author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Vincent CHEAVIOUS.
    No. 2003-KA-0706.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2003.

      Eddie J. Jordan, Jr., District Attorney, Anne M. Dickerson, Assistant District Attorney, Val M. Solino, Assistant District Attorney, Jennifer. Mossack, Law Clerk, Daniel V. Hiatt, Jr., Law Clerk, New Orleans, LA, for PlaintiffAppellee.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.
   MICHAEL E. KIRBY, Judge.

On April 5, 2001, the defendant-appellant Vincent Cheavious was indicted for the first-degree murder of Charlotte Cheavious wherein he had the specific intent to kill or inflict great bodily harm' on more than one person. The defendant entered a dual plea of not guilty and not guilty by reason of insanity at his arraignment on April 10, 2001. The court immediately ordered a lunacy hearing, which was conducted on May 8, 2001. After two doctors testified, the court found the defendant competent to proceed. On September 21, 2001 the State amended the indictment to reflect that the defendant violated La. R.S. 14:30.1 relative to the second degree murder of Charlotte Cheavious and added as a second count a violation of La. R.S. 14:27(30.1) relative to the attempted second degree murder of AIhe Robinson. The court held additional lunacy hearings, including one just prior to trial, at which time the court again found the defendant competent to proceed. A two-day jury trial followed. After the State had rested its case, the defendant withdrew his dual plea and entered a simple not guilty plea, then rested without presenting any witnesses. The twelve-person jury returned a verdict of guilty as charged on count one and guilty of the responsive verdict of aggravated battery as to count two. On September 9, 2002, the court denied the defendant’s post-verdict motions. The defendant waived delays, and the court sentenced him to life imprisonment without the benefit of probation, parole, or suspension of sentence on count one and to ten years at hard labor on count two. The sentences were ordered to run concurrently. This appeal in which the defendant raises a single assignment of error follows. -

The testimony at the trial established that the defendant and the victim, his wife Charlotte, had separated a few months before Charlotte’s death on February 2, 2001. Charlotte lived in one-half of a double residence with her two children, S.R., age eight, and V.R., an infant who was the child of the defendant and the victim. Charlotte’s mother, Allie Robinson, lived in the other half of the double. On the day of her death, Charlotte picked up her older child from a friend’s house. She had also picked her mother up from work and ran various errands. Charlotte, Mrs. Robinson, and S.R. returned home without the baby, who had apparently been removed from the babysitter’s care without her mother’s permission. Both Mrs. Robinson and S.R. testified that the victim placed various phone calls in an attempt to get her child back, telling at least one person that she was going to call the police, which she did.

Officer Gary Barnes responded to the victim’s call, which came to him as a “103, a disturbance concerning child custody between a wife and husband.” Officer Barnes met with the victim who explained to him that, without her permission, her husband had removed their fourteen-month old daughter from the babysitter and she wanted the child returned home. The victim further explained to Officer Barnes that she had tried to call the number where she believed the defendant was, but that her calls were not being accepted. Officer Barnes placed a call and spoke with a female to whom he explained why he was calling and asked for the defendant to contact him; this woman told the officer that the child was at the home of the defendant’s sister. A short time later a male called Officer Barnes; the officer told the caller that he was looking for Vincent Cheavious at which point the phone went dead. Officer Barnes concluded his investigation by explaining to the victim that, as there was no apparent harm to the child, no history of violence towards the child, and Vincent Cheavious was thé biological father, there was no further police action to take and her recourse was through the civil court. Officer Barnes confirmed this analysis of the situation with his supervisor. He then concluded his paperwork and left the scene, but only went a short distance before he made an unrelated vehicle stop. As he was doing the traffic stop, approximately five minutes after he had left the victim’s home, a dispatch came through of a shooting at the residence. Officer Barnes returned, went to the front door, and saw Charlotte Cheavious on the floor bleeding. He called for an EMS unit and secured the scene. EMS personnel declared the victim dead.

S.R. was a witness to her mother’s murder. She testified at the trial that, approximately five minutes after the police officer left, the defendant knocked on the door. The victim let him in, asking him where her baby was. The defendant did not respond, but instead removed a gun from his pocket and pointed it at the victim’s neck. S.R. closed her eyes and heard three gunshots. When she opened her eyes, she saw her mother on the floor and so she ran next door to get her grandmother.

Mrs. Robinson testified that, after the police officer left her daughter’s residence, she returned to her side of the double house and went upstairs to shower. She then heard three loud noises, which did not sound right, coming from her daughter’s side of the double. Mrs. Robinson ran outside and saw the defendant outside standing by a bush. The defendant fired towards her, and she fell back inside her house to make the defendant think he had shot her, and then pushed the door shut. Within two or three minutes, S.R. banged on the door. Mrs. Robinson opened her door and saw the defendant running down the street. She returned to her daughter’s house and saw her on the floor. Mrs. Robinson called 911.

Dr. James Traylor performed the autopsy on the victim. He found evidence of three separate gunshot wounds. One bullet had entered into the chin, came out the other side, and then entered the neck, ultimately perforating the lung. A second wound was just underneath the left earlobe; the bullet had lacerated the left carotid artery, causing massive bleeding in the neck, before exiting the back. Another bullet had entered behind the left ear, penetrating the skull and causing massive injuries to the brain before lodging in the neck. Dr. Traylor was unable to locate any defensive wounds on the victim. He stated that the shots were fired from six to eighteen inches away based upon the stippling and tattooing around the wounds. He further testified that two of the three wounds were such that the victim, upon sustaining either one, would have dropped “like a sack of potatoes” and been unable to engage in any struggle.

Darlene Causey testified that she had been a good Mend of the defendant for a couple of months prior to the shooting of Charlotte Cheavious. Around the end of January 2001, Darlene was with the defendant when he attempted to purchase a gun. The defendant was told that he would not be able to have the gun until the background check was complete, which might take up to three days. During this time, the defendant told Ms. Causey many times that he was going to kill his wife because she was not taking care of his child correctly. However, Ms. Causey stated that on at least one occasion she had bathed the baby and saw no evidence of mistreatment.

On the day after the defendant had made arrangements to purchase a gun, he had some type of argument with Ms. Cau-sey’s son; she told him not to come around any more. However, on the following day, the defendant came to her house with his baby and left the child overnight in Ms. Causey’s care. That morning she went to get her hair done. During the day, her son called and said that the defendant had taken her car. That evening, the defendant called Ms. Causey and said he had killed “that bitch” and now his child would be safe. Ms. Causey testified at trial that, on the same evening, when she returned home she heard a message on her answer machine from the defendant’s wife. The message was, “Vincent, you unchemical m-f_, bring me my daughter.” Ms. Causey admitted that she never actually saw the defendant in possession of a gun.

Sergeant Fred Bates testified that he was the homicide detective who handled the investigation of the murder of Charlotte Cheavious. He testified that he directed the handling of the scene, which included having photographs taken of the victim’s home. He noted that much of the upstairs was in disarray with clothing scattered on the floor and drawers pulled out of a dresser, but he was unable to link this disarray with the crime. The downstairs of the home showed nothing out of the ordinary except that a television set in the dining area appeared to have been moved. Sergeant Bates also noted that in the kitchen, there were several Wal-Mart bags, which made it appear that the victim had recently been shopping.

Sergeant Bates further testified that he interviewed the victim’s mother and daughter and developed the defendant as a suspect. He applied for and obtained a warrant for the defendant’s arrest. At approximately 1:00 a.m., the murder having occurred at 7:48 p.m. the preceding evening, Sergeant Bates was notified that a call had come in from DePaul’s Hospital stating that the person wanted for the murder of Charlotte Cheavious was at the hospital attempting to cheek himself in.

The defendant was arrested at DePaul Hospital by Officer Chad Perez of the Second District who had responded with his partner to the call that a person wanted for murder was there. Officer Perez testified at trial that the defendant was on the pay phone in the lobby when he arrived. The defendant was very calm and did not attempt to flee. He confirmed for the officers that he was wanted for a murder that had occurred earlier.

Despite police attempts to locate the murder weapon, it was never found.

The defense rested without presenting any witnesses.

In his sole assignment of error, the defendant argues that the jury verdict of guilty of second-degree murder should be reversed because there was sufficient proof of mitigating factors that support a responsive verdict of manslaughter. The defendant suggests that the victim’s threats to call the police made him fear that his child would be left defenseless with a person who was not caring properly for her, and thus caused him, as it would the average person, to lose his self-control and cool reflection.

