author: RGUIDRY, J.

text:
    Emmalene K. HEBERT v. TERREBONNE PARISH SCHOOL BOARD.
    No. 2003 CA 1444.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      J. Rene Williams, Houma, Counsel for Plaintiff'Appellant Emmalene K. Hebert.
    Bernard F. Levy, Houma, Counsel for Defendant/Appellee Terrebonne Parish School Board.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   RGUIDRY, J.

In this workers’ compensation action, plaintiff, Emmalene Hebert, appeals the judgment of the Office of Workers’ Compensation (OWC) dismissing her claim for compensation with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In May 1993, Ms. Hebert was injured while employed by the defendant, Terre-bonne Parish School Board (School Board), as a teacher’s aide. Thereafter, the School Board voluntarily paid compensation benefits in the amount of $116.11 per week. Beginning in 1995, Ms. Hebert also started to receive disability retirement benefits from the Teachers’ Retirement System. However, in March 2001, the School Board stopped paying workers’ compensation benefits based on an alleged overpayment that had occurred.

On February 20, 2002, Ms. Hebert filed a disputed claim form with the OWC, requesting compensation benefits to which she was entitled from the date the School Board stopped making payments. In its answer, the School Board stated that Ms. Hebert’s actual compensation rate was $112.27 per week. The School Board also claimed that, because Ms. Hebert was receiving disability retirement benefits from the Teacher’s Retirement System and the School Board contributed to the retirement system, it is entitled to a credit for a portion of such payments against its workers’ compensation liability. Finally, the School Board contended, in response to Ms. Hebert’s claims, that she has been compensated for the period during which she was permanently disabled and that she is capable of engaging in employment earning ninety percent or more of her average weekly wage at the time of her injury.

|3Following a hearing, the workers’ compensation judge signed a judgment on April 24, 2003, finding that Ms. Hebert: (1) failed to prove by clear and convincing evidence that she is unable to engage in employment of any kind; (2) failed to prove by clear and convincing evidence that she is totally and permanently disabled; (3) failed to prove by clear and convincing evidence that she is unable to earn ninety percent of her pre-injury wages; and (4) is not entitled to supplemental earnings benefits (SEB). Additionally, the workers’ compensation judge found: (1) Ms. Hebert was overpaid compensation benefits by the School Board and therefore, the School Board is entitled to recover the overpayment in the total amount of $1,516.80 from Ms. Hebert’s future benefits; and (2) the School Board is entitled to an offset against compensation liability in the amount of $9,988.52, which is 61.72% of Ms. Hebert’s paid retirement benefits. Accordingly, the workers’ compensation judge dismissed Ms. Hebert’s compensation claim with prejudice.

ASSIGNMENTS OF ERROR

Ms. Hebert now appeals from this judgment and asserts the following assignments of error:

1. The workers’ compensation judge erred in concluding that the School Board was entitled to a credit for alleged overpayments previously made because of the School Board’s failure to properly calculate the amount of her benefits or to properly calculate an offset against her disability retirement benefits, to which it may be been entitled.
2. The workers’ compensation judge erred in concluding that Ms. Hebert failed to prove by clear and convincing evidence that she is unable to engage in employment of any kind.
|43. The workers’ compensation judge erred in concluding that Ms. Hebert failed to prove by clear and convincing evidence that she is totally and permanently disabled.
4. The workers’ compensation judge erred in concluding that Ms. Hebert failed to prove by clear and convincing evidence that she is unable to earn ninety percent of her pre-inju-ry wages.
5. The workers’ compensation judge erred in concluding that Ms. Hebert is not entitled to SEB.

DISCUSSION

Standard of Review

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying the manifest error standard, 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. Banks, 96-2840 at pp. 7-8, 696 So.2d at 556. As such, 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. Williams v. Wal-Mart Stores, Inc., 00-1347, p. 4 (La.App. 1st Cir.9/28/01), 809 So.2d 294, 298. Further, where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Williams, 00-1347 at p. 4, 809 So.2d at 298.

Credit for Overpayment of Compensation Benefits

Louisiana Revised Statutes 23:1206 provides as follows:

|KAny voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, that were not due and payable when made, may be deducted from the payments to be made as compensation.

