial court. All costs of this appeal are assessed against Murphree.

REVERSED.

      . Daigle never filed an answer or other response to the suit, and the record does not show whether he was served with citation and the petition. He did not participate in the trial and was not cast for damages in the judgment.

      . The judgment awarded all of the damages to Tristem Murphree and none to Corona, who did not appeal.


author: DOWNING, J.

text:
    LOUISIANA ENVIRONMENTAL ACTION NETWORK and Juanita Stewart v. The LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY
    No. 2002 CA 2377.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Adam Babich, Karla A. Raettig, New Orleans, Counsel for Plaintiffs/Appellants Louisiana Environmental Action Network and Juanita Stewart.
    Donald Trahan, Baton Rouge, Counsel for Defendant/Appellee Louisiana Department of Environmental Quality.
    Dwayne M. Johnson, Baton Rouge, Counsel for Intervenor/Appellee Georgia Pacific Corporation.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   DOWNING, J.

Louisiana Environmental Action Network (LEAN) and Juanita Stewart appeal a judgment dismissing their petition for judicial review of an amended air quality permit Louisiana Department of Environmental Quality (LADEQ) issued to Georgia-Pacific Corporation (GP). Within five months of issuing the amended air quality permit, and while the petition for judicial review was pending, LADEQ issued another permit pursuant to 40 C.F.R. Part 70 that incorporated the terms of the amended air quality permit. Thereafter, GP filed a motion to dismiss the petition for judicial review, alleging that the issuance of the Part 70 permit made moot the amended permit under judicial review. The trial court agreed and entered judgment dismissing the action. Concluding that the trial court did not err in finding that the Part 70 permit superseded the prior permit, we affirm the judgment of the trial court dismissing the petition for judicial review.

FACTS AND PROCEDURAL HISTORY

The record reflects that when LADEQ issued the amended permit at issue on August 20, 2001, GP’s Port Hudson Operations had been operating under Louisiana state air permits since February 1988. In 1996 GP submitted a Title V air permit application pursuant to 40 C.F.R. Part 70 and the Louisiana Administrative Code, but no Part 70 permit had been issued when LADEQ amended the Port Hudson permit or when LEAN and Ms. Stewart filed a petition for judicial review of the amended permit.

LEAN and Ms. Stewart filed timely a petition for judicial review of the August 20, 2001 permit, but before it could be heard, LADEQ finally issued the Part 70 permit. GP, an intervenor in the case filed by LEAN and Ms. Stewart against LA-DEQ, subsequently filed a motion to dismiss the petition for judicial | ¡¡review on the ground of mootness, claiming that the August 20, 2001 permit was subsumed into the Part 70 permit issued on January 25, 2002.

After hearing the motion to dismiss, the trial court entered judgment in favor of GP dismissing the petition for judicial review. The trial court subsequently denied LEAN’S and Ms. Stewart’s motion for new trial.

LEAN and Ms. Stewart filed this devol-utive appeal raising one assignment of er~ ror. They allege that the trial court erred in finding moot the issues raised in the petition for judicial review.

DISCUSSION

MERGED SYSTEM

The primary issue for this court to decide is whether the August 20, 2001 amended permit was subsumed into the Part 70 permit issued on January 25, 2002. And we conclude that the trial court was not legally or factually erroneous in concluding that it was. Louisiana Administrative Code 33:III.507.D.l.a provides as follows:

The terms and conditions of any permit or exemption issued to a Part 70 source by the permitting authority prior to the effective date of this Section shall remain in effect, unless otherwise inconsistent with the provisions of this Chapter or revised in accordance with this Chapter, until the initial permit under this Section for such Part 70 source is issued. (Emphasis added.) (Footnotes added.)

|4By the plain language of the section, the terms and conditions of existing permits remain in effect until LADEQ issues a permit under this section for a Part 70 source. It is also plain from LAC 33:III.507.E.l that Part 70 permits are effective from the date of issuance of the permit. We agree with LADEQ’s and GP’s argument that the Louisiana Administrative Code has established a merged system combining the elements of state permitting with the federal requirements of Part 70.