Manslaughter is defined in pertinent part by La. R.S. 14:31 as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; ...

The Louisiana Supreme Court has explained the relationship between the two separate offenses of homicide and manslaughter as follows:

It is the presence of “sudden passion” and “heat of blood” that distinguishes manslaughter from murder. This court has repeatedly stated, however, that “sudden passion” and “heat of blood” are not elements of the offense of manslaughter. Rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide' is committed in the absence of these factors. State v. Lombard, 486 So.2d 106 (La.1986); State v. Tompkins, 403 So.2d 644 (La.1981). Because they are mitigatory factors, a defendant who establishes by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” is entitled to a verdict of manslaughter. Lombard, 486 So.2d at 111.

State v. Snyder, 98-1078, p. 4 (La.4/14/99), 750 So.2d 832, 837-838.

“Heat of blood” or “sudden passion” is defined by the jurisprudence as provocation sufficient to deprive an average person of his self-control and cool reflection. State v. Robinson, 2001-1305, p. 11 (La.App. 4 Cir. 4/17/02), 820 So.2d 571, 579, writ denied, 2002-1640 (La.5/30/03), 845 So.2d 1068. However, such provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled or that an average person’s blood would have cooled at the time the offense was committed. State v. Collor, 99-0175, p. 10 (La.App. 4 Cir. 4/26/00), 762 So.2d 96, 102. When reviewing the contention, as made by defendant in the instant case, that evidence was produced that the offender committed the crime in sudden passion or heat of blood, the Jackson v. Virginia standard of review must be employed to determine whether a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found that the mitigating factors were not established by a preponderance of the evidence. Snyder, 98-1078 at pp. 4-5, 750 So.2d at 838. The defendant need not affirmatively establish the factors; the jury is free to infer the mitigating circumstances from the evidence. State v. Lindsey, 98-1064, p. 5 (La.App. 4 Cir. 6/3/98), 715 So.2d 544, 547.

The defendant’s argument hinges on the evidence that he learned only a few minutes before the shooting that Charlotte Cheavious had in fact called the police. However, while this may have pushed the defendant over the edge in terms of wanting to kill his wife, Darlene Causey’s testimony showed that, three days earlier, the defendant had taken steps to procure a weapon for the express purpose of killing his wife. Even if his motivation at that time was some misguided belief that his child was at risk, an average person certainly would have time over a three-day period to consider more rational ways to deal with a child welfare issue than killing the child’s other parent. The average person presumably could have done exactly what Charlotte Cheavious did, call the police. In any event, if the defendant was motivated by concern for his child, he had already removed the child from the physical custody of her mother. An average person would certainly have had time in the day following the removal of the child to consider more reasonable solutions to the custody problem than murder.

Furthermore, there was absolutely no evidence in this case that the defendant’s child was at risk or ill-treated. Ms. Cau-sey testified that the child appeared well cared for. Although the baby had been left with a sitter for a couple of days, Mrs. Robinson testified that the person babysitting was her older daughter, the baby’s aunt. Mrs. Robinson further testified that Charlotte worked as a bus driver for RTA and attended Southern University. She stated that the reason the baby had been staying with her aunt for a couple of days was because Charlotte “had been working around the clock.” Thus, the State rebutted any suggestion that Charlotte Cheavious had mistreated or abandoned her child. The State through Ms. Causey’s testimony further established that the defendant planned for at least three days to kill his wife.

The defendant’s assignment of error has no merit.

Although not argued by the defendant in his assignment of error, a review of the entire record for errors patent reveals that the conviction on the second count is not supported by the evidence. In this count, the defendant was charged with the attempted second degree murder of Allie Robinson, a violation of La. R.S. 14:27(30.1). The jury returned a verdict of guilty of aggravated battery, a responsive verdict under La.C.Cr.P. art. 814. Aggravated battery is defined in La. R.S. 14:34 as a battery committed with a dangerous weapon. La. R.S. 14:33 defines a battery as “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid substance to another.” In contrast to battery, an aggravated assault is the attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery with a dangerous weapon. La. R.S. 14:36; La. R.S. 14:37.

Here, there was no evidence presented by the State to show that Mrs. Robinson was actually shot by the defendant or that there was any force or violence inflicted upon her person. Instead, she stated that the defendant shot in her direction; she went inside and fell down as if she were shot so that the defendant would believe she was; she did not testify that she was actually struck by the bullet. She did not testify regarding any wounds or injuries she suffered. No other evidence was presented to indicate that she was struck by the shot that the defendant fired in her direction. Thus, the evidence presented at trial reflects the defendant certainly committed an aggravated assault upon Mrs. Robinson, but not an aggravated battery.

Aggravated assault is not a responsive verdict to attempted murder or attempted manslaughter. State v. Whins, 96-0699 (La.App. 4 Cir. 4/9/97), 692 So.2d 1350; La.C.Cr.P. art. 814. In Whins, the defendant was charged with four counts of attempted first-degree murder and one count of aggravated burglary. A jury found him guilty as charged on one count of attempted murder, guilty of attempted manslaughter on the three remaining counts of attempted murder, and guilty as charged of the burglary. The trial court subsequently granted the defendant’s motion for post verdict judgment of acquittal on the first four counts. In considering the State’s appeal from the granting of the post verdict motion of acquittal, this Court noted that to sustain the convictions for attempted first degree murder and attempted manslaughter, the State was required to prove beyond a reasonable doubt that the defendant had the specific intent to kill and the commission of an overt act toward that goal, citing State v. Bordenave, 93-1682 (La.App. 4 Cir. 8/23/95), 660 So.2d 1207. Whins, p. 3, 692 So.2d at 1353. The evidence in Whins showed that the defendant fired shots into the windows of the mobile home, where his ex-girlfriend, her father, and two children were present, when his ex-girlfriend refused to come out. However, no one was near the windows, the shotgun pellets lodged upward, and no one inside was struck. The defendant finally was able to climb inside, found his girlfriend, put the gun to her head, and threatened to shoot her and the children. However, he never shot them and was apprehended outside when the police arrived. Evidence later showed that each time he fired the shotgun, the defendant had to load it; the shotgun was empty when he put it to his girlfriend’s head, and he was not in possession of any more shells. Thus, this Court agreed with the trial court that, taking all of the evidence in the light most favorable to the prosecution, the State had not excluded the reasonable hypothesis that the defendant had fired at the trailer only in an attempt to force his ex-girlfriend to exit, and thus the attempted first degree murder based on the aggravating factor of the intent to kill more than one person was not supportable. Furthermore, the defendant could not have intended to kill his girlfriend when he held the gun to her head because he knew it was not loaded and he had no means to reload it. Thus, the defendant was guilty only of multiple aggravated assaults, which verdicts are- not legislatively responsive, and the trial court acted correctly when it granted the post verdict, judgment of acquittal.

Taking the evidence in the light most favorable' to the prosecution, the record fails to establish that the State proved an aggravated battery was committed upon Allie Robinson. We note that the defendant apparently did not object to inclusion of aggravated battery as a verdict, and that La.C.Cr.P. art. 814(C) specifically provides that such an objection can be made at the conclusion after all evidence has been submitted. The failure to object will bar relief regarding the sufficiency of the evidence but only if the evidence is sufficient to sustain the greater offense which was charged in the indictment. See State v. Camp, 571 So.2d 195, 200 (La.App. 4 Cir.1990), citing State v. Schrader, 518 So.2d 1024 (La.1988). In those cases, the defendants were charged with murder and convicted of manslaughter. The court in Schrader noted' “absent a contemporary objection, a defendant may not complain if jurors return with a legislatively approved responsive verdict, whether or not that verdict is supported by the evidence. This Court has indicated that such a result both recognizes the legitimacy of a ‘compromise’ verdict and comports with the responsive verdict scheme of La.C.Cr.P. art. 814. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982). However, and as Elaire made clear, there is an important proviso to this rule: the evidence must be sufficient to sustain a conviction on the charged offense. Id at 251.” Schrader at 1034.