This statute entitles an employer to a credit for previous overpayments from future compensation, which may be due. Fontenot v. Trans Gulf, Inc., 95-0342, pp. 18-19 (La.App. 1st Cir.11/9/95), 664 So.2d 1238, 1250. Further, this statute applies even if the overpayment is due to the employer’s error in calculating benefits. Ferrand v. D.H.L. Co., 614 So.2d 350, 354 (La.App. 4th Cir.1993)

In the instant case, the School Board voluntarily made compensation payments to Ms. Hebert. However, due to a miscalculation by the School Board, Ms. Hebert was paid an additional $3.84 per week for approximately seven years. As such, the workers’ compensation judge determined that Ms. Hebert was paid compensation in the amount of $1,516.80, which was not due and payable when made. In accordance with La. R.S. 23:1206, the School Board was entitled to a credit for its overpayment of benefits. Additionally, it has been held that discontinuation of benefits until the overpayment is recouped is permissible and proper under La. R.S. 23:1206. See Breaux v. Petro Drive, Inc., 534 So.2d 48, 49 (La.App. 3rd Cir.1988); Ferrand, 614 So.2d at 354. Therefore, we find no error in the judgment of the workers’ compensation judge, finding that the School Board is entitled to recover its overpayment from Ms. Hebert’s future benefits.

Offset or Credit for Disability Retirement

As stated previously, Ms. Hebert not only received compensation payments from the School Board, but beginning in 1995, she also started to receive disability retirement benefits from the Teachers’ Retirement System. According to the applicable version of La. R.S. 23:1225(C)(1):

If an employee receives remuneration from:
(a) Benefits under the Louisiana Worker’s Compensation Law.
| (j(b) Old-age insurance benefits received under Title II of the Social Security Act to the extent not funded by the employee.
(c) Benefits under disability benefit plans in the proportion funded by an employer.
(d) Any other worker’s compensation benefits, then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the worker’s compensation benefit, so that the aggregate remuneration from Sub-paragraphs (a) through (d) of this subsection shall not exceed sixty-six and two-thirds percent of his average weekly wage.

Thus, when an employee receives, in addition to workers’ compensation benefits, benefits under another (non-workers’ compensation) disability plan funded by the employer, the employer is entitled to an offset or credit for benefits received by the employee from the separate disability plan in the proportion to which those benefits are funded by the employer. Holden v. International Paper Company, 31,104, p. 4 (La.App. 2nd Cir.10/28/98), 720 So.2d 442, 445, writ denied, 98-2956 (La.1/29/99), 736 So.2d 834; Rochon v. Iberia Parish School Board, 95-1370, p. 12 (La.App. 3rd Cir.3/27/96), 673 So.2d 239, 246.

Ms. Hebert argues on appeal that the School Board was responsible for properly coordinating her benefits and cannot now claim, to her detriment, a credit for its alleged overpayment. In support of her argument, Ms. Hebert relies on Daigle v. Employers National Insurance Company, 94-126 (La.App. 3rd Cir.12/1/99), 747 So.2d 696. In Daigle, an employer failed to properly coordinate the termination of its offset with the activation of the Social Security Administration’s offset. As such, for a period of time, the claimant suffered a double offset of benefits. Daigle, 94-126 at pp. 4-5, 747 So.2d at 699. The court relied on the principle that a disabled employee not be “forced to endure a period of time when he is not receiving his due portion of benefits simply because the Social Security Administration and the employer or its insurer failed to properly coordinate the termination and activation of their respective offsets.” Daigle, 94-126 at p. 4, 747 So.2d at 699.

|7In the instant case, after the School Board stopped making compensation payments, Ms. Hebert notified the Teachers’ Retirement System, which promptly adjusted her disability benefit from the time the School Board stopped making payments in February 2001. Therefore, Ms. Hebert, unlike the claimant in Daigle, was never subject to a double offset. Rather, Ms. Hebert’s disability retirement benefits were increased and the School Board sought to recoup a credit to which it was entitled under La. R.S. 23:1225(C)(l)(c).

Further, Ms. Hebert argues that there was no evidence submitted at the hearing that the School Board was entitled to a credit. However, at trial, the School Board submitted records from the Teachers’ Retirement System, showing the amount, percentage, and duration of its contributions. Therefore, based on the law and our thorough review of the record, we cannot find that the workers’ compensation judge erred in finding that the School Board was entitled- to an offset or credit against its compensation liability.

Permanent and Total Disability

In her disputed claim form, Ms. Hebert asserted that she remains permanently and totally disabled. In its answer, however, the School Board asserted for the first time that Ms. Hebert was no longer permanently and totally disabled and was no longer entitled to SEB. In reviewing the workers’ compensation judge’s decision in this regard, we first address the issue of permanent total disability.

According to the applicable version of La. R.S. 23:1221(2)(c), “whenever the employee is not engaged in any employment or self-employment ... compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment.”

Is At trial, Ms. Hebert presented several letters from her physician, Dr. Stefan Pri-bil, in support of her contention that she remains permanently and totally disabled. These letters, dated December 12, 2002 and March 7, 2003, dispute the findings of the functional capacity evaluation (FCE) performed at the request of the School Board and provide that as far as Dr. Pribil is concerned, Ms. Hebert is permanently and totally disabled.