We understand LEAN’S and Ms. Stewart’s argument that Part 70 does not require inclusion of many of the state terms and conditions required under the Louisiana Administrative Code and that, therefore, Louisiana’s Part 70 permit is actually two permits contained in the same document. However, Louisiana defines the Part 70 permit to include state terms along with the federally required terms. LAC 33:III.507.C, 40 C.F.R. Part 70. Moreover, LAC 33:III.507.D.l provides that existing air quality permits remain effective until a Part 70 permit is issued.

Accordingly, the trial court was not erroneous in concluding that the August 20, 2001 permit was of no force and effect once LADEQ issued the Part 70 permit on January 25, 2002.

COLLATERAL INJURY EXCEPTION

LEAN and Ms. Stewart argue, nonetheless, that the dispute at issue falls within an exception to the mootness doctrine for secondary or collateral injury that survives after the primary injury has been resolved. LEAN and Ms. Stewart argue that this exception pertains here where the challenged permit allegedly legalized release of more than 1,300 extra tons per year of volatile organic compounds into the air in an area where health protection standards are already violated, thereby further threatening their health and welfare.

We first note that this exception to the mootness doctrine appears to apply to amended or expired articles, statutes and ordinances. Cat’s Meow, Inc. v. City of | ¡New Orleans Through Dep’t of Finance, 98-0601, p. 9 (La.10/20/98), 720 So.2d 1186, 1194. It is therefore questionable whether the principle applies to individual permits. Even so, when considering the collateral injury, “the court should consider the nature of the case and determine whether the curative changes leave unresolved collateral consequences.” (Emphasis added.) Id.

Here, LADEQ’s adoption of the Part 70 permit did not leave unresolved the issues over which LEAN and Ms. Stewart complain. Under La.R.S. 30:2050.21A and 30:2050.23, they have the right to file a petition for judicial review of the Part 70 permit in district court within 30 days of receipt of notice. In brief, they acknowledge they have not done so. They also have the right to file a petition with the EPA asking EPA to object to the permit. LAC 33:III.533.E. The briefs suggest they have done this.

Accordingly, even if the suggested exception to the mootness doctrine were applicable to issuance of permits, which we do not decide, the exception cannot apply where claimants have remedies available to pursue that can resolve the alleged harm. See Cat’s Meow, 98-0601 at p. 9, 720 So.2d at 1194.

JUSTICIABLE CONTROVERSY

LEAN and Ms. Stewart also argue that the issues raised in their petition for judicial review are not moot because the federal EPA may revoke the Part 70 permit in whole. They further assert that neither LADEQ nor EPA is required to reissue the permit.

lfiWe decline to speculate on what the LADEQ or EPA might do because such controversy is not justiciable at this point. For the same reason, we also decline to decide here whether such action would revive the amended permit at issue. In Duplantis v. Louisiana Board of Ethics, 00-1750, p. 11 (La.3/23/01), 782 So.2d 582, 589, the Louisiana Supreme Court observed, “this Court has frequently noted that the grant of judicial power implicitly restricts our courts to review only matters which are justiciable, i.e., actual and substantial disputes with adverse parties, not hypothetical, moot, or abstract questions of law.” The court continued:

We have defined a “justiciable controversy” as “an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character.” This court has clearly held that “The Constitution does not vest [Louisiana Courts] with jurisdiction to render advisory opinions.” (Citation omitted.)

Id.

The law allows EPA to modify, terminate or revoke a Part 70 permit and allows it to issue “only a revised permit that satisfies EPA’s objection.” 42 U.S.C. § 7661d(b)(3). See also LAC 33:111.533.-E.4 and 40 C.F.R. § 70.8(d). We also note that LAC 33:III.507.F allows the LADEQ to permit state-only changes that are not addressed or prohibited in the federally enforced terms and conditions.

However, until EPA acts on LEAN’S and Ms. Stewart’s request, the matters at issue remain hypothetical and abstract and we have no jurisdiction to consider them. Duplantis, 00-1750 at p. 11, 782 So.2d at 589.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court dismissing LEAN’S and Ms. Stewart’s petition for judicial review. Costs are assessed equally to LEAN and Ms. Stewart.