Here, the jury rejected the possible verdicts of guilty of attempted second-degree murder and attempted manslaughter as to Mrs. Robinson, but there is no indication that the verdict of guilty of aggravated battery was a compromise as the jury found the defendant guilty as charged on the murder count. Furthermore, the jury’s apparent rejection of a finding that the defendant had a specific intent to kill Mrs. Robinson appears reasonable in light of the lack of evidence of intent to kill her. The defendant had not attempted to kill the actual witness to the murder, the victim’s eight-year old daughter. He fired only once in the direction of Mrs. Robinson, from some distance away, and did not pursue her when she threw herself inside the door of her home. Furthermore, if Mrs. Robinson had been struck by the bullet, the verdict of guilty of aggravated battery would have been valid. It is only the lack of evidence of any actual physical contact with Mrs. Robinson that prevented a valid verdict of guilty of aggravated battery. Cf. State v. Hawkins, 93-1260 (La.App. 4 Cir. 1/27/94), 631 So.2d 1288.

Therefore, the defendant’s conviction and sentence on count two are vacated. His conviction and sentence on count one are affirmed.

CONVICTION AND SENTENCE ON COUNT ONE AFFIRMED; CONVICTION AND SENTENCE ON COUNT TWO VACATED.

      . Throughout the trial transcript Mrs. Robinson’s first name is spelled "Ali” instead of “Allie” as shown in the amended indictment.

      . The babysitter did not testify at trial.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . By order dated September 12, 2003, this Court ordered the parties to file additional briefs on the issue of the sufficiency of the evidence for the defendant's conviction on count two of the indictment. The defense attorney filed a supplemental brief within the deadline set by this Court, but the district attorney’s office did not.

      . The responsive verdicts to attempted second degree murder are guilty, guilty of attempted manslaughter, guilty of aggravated battery, and not guilty. La.C.Cr.P. art. 814(A)(4).

      . Additionally, the preliminary hearing transcript contained in the appellate record reflects that Sergeant Fred Bates was questioned regarding the shot fired at Mrs. Robinson, and he stated that she was not struck by the shot.


source: Caselaw Access Project

author: |, DAVID S. GORBATY, Judge. h CANNIZZARO, J.

license: Public Domain

text:
    A. Remy FRANSEN, Jr. and Allain F. Hardin v. The CITY OF NEW ORLEANS, et al.
    No. 2002-CA-2384.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2003.

      A. Remy Fransen, Jr., Allain F. Hardin, Fransen & Hardin, A.P.L.C., and Henry L. Klein, James H. Daigle, Jr., Klein-Daigle, LLC, New Orleans, LA, for Plaintiffs/Appellants.
    Richard C. Stanley, Bryan C. Reuter, William M. Ross, Stanley, Flanagan & Reuter, L.L.C., and Charles L. Rice, Jr., City Attorney, Joyce G. Joseph, Deputy City Attorney, and Phillipa L. Bowers, Li-nebarger, Goggan, Blair & Sampson, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   |, DAVID S. GORBATY, Judge.

Plaintiffs, A. Remy Fransen, Jr., and Allain F. Hardin, appeal a judgment granting an Exception of Prescription in favor of the City of New Orleans (hereinafter the City), Linebarger Goggan Blair Pena & Sampson, L.L.P. f/k/a Heard Linebarger Graham Goggan Blair Pena & Sampson, L.L.P. (hereinafter the law firm), and United Governmental Services of Louisiana, Inc. (hereinafter UGSL), and dismissing plaintiffs’ petition and first amending petition, with prejudice. For the following reasons, we reverse the judgment of the trial court and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY:

Plaintiffs own personal property in Orleans Parish. Plaintiffs concede that for varying reasons they did not pay their property taxes timely. However, once the taxes were paid, plaintiffs allege that they received notice, either through their own inquiry or by correspondence from the Li-nebarger firm, that they each owed additional penalties, interest and attorney’s fees for making late tax payments.

Plaintiff Hardin received a tax bill from the City near the end of 2000. Payment was due on or before February 1, 2001. In April of 2001, Mr. Hardin discovered that the check he had written in December of 2000 had not been mailed. He mailed a cheek on April 1, 2001. Mr. Hardin alleges that upon receiving the cancelled check for the paid taxes, he noted that the check was marked “partial payment.” He telephoned the City’s Department of Finance and was told that his payment of $6,127.81 had been divided into payments for penalties ($133.41), interest ($133.32), attorney’s fees (1,414.13), and the actual taxes owed ($4,446.95). Mr. Hardin was informed that because the total “tax” bill was not satisfied by his first payment, he owed an additional $2,338.08, and that the amount would continue to grow until paid. He delivered a check to the City Finance Department on May 31, 2001, with a letter indicating that he was paying the added amounts under protest. Mr. Hardin alleges that he never received any correspondence of any kind from the law firm, but, rather, discovered on his own that he had neglected to pay his taxes. Once discovered, he promptly paid them.

Plaintiff Fransen received a notice on May 19, 2000, from the law firm informing him that his 2000 personal property taxes of $5,301.54 were still outstanding. Enclosed with the letter was a statement indicating that Mr. Fransen owed an additional $1,701.80 for attorney’s fees, and two other charges of $212.06 and $159.05. On May 23, 2000, Mr. Fransen sent a letter to the law firm indicating that he intended to protest the penalty and excessive interest assessed. He sent another letter to the City on that same date complaining about its “attempt to | ¡¡charge usurious interest.” He received a response from the City on June 21, 2000 explaining that $3,811.32 of his check had been applied to taxes, $152.45 to accrued interest, $114.34 to the delinquency fee, and $1,223.43 to attorneys fees. Mr. Fransen again wrote to the City on 7/12/00 contesting its arbitrary distribution of monies he intended to be applied to the actual taxes owed. He also indicated that he considered his base tax liability for the year 2000 to be satisfied. When he received no response, he again wrote to the City’s Finance Department on January 15, 2001, enclosing a check for $2,227.89 for additional amounts he owed for penalties and interest. He indicated that he objected to the “fee” charged by the law firm.

On April 1, 2002, suit was filed on behalf of both plaintiffs against the City and the law firm. Plaintiffs complained that the attorney’s fees were in violation of the Rules of Professional Conduct, and that the collection of these additional fees and penalties violated the Louisiana Constitution. In addition to the named defendants, plaintiffs served the state attorney general. On April 29, 2002, plaintiffs amended their original petition to name UGSL as an additional defendant, alleging that this company shared fees with the law firm. A second amending and supplemental petition was filed to add Fransen and Hardin, A.P.L.C., as an additional party plaintiff because of the assessment of penalties, interest and fees for failing to pay the parties’ business personal property taxes timely.

Defendants filed various exceptions to the petition and first amended petition, including the subject exception of prescription. Plaintiffs filed various motions, including two motions for partial summary judgment. On September 13, 2002, the trial court rendered judgment in favor of defendants on their exception of prescription only, dismissing plaintiffs’ original and first amended petition, with prejudice.

This appeal followed.

DISCUSSION:

The only issue to be considered by this Court is whether the trial court erred in granting defendants’ exception of prescription. Although plaintiffs raise numerous other issues in their brief, none of those issues are before this Court.

Under Louisiana law, prescriptive statutes are to be strictly construed against prescription and in favor of the claim that is said to be extinguished. Of the two, possible constructions, the one that maintains enforcement of the action or claim, rather than the one that bars enforcement, should be adopted. Louisiana Health Serv. v. Tarver, 635 So.2d 1090, 1098 (La.1994); see also Fontaine v. Roman Catholic Church, 625 So.2d 548, 551 (La.App. 4 Cir.1993).

A state statute, La.Rev.Stat. 47:2110, and two City ordinances, Ordinance No. 18637, adopted 3/5/98, and No. 20556, adopted 2/21/2002, are at the root of this litigation.

Louisiana Revised Statute 47:2110 A(2) provides:

Any person resisting the payment of any amount of tax due shall pay the amount due to the officer designated by law for the collection of such tax and shall give him, the parish or district assessor, and the Louisiana Tax Commission written notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If a suit is timely filed contesting the correctness of the assessment pursuant to R.S. 47:1998 and seeking the recovery of the tax, then that portion of the taxes paid that are in dispute shall be deemed as paid under protest and such amount shall be segregated and shall be further held pending the outcome of the suit. That portion of the taxes paid by the taxpayer to the officer which is neither in dispute nor the subject of a suit contesting the correctness pursuant to R.S. 47:1998 shall not be made subject to the protest.