Additionally, Ms. Hebert submitted a vocational survey performed by Heyward Johnson. In this survey, Mr. Johnson indicated that he thought Ms. Hebert was not a good candidate to return to work based on Ms. Hebert’s multiple complaints. He also stated repeatedly that based on the minimal information that he had, there was no way for him to determine Ms. Hebert’s ability to return to work. However, in concluding his report, he opined at that time, based on the information he had, Ms. Hebert was “still disabled to return to work.”

The School Board introduced Ms. Hebert’s medical records from Dr. Pribil, testimony and a report from Dr. Christopher - Cenac, an orthopedic surgeon who performed the independent medical examination (IME), and a FCE report from Deo-ma J. Adams, a physical therapist. The testimony and report from Dr. Cenac reveal that he evaluated Ms. Hebert on February 12, 2003, approximately one month prior to the hearing, at which time he reviewed Ms. Hebert’s prior medical records and performed an examination. Dr. Cenac agreed with Dr. Pribil that Ms. Hebert had reached maximum medical improvement and further indicated that any treatment at this point would be symptomatic and non-work related because of Ms. Hebert’s age, weight, and degenerative pathology. Although he deferred to the FCE for a more definitive determination regarding Ms. Hebert’s ability to engage in employment, Dr. Cenac stated that even without the FCE findings, he felt that Ms. Hebert was capable of occasional light and sedentary work and that she was able to do such work with intermittent periods of rest over an eight-hour day. The |9FCE performed the day after Dr. Cenac’s evaluation determined that Ms. Hebert was able to work at a sedentary physical demand level for an eight-hour day, with occasional sitting and standing.

A review of Ms. Hebert’s medical records indicates that during her treatment, which ended in May of 2000, her then treating physicians determined that she was permanently and totally disabled at that time. However, Ms. Hebert did not present any evidence that she was reevaluated by any of these physicians or that based on her current medical condition, she remains permanently and totally disabled. Ms. Hebert did submit several letters from Dr. Pribil indicating that she was permanently and totally disabled. Dr. Pribil, however, had not seen or treated Ms. Hebert since May of 2000, and he did not articulate any basis in these letters for his determination.

Although Ms. Hebert argues on appeal that her treating physicians indicated that she would never be able to return to work, from our review of the record, we find that the majority of the time, these opinions were qualified by “at this time” or refer to Ms. Hebert being disabled “from what she was doing.” In 1996, Dr. Donald Judice, her surgeon and then treating physician, did articulate that Ms. Hebert would be disabled for the foreseeable future, but based on the length of time since this opinion, the fact that Ms. Hebert had not been re-evaluated by any of her physicians since May 2000, and the reports of Dr, Cenac and Mr. Adams, we do not find that the workers’ compensation judge erred in determining that Ms. Hebert failed to prove by clear and convincing evidence that she is permanently and totally disabled.

Supplemental Earnings Benefits

An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety-percent or more of his average pre-injury wages. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving |inby a preponderance of the evidence that-the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, 96-2840 at p. 8, 696 So.2d at 556. This analysis is necessarily a facts and circumstances one in which the court is to be mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Banks, 96-2840 at pp. 8-9, 696 So.2d at 556.

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEB or to establish the employee’s earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. Banks, 96-2840 át p. 9, 696 So.2d at 556. The employer may discharge its burden of proving job availability by establishing, at a minimum, the following:

(1) the existence of a suitable job within the claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee 'with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for. that particular job at the time that the claimant received notification of the job’s existence.

Further, “suitable job” has been defined not only as one the claimant can physically perform, but also one which falls within the limits of claimant’s age, experience, and education. Banks, 96-2840 at pp. 10-11, 696 So.2d at 557.

Finally, if the employer is successful in sustaining its burden, the burden shifts back to the claimant to show by clear and convincing evidence, unaided by any pre-" sumption of disability, that he is unable to perform the employment offered solely as a consequence of substantial pain. ■ La. R.S. 23:1221(3)(c)(ii).

InFrom our review of the OWC’s judgment, it is apparent that the workers’ compensation judge applied an incorrect and heightened burden of proof to Ms. Hebert’s claim for SEB. Therefore, our review. of this issue will-be de novo. See Oubre v. Jacobs Engineering Group, 98-1129, pp. 2-3, (La.App. 1st Cir.5/14/99), 739 So.2d 235, 237, writs denied, 99-1515 (La.9/17/99), 747 So.2d 1108, and 99-2317 (La.9/17/99), 747 So.2d 569.