AFFIRMED.

      . The regulations in 40 C.F.R. § 70 ei seq. establish a comprehensive federal system for state air quality permitting pursuant to the Clean Air Act, 42 U.S.C. § 7401 et seq. The regulations provide the minimum requirements for state operating permits and the standards by which the Environmental Protection Agency administrator will oversee these permits. 40 C.F.R. § 70.1.

      . Louisiana Administrative Code 33:111.507.-D.l.d authorizes a permitting authority to revise any existing permit prior to issuance of the initial Part 70 permit. It is undisputed that GP's Port Hudson site was covered by a valid air quality permit prior to the effective date of the applicable section of the Louisiana Administrative Code, October 12, 1995. 60 FR 47296; 40 C.F.R. § 70, App. A. Accordingly, LEAN’S and Ms. Stewart's argument that LAC 33:III.507.D.l.a is inapplicable due to permit modification after the effective date is without merit.

      . Before a final Part 70 permit can be issued, the permit is subject to review by the public, other affected states and the federal EPA. LAC 33:111.519.0.1. The permit cannot be issued until 45 days have passed from the date of notice of the permit application and the EPA administrator does not object or until the administrator notifies the permitting authority that no objection will be made. LAC 33:111.533.C.l and 2. After the EPA administrator has failed to object in writing within the 45 day period, any person has 60 more days to petition the administrator to make such objection. LAC 33:III.533.E.l. Such petition, however, does not stay the effectiveness of an issued permit if the permit was issued after the end of the 45-day review period and prior to EPA objection. LAC 33:III.533.E.2. The EPA administrator, however, has the authority to modify, terminate or revoke such permit. LAC 33:III.533.E.4. LEAN and Ms. Stewart apparently made such petition.
      Note that the EPA will only review the federal conditions of a permit and do not restrict Louisiana from enforcing state conditions included in the permit. LAC 33:III.533.A. Federally enforceable requirements are contained in 40 C.F.R. § 70.6. State conditions can establish additional or more stringent requirements not inconsistent with 40 C.F.R. § 70 et seq. 40 C.F.R. § 70.1(C).
      Nothing in the applicable sections of the Louisiana Administrative Code suggest that the prior state permit would be revived if the EPA did totally revoke a permit.

      . LEAN and Ms. Stewart argue that J. Manoco, Inc. v. State, Louisiana Gaming Control Board, 98-1412 (La.App. 1 Cir. 12/28/99), 756 So.2d 430, makes manifest that the collateral consequence doctrine applies to permit applications. Mr. Manoco’s collateral damage arose, however, from a change in the law that allowed East Baton Rouge Parish to end video poker gaming, and not from the license at issue. After the Louisiana Gaming Control Board revoked Mr. Manoco’s video poker gaming license, the voters of East Baton Rouge Parish voted to end video poker casinos in the parish. Accordingly, Mr. Mañoco could not be reissued a gaming license. He challenged the ruling revoking his gaming license, nonetheless, because if the revocation were upheld, he would suffer the direct consequence of being precluded from obtaining another gaming license for five years. La. R.S. 27:308D; Manoco, 98-1412 at p. 5, 756 So.2d at 434.


author: FOIL, J.

text:
    GINGER MAE FINANCIAL SERVICES, L.L.C. (GMFS) v. AMERIBANK, FSB
    No. 2002 CA 2492.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.
    Todd E. Gaudin, Baton Rouge, for Ap-pellee Plaintiff Ginger Mae Financial Services, L.L. C.
    Dale R. Baringer, Baton Rouge, for Appellant Defendant Ameribank, FSB.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   FOIL, J.

This appeal challenges a trial judge’s grant of summary judgment in a proceeding to enforce a contractual obligation to repurchase a loan. We affirm.