The above statute was amended by Acts 2000, 1st Ex.Sess., No. 74, § 1, effective 4/17/00. Prior to the amendment, 47:2110 A read in pertinent part:

Any person resisting the payment of any amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax and shall give him and the officer or agency that has given rise to the cause of action notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If suit is filed within such time for the recovery of the tax, then that portion of the taxes paid that are in dispute shall be deemed as paid under protest and such 'amount shall be segregated and shall be further held pending the outcome of the suit.

The instant case is not the first time the above statute and ordinance have been challenged. Mr. Cooper, the named plaintiff in a class action, challenged the penalties, interest and attorneys fees assessed by the City for untimely paid 1999 taxes pursuant to Ordinance No. 18637. Cooper v. City of New Orleans, 2001-0115 (La.App. 4 Cir. 2/14/01), 780 So.2d 1158. Mr. Cooper argued that La.Rev.Stat. 47:2110 had no application to the action because the statute related to the collection of taxes only, not to the collection of penalties, interest and attorneys fees. This Court ruled that La.Rev.Stat. 47:2110 A applied to persons resisting the enforcement of any provision of the tax laws in relation thereto, and that Ordinance No. 18637 “clearly qualifie[d] as a ‘provision of the tax law in relation to’ the payment of any tax found due.” Id. at p. 6, 780 So.2d at 1162. Therefore, the provisions for filing suit within thirty days of notifying the proper party of payment under protest found in La.Rev.Stat. 47:2110 were applicable to Mr. Cooper.

This Court again addressed the application of Ordinance No. 18637 in Affordable Housing Developers, Inc. v. Kahn, 2000-0614, 2000-0612 (La.App. 4 Cir. 4/25/01), 785 So.2d 251. In that case, taxpayers again paid under protest penalties, interest and attorneys fees assessed for late payment of their 1998 taxes. The Ordinance was retroactively applied to taxes owed on January 1, 1998. The defendants argued that the plaintiffs’ suit had prescribed because the ad valorem taxes were not paid timely in January of 1998. Id. at p. 3, 785 So.2d at 253. The plaintiffs countered that defendants’ reasoning was illogical because under that theory plaintiffs’ right to challenge the penalties, interest and fees prescribed before their claim came into existence. Id. Two judges of this Court reasoned that because Ordinance No. 18637 was clearly encompassed within the language of La.Rev.Stat. 47:2110 (“the enforcement of any provision of the tax laws in relation thereto”), the thirty day prescriptive period set forth in La.Rev.Stat. 47:2110 was applicable. Judge Murray, writing in dissent, opined that La.Rev. Stat. 47:2110 was not a prescriptive statute at all; rather, it was enacted to provide a procedure whereby one assessed with ad valorem taxes may pay the taxes under protest and have the amount so paid held in escrow pending outcome of a suit filed by the taxpayer for recovery of the taxes. Id. at p. 3 of dissent, 785 So.2d at 254. She was also in agreement with plaintiffs that their action did not arise until the underlying taxes became delinquent. Therefore, the late payment of the taxes was not relevant to the payment of penalties, interest and attorneys fees. Id. at pp. 3-4 of dissent, 785 So.2d at 255.

The case at bar presents a unique situation which does not fit snugly into the reasoning of either Cooper or Affordable Housing. Plaintiffs are protesting payment of penalties, interest and attorneys fees assessed for the late payment of their 2000 and 2001 taxes. La.Rev.Stat. 47:2110 was amended in 2000 and the language relied upon in Cooper and Affordable Housing was deleted. Thus, at the time plaintiffs paid the assessed penalties, interest and attorneys fees under protest, La. Rev.Stat. 47:2110 provided a procedure to contest only the base ad valorem taxes owed, and not to contest additional fees assessed for the collection of the base taxes.

The City argues that the amendment to La.Rev.Stat. 47:2110 A deleting the phrase “or the enforcement of any provision of the tax laws in relation thereto,” was made by the legislature merely to remove the phrase because it was superfluous. The City bases this argument on the fact that La.Rev.Stat. 47:2110 B has always contained, and continues to contain, reference to the “method of enforcement thereof.”

First, it is unlikely that the legislature passed a bill and enacted legislation merely to remove superfluous language. Second, and more probably, the legislation was enacted in response to this Court’s opinion in Affordable Housing, supra. Thus, under this theory, when one reads La.Rev.Stat. 47:2110 A and B together, it is clear that the legislature intended to remove the language providing for paying penalties and interest under protest from the statute. La.Rev.Stat. 47:2110 B clearly states “[t]he right to sue for recovery of a tax paid under protest as provided herein ...” Section A does not provide for suits to protest payment of penalties and interest.

On February 21, 2002, the City Council adopted Ordinance No. 20556, designed to fill the gap created by the 2000 amendment to La.Rev.Stat. 47:2110. The Ordinance was passed “to provide for a legal mechanism to challenge the imposition of collection penalties by paying such penalties under protest, and to otherwise to provide with respect thereto.” Specifically, Section 150-46.7 of the Code of the City of New Orleans was amended to read:

A. With respect to any penalty assessed under subsections 150-46.2 or 150-46.3 of this ordinance, the taxpayer may challenge such penalty by paying the penalty under protest no later than May 1 of the year in-which the penalty was imposed with a letter delivered to the Director of Finance at the time of payment (1) notifying the Director that the penalty.is being paid under protest, (2) stating, the grounds for the protest, and (3),.thereafter filing suit to recover the penalty amount within 30 days of the date on which the penalty was paid.
B. With respect to any penalty under subsections 150-46.2 or 150-46.3 of this ordinance assessed prior to the effective date of this amendment, and which penalty or penalties have not been paid as of the date of this amendment, the taxpayer may challenge such penalty • by paying the penalty under protest no later than May 1, 2002 with a letter delivered to the Director of Finance at the time of payment (1) notifying the Director that the penalty is being paid under protest, (2) stating the grounds for the protest, and (3) thereafter filing suit to recover the penalty amount within 30 days of the date on which the penalty was paid.

Defendants argue that the amended ordinance applies to plaintiffs, and because the plaintiffs did not file suit within 30 days of making their protest known, their suit has prescribed.

We disagree. The amended ordinance cannot apply to plaintiffs in this instance because Section A of the ordinance can only be applied prospectively. Section B cannot apply to these particular taxpayers because, although Section B applies to taxpayers who were assessed penalties prior to the effective date of the ordinance, the Section specifically states that it is effective as to taxpayers who have not paid the penalties as of the effective date of the ordinance. Plaintiffs in this case paid the assessed penalties prior to February 1, 2002. As such, the amended ordinance does not apply to these plaintiffs.

Thus, La.Rev.Stat. 47:2110 is not applicable in this case because the statute in effect at the time of the relevant events did not contain the language necessary to apply to penalties assessed over and above the base tax. Further, Ordinance No. 20556 does not apply because plaintiffs had already paid the assessed penalties at the time the ordinance was adopted. As such, there was no applicable prescriptive period in effect at the time these particular plaintiffs protested payment of the assessed penalties. Accordingly, the judgment of the trial court granting defendants’ exception of prescription is reversed. This matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

McKAY, J., dissents for the reasons assigned by Judge CANNIZZARO.

CANNIZZARO, J., dissents with reasons.

h CANNIZZARO, J.

dissents with reasons.

I respectfully dissent. The majority bases its decision on the provisions of La. R.S. 47:2110(A) but neglects to mention La. R.S. 47:2110(B), which provides in relevant part as follows:

The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action at law ... for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof.

(Emphasis added.)

La. R.S. 47:2110(A), which provides for a thirty day prescriptive period must be read in conjunction with La. R.S. 47:2110(B). See, e.g., Hollingsworth v. City of Minden, 2001-2658 (La.6/21/02), 828 So.2d 514, where the Louisiana Supreme Court stated that “courts are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided.” 2001-2658, p. 5, 828 So.2d at 517 (citing Langlois v. East Baton Rouge Parish School Board, 99-2007 (La.5/16/00), 761 So.2d 504). When La. R.S. 47:2110(A) is read with La. R.S. 47:2110(B), it is clear that the thirty day prescriptive period applies not only to suits to recover taxes paid under protest but also to suits related to the method of enforcement of tax payments.

Applying the rule of statutory construction set forth above, it is clear that the phrase “or the method of enforcement thereof’ must be given meaning and must be read within the context of the entire statutory scheme of which it is a part. When this is done, the thirty day prescriptive period in La. R.S. 47:2110(A) must be applied to the provisions of La. R.S. 47:2110(B). Therefore, I respectfully dissent from the majority opinion, because the taxpayers in this case did not timely file their suit to recover the payments made in connection with the enforcement of the tax statutes. The claims of the taxpayers have prescribed, and the decision of the trial court should be affirmed.

McKAY, J., dissents for the reasons assigned by Judge CANNIZZARO.

      . The record does not indicate that the attorney general answered the petitions or made any appearances in this matter.

      . The parties agree that claims stemming from the second amended petition are pending, and are not at issue in this appeal.

      . Plaintiffs also filed an application for supervisory writs. This Court declined to exercise its supervisory jurisdiction.


author: WILLIAMS, Judge.

text:
    James W. LONG, et al., Plaintiff-Appellee, v. STATE of Louisiana, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 37,422-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 24, 2003.
    Rehearing Denied Jan. 22, 2004.

      Louisiana Department of Justice, by William E. Crawford, Jr., James R. Dawson, Baton Rouge, for Appellant.
    Richard L. Fewell, Jr., West Monroe, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   WILLIAMS, Judge.

The defendant, Louisiana Department of Transportation & Development (DOTD), appeals a judgment in favor of the plaintiffs, James Long, Christopher Long and Jamie Long Coley. After a trial, the jury assessed 60% fault to DOTD in causing the fatal automobile/train collision, 20% fault to decedent, Betty Long, 10% fault to the Village of Bonita and 10% to Union Pacific Railroad. The jury awarded plaintiffs survival and wrongful death damages. For the following reasons, we affirm.

FACTS

On September 10, 1997, at a railway crossing on Harp Street in the Village of Bonita, Louisiana, a Union Pacific train struck an automobile driven by Betty Long, who died as a result of injuries sustained in the collision. Her husband, James Long, her adult daughter, Jamie-Long Coley, and her minor son, Christopher Long, brought wrongful death and survival actions against the defendant, DOTD.

Plaintiffs alleged that the DOTD had assumed a duty two years earlier to signalize the crossing, but'negligently breached this duty in failing to erect adequate warning devices at the crossing. In support of this allegation, plaintiffs presented to the court correspondence between Mayor Michael J. Lytle of Bonita and the DOTD, consisting of three letters written in May and September 1995.

In the May 1995 letter, the mayor notified DOTD of a fatal collision at the Harp Street crossing the week before and stated, “The grade crossing is unmarked except for wooden crossbucks.... There have been two previous accidents at this crossing, one with a fatality in the last eight years. I believe that some additional warning is needed at -this crossing....” In September 1995, DOTD responded that “the Department plans to signalize the railroad crossing from funds available through a federal safety program. In order to comply with Federal Highway Administration requirements, the local governing body must agree by letter or resolution to maintain both pavement striping and signs.... Upon receipt of your concurrence, the Department will proceed with the necessary steps to obtain approval from FHWA to complete the-project.” On September 13, 1995, Mayor Ly-tle responded that he had received DOTD’s letter “stating your intention to signalize the above referenced railroad crossing. We understand our obligation to maintain the pavement striping and signs. By this letter we agree to maintain the pavement striping and signs.”

In response to the petition, DOTD filed a motion to strike the letters from the record and a motion for summary judgment, which asserted that the Harp Street crossing was not part of the state highway system and that DOTD was not responsible for maintenance of such “off-system” crossings. The motions asserted that DOTD’s correspondence with Mayor Lytle was information collected solely due to DOTD’s participation in the Federal Railway Upgrade Safety Program, 23 U.S.C. § 130, and was thus protected from discovery or admission into evidence pursuant to 23 U.S.C. § 409.

DOTD submitted affidavits from Steven Cumbaa, DOTD’s construction services engineer, and William Shrewsberry, DOTD’s administrator of the Federal Railroad Safety Program (“FRSP”). Cumbaa stated that the crossing was not part of the state highway system and Shrewsberry indicated that the only reason DOTD compiled information about the crossing was to comply with the FRSP.

The district court granted the motion to strike the correspondence from the record and granted DOTD’s motion for summary judgment, dismissing plaintiffs’ claims. This court reversed the summary judgment, finding that the district court improperly excluded the two September 1995 letters from evidence because they did not contain any information from reports, surveys or data concerning safety improvement of railway-highway crossings. We concluded that a material issue of fact existed regarding the issue of whether DOTD had assumed a duty to install warning signals at the crossing. Long v. State, DOTD, 32,124 (La.App.2d Cir.8/18/99), 743 So.2d 743.

Subsequently, DOTD filed a second motion to strike the letters and submitted a revised affidavit from Shrewsberry, who testified that the September 1995 letters were maintained as a necessary part of the process to upgrade the Harp Street crossing pursuant to DOTD’s administration of the FRSP. The trial court denied the motion to strike. Prior to trial, the parties stipulated that at the time of the accident, the railroad crossing, tracks and crossbuck signs in place were owned and maintained by Union Pacific, the approaches to the Harp Street crossing and the existing stop signs were owned and maintained by the Village and that DOTD had never maintained the crossing.

After a trial, the jury found that DOTD was liable for the collision which resulted in the death of decedent and assessed 60% fault to DOTD, |420% fault to decedent, Betty Long, 10% fault to the Village of Bonita and 10% to Union Pacific Railroad. The jury awarded plaintiffs survival and wrongful death damages and the lost wages of decedent. After revising the jury’s awards to conform with the statutory damages cap and the 40% comparative fault assessment, the trial court rendered judgment awarding damages of $131,578.75 for decedent’s pain and suffering before death, $210,523.75 to decedent’s husband, James Long, $78,948.75 to each of the children, Chris Long and Jamie Coley, and awarding $232,952 for decedent’s lost wages. DOTD appeals the judgment.

DISCUSSION

DOTD contends the trial court erred in admitting into evidence the September 1995 letters between DOTD and the Village. DOTD argues that the correspondence concerned a proposed federally funded safety project at the Harp Street crossing and should have been excluded from evidence.

Under Louisiana law, parties may obtain discovery regarding any material not privileged which is relevant to the subject matter of the action. LSA-C.C.P. art. 1422. Evidence which is relevant is generally admissible. LSA-C.E. art. 402. With regard to certain highway safety information, however, Louisiana’s law is preempted by federal law. Wiedeman v. Dixie Electric Membership Corp., 627 So.2d 170 (La.1993).

23 U.S.C. § 409 provides that reports, surveys, schedules, lists or data compiled or collected for the purpose of identifying, evaluating or planning the safety enhancement of railway-highway crossings pursuant to the federal railroad safety program, or for developing any highway safety improvement project utilizing federal funds, shall not be subject to discovery or admitted into evidence in a federal or state court proceeding or in any action for damages arising from any occurrence at a location mentioned in such reports, surveys, schedules, lists or data. In Wiedeman, supra, the supreme court stated that since preemption is never presumed, Section 409 must be construed restrictively to prohibit only what is expressly proscribed.

In Reichert v. State, DOTD, 96-1419 (La.5/20/97), 694 So.2d 193, the court addressed the admissibility of four exhibits. Each of these exhibits contained or made reference to a report or study produced pursuant to the State’s effort to obtain federal funds for safety improvements. The court concluded that the exhibits “reflect[ed] information collected and compiled by the DOTD in furtherance of potential highway safety projects that may have been supported by federal funds” and were, thus, inadmissible.

In Palacios v. Louisiana and Delta Railroad, Inc., 98-2932 (La.7/2/99), 740 So.2d 95, the supreme court stated that in cases involving railway crossing collisions, the protection of Section 409 will apply to: (1) reports, surveys, schedules, lists or data, (2) compiled or collected, (3) for the purpose of identifying, evaluating or planning the safety enhancement of railway-highway crossings, (4) pursuant to 23 U.S.C. § 130. Reviewing the September

1995 correspondence in light of the criteria and analysis set forth in Reichert and Palacios, this court in Long, supra previously concluded:

[T]he letter[s] ... contain no information restricted by the statute. Although the letter from the DOTD specifies that the federal government is the expected source of funds for the planned improvement, it makes no reference whatsoever to any “reports, surveys, schedules, lists, or data,” — the only items “expressly proscribed” from admission or discovery. Palacios, supra; Wiedeman, supra. These letters are unlike the exhibits in Reichert which contained reports or data along with information about the DOTD’s plans. Further, the letters contain no suggestion that the planned improvement was based on any of the restricted information. We, therefore, distinguish these letters from the contract involved in Stephens v. Town of Jonesboro, 25,715 (La.App.2d Cir.8/19/94), 642 So.2d 274, which contained “information relating to a highway safety construction improvement.”