BACKGROUND

On September 10, 2001, Ginger Mae Financial Services, L.L.C. (GMFS) filed this petition seeking a judgment requiring Am-eribank, FSB, a federal bank domiciled in West Virginia, to repurchase a loan. On November 30, 2000, GMFS and Ameribank entered into a “Correspondent Loan Purchase Agreement” (Agreement) providing for the purchase by GMFS of loans made by Ameribank in accordance with the requirements of the agreement. In its petition, GMFS averred that Ameribank submitted a loan package to it for a Georgia resident, John Seymour, in the principal amount of $265,000.00. The loan package contained federal tax returns for Mr. Seymour for the tax years 1998, 1999 and 2000. GMFS agreed to purchase the loan, and the loan was closed in February of 2001. Thereafter, GMFS discovered that Mr. Seymour did not file the federal tax forms for 1998,1999 and 2000.

At some point in time, John Seymour defaulted on the note. On July 18, 2001, GMFS made a formal demand on Ameri-bank to repurchase the Seymour loan, asserting that by submitting the tax records to GMFS, Ameribank represented to GMFS that Mir. Seymour had in fact filed them with the IRS before the loan closing date. GMFS asserted that Ameribank breached various express provisions of the Agreement requiring that all documents submitted by Ameribank to GMFS be genuine, all representations be true and accurate, and all representations contained in the loan application be fully investigated by Ameribank.

Thereafter, GMFS filed a motion for summary judgment, asserting that there were no disputed factual questions on the only issue before the court, that is, whether the Agreement gave GMFS the right to force Ameribank to repurchase the Seymour loan. The trial judge initially denied the motion for | Jack of sufficient proof that the tax returns had not been filed with the IRS. Thereafter, GMFS filed a second motion for summary judgment, attaching thereto a certification from the IRS that no tax form was filed with the IRS by John Seymour for the tax periods 1998, 1999 and 2000.

The trial judge granted the motion for summary judgment, finding that under the clear language of the Agreement, Ameri-bank was obligated to repurchase the loan. Judgment was entered against Ameribank ordering it to repurchase the loan pursuant to the terms of the Agreement, payable in an amount equal to the unpaid principal balance of the mortgage loan, all unpaid interest on the loan, together with all expenses, including reasonable attorney fees incurred by GMFS relating to the repurchase. Ameribank filed a motion for a new trial, which was denied by the trial judge. This appeal, taken by Ameribank, followed.

DISCUSSION

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Johnson v. Illinois National Insurance Company, 2000-1775, p. 4 (La.App. 1 Cir. 11/09/01), 818 So.2d 100, 102, writ denied, 2001-3190 (La.2/8/02), 809 So.2d 139. The motion should be granted only if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

In its first two assignment of errors, Ameribank urges that the trial judge erred in entering summary judgment because it was disputed whether the tax returns were actually filed by Mr. Seymour, and certain evidence was not submitted by GMFS demonstrating its entitlement to enforce the repurchase provision of the Agreement. We find no merit to these assertions. GMFS offered a certification by the IRS that Mr. Seymour did not file tax returns for the years 1998, 1999 and 2000. Ameribank was free to |4offer evidence to try to create a factual issue regarding the filing of the tax returns, but did not.

Furthermore, when a contract is not ambiguous and does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for the court to decide. Thus, when parties are bound by a valid contract and the material facts involved in the dispute are not contested, the contract’s application to the case is a matter of law and summary judgment is appropriate. Johnson v. Illinois National Insurance Company, 2000-1775 at p. 4, 818 So.2d at 103. Because this case involves only an issue of contract interpretation, and there are no disputed facts regarding the issue of whether Ameribank is contractually obligated to repurchase the Seymour loan, this case is an appropriate one to be decided on summary judgment.

We turn to the relevant portions of the Agreement. Section 2.5 of the Agreement provides:

Correspondent [Ameribank] warrants that all loan applications and related loan packages submitted by Correspondent to GMFS, LLC hereunder will have been fully investigated by Correspondent, all material representations contained in such applications will have been investigated or ascertained by Correspondent in accordance with prudent underwriting practices, and will be true and correct to the best of Correspondent’s knowledge, information and belief; that all documents submitted or to be submitted to GMFS, LLC are genuine; that all representations with respect to the loans are true and correct and meet the requirements and specification of this Agreement; and the prevailing market standards.... (emphasis in original omitted).