The September 1995 letters can also be distinguished from the documents at issue in Rodenbeck v. Norfolk & Western Railway Co., 982 F.Supp. 620 (N.D.Ind.1997). In that case, the correspondence between a railroad executive and county officials referred to a federal report regarding regulatory guidelines for the installation of stop signs at rail crossings and to statistical data indicating a decrease in collisions at crossings equipped with stop signs. A county official responded that installation of stop signs would increase the county’s liability without providing adequate safety at the crossings listed and suggested instead that the railroad install warning signals. Thus, unlike the correspondence at issue in the present case, the letters in Rodenbeck discussed safety-related reports, surveys and data.

In its brief, DOTD contends the letters should have been excluded from evidence because they were written to satisfy the requirements of the federal aid program and were included in DOTD’s Harp Street crossing file, which was admitted into evidence as a sealed exhibit. However, not all documents in the state’s possession will be privileged under Section 409 and protected from admissibility. Palacios, supra. The content of the document must be examined with regard to the provisions of the statute.

Based upon further review of the record and of the applicable statutory law and jurisprudence, we have not been presented with sufficient reason to alter this court’s prior conclusion that the two letters at issue neither contain nor refer to the type of safety information which is precluded from evidence by the statute. Consequently, we cannot say the trial court erred in admitting the September 1995 letters into evidence. The assignment of error lacks merit.

Liability

The defendant contends the jury erred in assessing 60% fault to DOTD in causing the accident. Defendant argues it is not liable because the evidence showed that DOTD did not assume a duty to upgrade the crossing and that decedent caused the accident by failing to obey the stop sign.

In a proceeding against the State DOTD under either negligence or strict liability, the plaintiff must prove that (1) the thing was in the custody of DOTD, (2) the thing was defective because of an unreasonably dangerous condition, (3) DOTD possessed actual or constructive knowledge of the defect and failed to take corrective measures in a reasonable time, and (4) the defect was a cause of plaintiffs injuries. Netecke v. State, DOTD, 98-1182 (La.10/19/99), 747 So.2d 489. DOTD has a duty to maintain the public roadways in a reasonably safe condition for motorists exercising ordinary care. Netecke, supra. Once a duty is assumed, negligent breach of that duty may create liability. Long, supra.

A motorist approaching a railroad crossing has a heightened duty of care. The motorist must use her senses of sight and hearing for possible approaching trains. Wilkerson v. Kansas City Southern Railway, 33,922 (La.App.2d Cir.11/1/00), 772 So.2d 268.

In the present case, Lee Cleveland, the police chief of Bonita, testified that he investigated the scene of the accident. He stated that the decedent, Betty Long, had been ejected from her vehicle and was lying on the ground with obviously serious injuries. Cleveland noted in his report that there were no obstructions blocking the driver’s view of the stop sign or the crossing. Cleveland reported that a witness stated that decedent had driven through the stop sign.

Danny McGrew, the Morehouse Parish Sheriff, testified that at the time of the accident, he was a state trooper and had been instructed by the district attorney to examine the Harp Street crossing to assess whether it could be made safer. McGrew was accepted as an expert in accident reconstruction. McGrew stated that the conductor told him the train’s speed was 55 mph, or 81 feet per second, as it approached the crossing. McGrew testified that because of the curve in the railway track south of the crossing and the stationary boxcars on the spur track to the side of the main track, the approaching train would not have been visible to decedent as she turned left from Highway 165 onto Harp Street. McGrew opined that this crossing was dangerous due to the lack of adequate signals and the excessive speed of the train for that location. He stated that the presence of boxcars oh the spur track combined with the curving main track limited a driver’s view. McGrew also opined that if signal lights had been installed, or if decedent had stopped at the stop sign, then the accident would not have occurred.

Duaine Evans, a registered engineer and former employee of the state highway department, was accepted as an expert in accident reconstruction and traffic planning. Evans testified that with boxcars on the spur track, he measured a sight distance of 1,000 feet from the stop sign at the crossing looking south along the main track. He stated that this did not meet the “Railroad Crossing Handbook” recommendation of a 1,400 foot sight distance for the 60-mph track involved in this situation.

Evans testified that in evaluating a crossing, a traffic engineer must consider the “human element,” which involves a driver’s perception and reaction time. Evans stated that the more complicated the surroundings, the longer the driver’s reaction time. In this situation, Evans surmised that when the decedent approached the crossing and looked to her left, given the curving track she may only have seen the boxcars on the spur track and not have perceived the approaching train. Evans opined that at the time of the accident this crossing was particularly hazardous due to the lack of adequate warning devices, the limited sight distance resulting from the curve of the track and the speed of the train.

The defendant presented the testimony of William Shrewsberry, Jr., DOTD’s administrator of the FRSP, which provides federal funds for state projects to improve the safety of public railway crossings. Shrewsberry testified that DOTD evaluates crossings and sets priorities for the distribution of limited federal funds. He explained that if'the crossing is not on a state highway, DOTD must get a commitment from the local governing authority, reach agreement with the railroad and obtain authorization from the federal agency. Shrewsberry testified that even when all the requirements have been completed, DOTD has discretion not to request federal funding for a particular project based.on its ongoing evaluation of public crossings. Shrewsberry acknowledged that the letter to the mayor stated that DOTD “plans to signalize the railroad crossing” and that upon receipt of the Village’s agreement to maintain the pavement markings and warning signs, DOTD would “proceed with the necessary steps to obtain approval from FHWA to complete the project.” Shrewsberry testified that the Harp Street crossing had not been signalizéd in part because the FHWA required DOTD to reevaluate all of the safety projects under consideration.

Brenda Woodard testified that she was working at the gas station across the street from the Harp Street crossing. Woodard stated that while she was looking out of the window she heard the train’s horn blowing, saw decedent’s automobile driving on Harp Street and then watched the train hit the vehicle. Woodard did not recall if there were boxcars on the spur track at the time.

Charles Cook testified that on the day of the accident, he was sitting in his truck approximately fifty yards from the Harp Street crossing. Cook stated that he saw decedent’s automobile approach the crossing and that she did not stop at the stop sign before entering onto the tracks. However, Cook testified that he did not see any boxcars on the spur track.

The DOTD contends it did not have custody of the Harp Street crossing. Despite DOTD’s contention, the jury could have reasonably found that DOTD exercised custody and control over the crossing by expressing its intent to seek federal approval for installation of the warning devices and asking for a maintenance commitment from the mayor in the September 6,1995 letter.

The evidence shows that at the time of the accident, the only signs present as decedent approached the crossing were a railroad crossbuck sign and a leaning stop sign placed off to the side of the shoulder of Harp Street. The plaintiffs produced expert testimony that the characteristics of the crossing, including the curving track, the lack of additional warning devices and the regular presence of boxcars on the spur track, created an unreasonable risk of harm by limiting a driver’s ability to perceive an oncoming train when approaching the railway tracks.

Additionally, the testimony presented supports a finding that DOTD received knowledge of the crossing’s defect through the communication of Mayor Lytle and the prior visit to the site by a DOTD employee. Further, DOTD acknowledged its awareness that additional warning devices were required by its decision to implement the process for upgrading the crossing. Both McGrew and Evans opined that the accident would not have occurred if adequate warning devices had been installed at the crossing. Thus, the jury could have found that DOTD’s failure to complete the crossing upgrade was a cause of Long’s death.

The jury heard the testimony and weighed the credibility of the witnesses. The jury was able to evaluate the duties of the decedent and DOTD with respect to the railway crossing and their relative capacities to act so as to avoid this accident. After reviewing the entire record, we cannot say the jury’s allocation of fault was manifestly erroneous. Therefore, we | will not disturb the result. The assignment of error lacks merit.

Damages

The defendant contends the jury’s award of $250,000 for the survival action was excessive. Defendant argues that the award should be reduced because the plaintiffs did not produce expert testimony that decedent was consciously aware of her pain before death.

The survival action includes recovery of damages for mental or physical pain and suffering and other damages sustained by the decedent up to the moment of death. McGrail v. Lee, 35,756 (La.App.2d Cir.4/3/02), 814 So.2d 729. Damages for pain and suffering are properly awarded if there is a scintilla of evidence of any suffering or pain on the part of the deceased by his or her actions or otherwise. McGrail v. Lee, supra.

An appellate court may disturb an award of damages only when the record clearly shows that the factfinder abused its broad discretion in making the award. After a determination that an award constitutes an abuse of discretion based on the particular injuries sustained and their effect on the particular injured person, the appellate court may reduce or increase the award to the highest or lowest amount reasonably within the factfinder’s discretion. Wilson v. Nat’l Union Fire Ins. Co., 27,702 (La.App.2d Cir.12/6/95), 665 So.2d 1252.

In the present case, Darrel Johnson testified that he was in the gas station across from the Harp Street crossing when he heard the sound of the train’s collision with the automobile. Johnson stated that he went to the scene and observed decedent lying on the ground. Johnson testified that he knelt beside the decedent, saw that she was alive and tried to give her comfort. Johnson stated that when he called decedent’s name, she tried to respond by making gurgling sounds. He testified that in response to his questions, the decedent’s body tensed and she appeared to try to speak, but could not form words. Johnson testified that decedent experienced difficulty breathing and that her body was “mangled” with apparent severe fractures of her arms and legs. Johnson estimated that the decedent lived for approximately 20 to 30 minutes after the impact.

Based on the testimony and the photographs depicting the extensive damage caused to decedent’s vehicle, there was evidence from which the jury could find that the decedent was conscious for a period of time following the collision and that she experienced pain and suffered prior to losing consciousness. Consequently, we cannot say that the award of $250,000 in survival damages was an abuse of the jury’s broad discretion. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Louisiana Department of Transportation and Development, to the extent allowed by law.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, PEATROSS, and DREW, JJ.

Rehearing denied.


author: THOMAS F. DALEY, Judge.

text:
    AUDUBON TRACE CONDOMINIUM ASSOCIATION, INC. v. BRIGNAC-DERBES, INC., Ronald L. Brignac, Individually, John J. Derbes, Individually, Lawrence. Derbes, Individually, et als.
    No. 03-CA-746.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Scott P. Yount, Ashley Miller Scott, Preston & Cowan, L.L.P., New Orleans, LA, Counsel for Defendant/Appellant, Gulf Insurance Company.
    Henry W. Kinney, Tara E. Clement, Kinney & Ellinghausen, Patrick D. Bree-den, New Orleans, LA, Counsel for Defendant/Appellee/2nd Appellant, John J. Derbes.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

Third party defendant, Gulf Insurance Company (Gulf), appeals the trial court’s partial grant of third party plaintiff, John J. Derbes’s, Motion to Assess Attorney Fees and Costs, arguing that the trial court was incorrect in implicitly finding that Gulf had the duty to defend him in the main demand. John J. Derbes also appeals the judgment, arguing that the trial court erred in denying him attorney fees and costs associated with litigating the coverage issue. After thorough consideration of the law and evidence, we affirm.

PROCEDURAL HISTORY

In 1996, plaintiff, Audubon Trace Condominium Association, Inc. sued defendant, Brignac-Derbes Inc. (Brignac-Derbes), developer of Audubon Trace Condominiums, John J. Derbes (Derbes) personally, a principal of Brignac-Derbes, and other defendants for property damages resulting from the alleged faulty construction of said condominiums. Derbes filed Exceptions and Answers to plaintiffs Petition. He also filed a Third Party Demand against various insurers who, at various times, were alleged to have issued different insurance policies to Brignac-Derbes, alleging insurance coverage of the alleged acts/omissions.

This appeal concerns Third Party Defendant, Gulf Insurance Company, who issued a Comprehensive General Liability Policy to Brignac-Derbes effective April 4, 1985 to July 1, 1985. Gulf filed Exceptions and Answers to both the plaintiffs Petition and Derbes’s Third Party Demand, denying coverage for the allegations in plaintiffs Petitions under several grounds, both that the coverage provided did not cover the factual allegations in the Petition, and also that several exclusions applied.

Apparently at some point, Derbes was dismissed from the main demand, though neither the pleadings concerning this dismissal nor judgment appear in the appeal record. Also not of record, Gulf filed a Motion for Summary Judgment on July 6, 2000, arguing that its policy did not provide coverage to Brignac-Derbes for the acts alleged in the plaintiffs Petition, and that several coverage exclusions applied. The Motion was denied by the trial court on May 9, 2001, without reasons.

Gulf took Writs to this Court, No. 01-C-671 (June 29, 2001), which denied the application. Writs were also taken to the Supreme Court, which were denied on November 9, 2001 (No.2001-CC-2214).

On September 30, 2002, Derbes filed a Motion to Assess Attorney Fees and Costs against Gulf. Gulf opposed the Motion on procedural grounds, and further, argued that the policy did not provide coverage to Derbes.

The trial court granted the Motion in part, granting Derbes attorney fees and costs associated with his defense, but denying Derbes the portion of attorney fees for litigating the coverage issue. The judgment was certified as final and immediately appealable.

Gulf appealed, arguing that the Motion to Assess Attorney Fees was premature since the issue of coverage and the duty to defend has never been decided by the trial court. Gulf also argues that Derbes should have filed a Motion for Summary Judgment on the duty to defend issue before filing a Motion for Fees and Costs.

Derbes also appealed, arguing that he is entitled to all of his claimed attorney fees and costs, including the portion incurred litigating the coverage issue.

GULF’S APPEAL

Gulf first argues that the trial court committed reversible error, in granting Derbes’s Motion, by implicitly finding that Gulf owed Derbes the duty to defend under Gulfs policy. They argue that there is no coverage under their policy to Derbes, and hence there is no duty to defend.

As this court recently stated in Houghtaling v. Richardson, 01-208 (La.App. 5 Cir. 10/17/01), 800 So.2d 1012:

Generally, the insurer’s obligation to defend suits against its insured is broader than its liability for. damage claims. Yount v. Maisano [93-C-1276 (La.11/29/1993), 627 So.2d 148], supra. The insurer’s duty to defend suits brought against its insureds is determined by the allegations of the plaintiffs petition, and the insurer is obligated to defend the insured, unless the petition unambiguously excludes coverage. The allegations in the petition are to be construed liberally to determine whether they state grounds bringing the claims within the scope of the insurer’s duty to defend. Assuming all the allegations of the petition to be true, if there would be coverage under the policy and also liability to the plaintiff, the insurer must defend the suit, regardless of the outcome of the suit. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. The duty to defend is determined solely from the plaintiffs pleadings and the face of the policy, without consideration of extraneous evidence. Yount v. Maisano, supra; KLL Consultants, Inc. [99-CA-14 (La. App. 5 Cir. 06/01/1999), 738 So.2d 691], supra.

We agree that the trial court implicitly found that Gulf owed a defense to Derbes on the main demand.

We find that when the trial court denied Gulfs Motion for Summary Judgment on coverage in 2000, and Writs were denied by both this Court and the Supreme Court, implicit in those rulings is three courts’ findings that Gulfs policy did not unambiguously exclude coverage to Derbes. Hence, under Houghtaling and the cases cited therein, Gulf owed Derbes the duty to defend. Therefore, we find no reversible error in the trial court’s partial grant of Derbes’s Motion to Assess Attorney Fees.

DERBES’S APPEAL

Derbes appeals also, arguing that the court erred in granting only part of his Motion. He argues that the trial court erred in not awarding him attorney fees and costs associated with litigating the coverage issue. We disagree. The law is clear in this respect. An insured cannot recover its attorney fees in connection with litigation of a coverage issue where neither the insurance contract nor any statute provided for fees under such circumstances. Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213. A review of the insurance contract language shows that it does not provide for these fees, nor is there any statute that would apply.

On appeal, Derbes argues that he is owed penalties under LSA-R.S. 22:1220. We disagree. The procedural history of this case supports our finding that Gulf has been in good faith in its dispute of its coverage/duty to defend issues.

Accordingly, the judgment is affirmed, each party to bear their own costs.

AFFIRMED.