An addendum adding Section 2.5.1 to the Agreement provides, in pertinent part:

Correspondent may prepare closing documents for mortgage loans on forms approved by GMFS, LLC and attached hereto as exhibits including but not limited to promissory notes, deeds of trust, mortgages, disclosure statements, and any other documents or disclosures required by state or federal law or GMFS, LLC (collectively “Documents”) and that Correspondent warrants that all such Documents as completed with respect to each | ¡¡mortgage loan shall: (1) be accurate, correct, complete, valid, binding and enforceable according to their terms; (2) comply with all applicable disclosure or other requirements under state or federal laws and regulations; and (3) have been provided to the borrowers or others on a timely basis as required by applicable state and federal laws and regulations. Correspondent further warrants that all documents submitted by Correspondent to GMFS, LLC with respect to each mortgage loan are in all respect as valid and genuine and being what on their face they purport to be. (emphasis in original omitted).

Section 7.1 of the Agreement states:

In the event a representation or warranty by Correspondent relating to a mortgage loan purchased by GMFS, LLC is determined by GMFS, LLC to have been inaccurate as of the date made, Correspondent agrees to repurchase such mortgage loan, should GMFS, LLC or the then holder of the mortgage loan so request, at a repurchase price payable in cash equal to the following.. ,(i) the then unpaid principal balance of the mortgage loan, (ii) all accrued but unpaid interest on the mortgage loan at its note rate, (iii) any fee or other amount, if any, in excess of par previously paid by GMFS, LLC to Correspondent relating to such mortgage loan and (iv) all expenses, including reasonable legal fees, incurred by GMFS, LLC or such holder relating to such repurchase, including enforcing Correspondent’s obligation to repurchase, (emphasis in original omitted).

Ameribank insists that the trial court erred in relying on the addendum provision to find an obligation on its part to warrant the tax returns were genuine, urging that the warranties contained therein apply only to loan closing documents prepared by the closing bank. Items submitted by the borrower, it insists, fall exclusively under Section 2.5 of the document, which imposes a “due diligence” obligation on Ameribank to fully investigate the borrower’s representations contained in the loan application in accordance with prudent underwriting practices. Thus, Amer-ibank argues, the trial court erred in construing the agreement to impose on it a strict liability-type of warranty on the accuracy of the borrower’s representations in the application.

GMFS urges that the addendum merely reinforces Ameribank’s obligation in the Agreement and clarifies the main contract provisions. It 1 ^essentially argues that under the clear terms of the contract, Ameri-bank warranted the information it submitted to GMFS was genuine. It contends that because the tax returns were not filed with the IRS, they were not “genuine,” and by failing to submit genuine documents, Ameribank breached the Agreement, thereby triggering Ameribank’s repurchase obligations.

We agree with GMFS’s construction of the contract. The addendum clearly states that Ameribank warranted that all documents submitted by Ameribank to GMFS with respect to each mortgage loan were in all respects as valid and genuine and being what on their face they purported to be. Pursuant to the terms of the contract, Ameribank warranted that the tax returns were what on their face they purported to be documents filed with the IRS under the penalty of law. Because GMFS determined that the warranty regarding the tax returns was in fact inaccurate, Ameri-bank’s obligation in Section 7.1 of the Agreement to repurchase the mortgage loan was triggered.

Accordingly, we find that the trial judge was correct in construing the contract to require Ameribank to repurchase the subject promissory note. However, the record indicates that GMFS commenced foreclosure procedures and may have had the collateral for the loan sold at a sheriffs sale. The trial judge should have made a determination of the issues relating to the amount due on the note, including the amount of payments made on the loan or other recoveries GMFS may have had through foreclosure, as well as the reasonableness of attorney fees and expenses incurred by GMFS in foreclosing on the note. Therefore, we remand the case to the trial judge to determine the sums now due on the note and to set the amount of attorney fees both for the trial and the appeal.

CONCLUSION

Based on the foregoing, the judgment is affirmed in part to the extent Ameribank was found to be obligated to repurchase the promissory note. The case is remanded for a determination of the amount due on the note, for|7any sums due pursuant to the terms of the contract, and to set attorney fees for both the trial and appeal.

AFFIRMED IN PART; REMANDED WITH ORDER