      . The record was designated on appeal. Derbes's dismissal is noted in Derbes’s appellate brief, but the date of the dismissal is not established.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Curtis P. MEDINE, Individually and Michael Buck as Tutor and Legal Guardian of John Michael Kramer, Minor Child of Janice Buck Medine v. Dr. Richard R. RONIGER.
    No. 03-CA-819.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.
    Patrick H. Hufft, Hufft & Hufft, A.P.L.C., New Orleans, LA, Counsel for John Michael Kramer, Plaintiff-Appellant.
    Aub A. Ward, Naquin & Ward, Baton Rouge, LA, Counsel for Curtis P. Medine, Plaintiff-Appellant.
    Peter E. Sperling, John B. Cazale, Gary L. Hanes, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, Counsel for Dr. Richard R. Roniger, Defendant-Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

In this medical malpractice action, plaintiffs appeal from a judgment of the trial court rendered in defendant’s favor. For reasons stated more fully herein, we affirm.

Facts and Procedural History

Janice R. Medine was treated by Dr. Richard Roniger, a psychiatrist, from 1988 until 1990. On December 10, 1990, Mrs. Medine committed suicide by ingesting an overdose of prescribed medication. She was survived by her husband, Curtis Med-ine, and her eight year old son, John Kramer.

On November 27, 1991, Curtis P. Med-ine and John Michael Kramer filed a complaint with the Louisiana Patient’s Compensation Fund alleging medical negligence against Dr. Richard Roniger following the death of Janice R. Medine. The claimants specifically alleged that Dr. Roniger had breached the applicable standard of care by prescribing improper quantities of medication in light of Mrs. Medine’s history of suicide attempts and by Dr. Roniger’s failure to properly monitor Mrs. Medine’s medication prescriptions. The claim further alleged that Mrs. Medine’s suicide was a result of the negligence of Dr. Roniger.

In accordance with the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq., the complaint was presented to a medical review panel. The panel was composed of Dr. Frederick Henderson, Dr. Clyde Watkins, Jr., and Dr. Richard Ri-choux. On June 15, 1993, the panel issued its opinion that the evidence presented did not support a finding that Dr. Roniger had failed to meet the applicable standard of care.

On August 4, 1993, the instant petition for damages was filed in district court against Dr. Roniger. Dr. Roniger answered the petition, generally denying plaintiffs’ allegations. After numerous continuances and delays, the matter proceeded to trial by jury on April 22, 2003. As indicated by the jury interrogatories completed at the conclusion of trial, the jury determined that Dr. Roniger did not breach the standard of care for psychiatrists in his treatment of Janice Medine. Accordingly, the trial court rendered judgment on May 2, 2003 in favor of defendant, Dr. Richard Roniger, dismissing plaintiffs’ demands against him.

Plaintiffs now appeal from this judgment on the basis of three assignments of error. The first assignment raises the issue of whether the trial court erred in allowing two members of the medical review panel to testify at trial as experts for the defense. The remaining assignments contend that the trial court committed reversible error in failing to give two specific jury charges.

Discussion

Plaintiffs first contend that the trial court erred when it allowed Dr. Richard Richoux and Dr. Frederick Henderson to testify on defendant’s behalf as both members of the medical review panel and as the defendant’s own, hired expert witnesses. Plaintiffs contend that the Louisiana Medical Malpractice Act does not permit a panel physician to testify as a compensated expert for one of the parties. Rather, plaintiffs argue, the LMMA provides only that a party may call a panel physician as a trial witness to corroborate or to invalidate the panel’s expert opinion, and a party cannot make a panel member his own compensated expert witness.

In support of this argument, plaintiffs rely on the provisions of La. R.S. 40:1299.47(H) which states:

H. Any report of the expert opinion reached by the medical review panel shall be admissible. as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part.

Plaintiffs also rely on the provisions of La. R.S. 40:1299.47(0(5) which requires impartiality on the part of panel members and La. R.S. 40:1299.47(1) which sets the rate of pay for panel members who testify in district court. Contrary to plaintiffs’ assertions however, there is nothing in these sections or any of the other part of the malpractice act which provide that a party in a medical malpractice proceeding in district court is prevented from retaining a panel member as an expert at the trial of the matter. Rather, La. R.S. 40:1299.47(H) specifically allows either party to call a panel member as a trial witness at his cost. The statute does not limit the witness’ testimony in such a case.

Moreover, this identical issue has been previously addressed by the First Circuit. In Clelland v. Haas, 99-2971 (La.App. 1 Cir. 12/22/00), 774 So.2d 1243, 1246, plaintiff objected to a member of the medical review panel testifying as a panel member and as defendant’s expert. The trial court overruled plaintiffs objection, and plaintiff appealed. On appeal, the court found that plaintiff failed to provide the court with any jurisprudential support for her contention that medical review panel members cannot later be called to testify as an expert for one of the parties.

Although plaintiff in that case relied on the provisions of La. R.S. 40:1299.47C(7) which prohibits panel members from discussing the claim until all evidence has been submitted, the court found this provision to be inapplicable as the opinion of the panel had been rendered. The court stated as follows:

Nothing in the statute can be reasonably interpreted to prohibit contact or discussion between panel members and the parties involved in the claim after the medical review panel has issued its final opinion. Clearly, there is nothing in the statute to prohibit medical review panel members from subsequently testifying as an expert for either party at a trial concerning the same medical malpractice claim. Clelland v. Haas, 774 So.2d at 1247. (Emphasis added.)

Likewise, in the present case, the opinion of the panel was rendered prior to the trial of this matter in district court, and the provisions of La. R.S. 40:1299.47(0) regarding impartiality and an inability to discuss the case is no longer applicable. Further, La. R.S. 40:1299(H) specifically allows a party to call a panel member as a witness at the trial of the malpractice claim. We find no merit in plaintiffs’ argument that such testimony is limited by statute to the witness’ role as a panel member.

The record indicates that both Drs. Ri-choux and Henderson were listed in defendant’s pre-trial order as expert witnesses for the defense, and they were in fact the only two expert witnesses to testify on behalf of defendant at the trial concerning the same malpractice claim. Both witnesses testified in their capacity as panel members regarding the findings of the medical review panel. Further, Dr. Ri-choux also responded over the objection of plaintiffs’ counsel to questioning regarding the trial testimony of plaintiffs expert witness, Dr. Gary Miller, whose opinion was not previously presented to the medical review panel. The trial court found that since the panel did not have the benefit of Dr. Miller’s testimony, the panel members were not prohibited from giving their opinion on such testimony at trial.

We fail to find any legal or jurisprudential support for plaintiffs’ contention that the trial court erred in failing to limit the testimony of these witnesses to their findings as members of the review panel. Further, we fail to find any evidence that the jury was confused or misled by the testimony of these witnesses. Thus, we find no error in the trial court’s decision to allow Drs. Richoux and Henderson to testify as experts for Dr. Roniger at the trial of plaintiffs’ medical malpractice claim.

Further, we find no error of the trial court in failing to give a jury instruction concerning the dual-role capacity of defendant’s expert witnesses. As stated previously herein, the provisions of the malpractice act do not distinguish between an expert witnesses’ testimony as a panel member or as a witness retained by one of the parties, and the charge suggested by plaintiffs does not reflect an accurate statement of the law. Further, plaintiffs have failed to show prejudice as a result of the trial court’s failure to instruct the jury on this issue.

Finally, plaintiffs contend that the trial court erred in failing to include within its charge to the jury a proposed special instruction drawn from this Court’s decision in Chauvin v. West Jefferson Mental Health Center, 597 So.2d 134 (La.App. 5 Cir.1992). Plaintiffs contend that the holding in Chauvin created a principle of law that psychiatrist treating a person with a history of depression or suicidal tendencies should restrict the medication dispensed to the smallest feasible amount. We have reviewed this Court’s previous decision in Chauvin, and we fail to find that the holding therein created an elevated duty on the part of psychiatrists treating suicidal patients requiring the specific charge in this case. Further, we have carefully reviewed the jury charges in the present case, and we find that the charges presented by the trial court accurately and amply set forth the necessary burden of proof imposed on the plaintiffs. Under these circumstances, we find no error of the trial court in failing to give the charge as requested by plaintiffs in this case.

Conclusion

Accordingly, for the reasons assigned herein, the trial court judgment in favor of Dr. Richard Roniger, dismissing the claims of plaintiffs against him, is hereby affirmed at plaintiffs’ costs.

AFFIRMED.