In the instant case, Ms. Hebert relied on letters from Dr. Pribil, her medical history dating back to the onset of her injury, and Mr. Johnson’s vocational survey to establish that she is unable to earn ninety percent of her pre-injury wage. The contents of Ms. Hebert’s medical history, Mr. Johnson’s vocational survey, and several letters from Dr. Pribil have been previously outlined. However, the December 12, 2002 letter from Dr. Pribil additionally indicated that he was revoking his prior approval of several sedentary positions located by Carla Seyler, the vocational counselor consulted by the School Board. Dr. Pribil offered no explanation for his cqnclusion and made this statement without the benefit of a reevaluation of Ms. Hebert.

In light of this evidence, and our findings as previously outlined, this court is unable to determine that Ms. Hebert established a prima facie case that she is unable to earn ninety percent of her pre-injury wage. However, assuming for the sake of argument that Ms. Hebert met her burden, the record is replete with evidence from the School Board, which we find preponderates in its favor.

As stated previously, Dr. Cenac and the FCE report prepared by Mr. Adams suggest that Ms. Hebert is not permanently and totally disabled and is capable of performing sedentary or light duty work over the course of an eight hour day. This .is the only medical evidence evaluating Ms. Hebert’s current medical condition and capabilities since May of 2000 when she was last seen by Dr. Pribil.

| ^Additionally, the School Board presented the ■ vocational reports from Ms. Seyler. These reports state that Ms. Hebert obtained her GED diploma and that she tested at the college level. Based on the results of her evaluation, Ms. Seyler performed a labor market survey, finding Ms. Hebert was employable in positions earning $5.15/hour to approximately $1,200/month, -and located several jobs within Ms. Hebert’s restrictions, capabilities, and geographic region. Ms. Seyler forwarded information regarding these positions to both Ms. Hebert and Dr. Pribil. On August 29, 2002, Dr. Pribil approved several of the positions. Thereafter, Ms. Seyler contacted Ms. Hebert to inform her of Dr. Pribil’s decision and to give her the names of the specific employers so she could apply for the positions. However, Ms. Seyler indicated that she never heard back from Ms. Hebert and that when she followed up with the employers, Ms. Seyler was either unable to verify that Ms. Hebert applied or was definitively told that Ms. Hebert in fact never applied for the position. Ms. Seyler continued to offer her services; however, she did not believe Ms. Hebert was interested in employment because she lacked a desire to work.

Therefore, based on the evidence as outlined above and our thorough review of the record, we find that Ms. Hebert failed to prove that she is entitled to SEB.

CONCLUSION

For the foregoing reasons, the judgment of the OWC is affirmed. All costs of this appeal are to be borne by the appellant, Emmalene Hebert.

AFFIRMED.

PARRO, J., concurs.

      . According to the record, Ms. Hebert was receiving workers’ compensation disability payments at the end of every month. As such, Ms. Hebert’s last payment was for February, which she received February 28, 2001.


source: Caselaw Access Project

author: MCDONALD, J.

license: Public Domain

text:
    James BERGERON v. CAJUN CUTTERS, INC., The Gray Insurance Company and Ace Transportation.
    No. 2003 CA 1370.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Lawrence D. Ward, Jr., Houma, Counsel for Plaintiff/Appellee James Bergeron.
    Joseph H. Schilleci, Metairie, Counsel for Defendant/Appellant Cajun Cutters, Inc. and The Gray Insurance Company.
    Philip J. Borne, New Orleans, Counsel for Defendant/Appellee Ace Transportation.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   MCDONALD, J.

Employer liable for workers’ compensation benefit payments and its insurer appeal a judgment granting summary judgment based on a finding that the mover was not a joint employer of the injured worker. For the following reasons, we affirm.

FACTS

James Bergeron (Bergeron) was hired by Tommy Ashton (Ashton), owner of Cajun Cutters, Inc. (a general oil field service company) in April 1998, as a driver. The vehicles used by Cajun Cutters were owned by Thomaston, Inc. (a subchapter S/chapter C corporation owned by Ashton and his wife) and leased to Cajun Cutters. One large truck owned by Thomaston was leased to Ace Transportation Company (Ace). Bergeron, who had a commercial drivers license and experience driving trucks, was assigned by Ashton to be the driver of that truck when it was used by Ace for “hot-shot” runs. Ace had contracts with numerous individuals in the local area to provide trucks and drivers when needed by Ace, whose business was transporting equipment or other goods.

Immediately upon hiring Bergeron, Ash-ton sent him to meet with Robert Mayet, who was the terminal manager for Ace. Mayet required Bergeron to fill out another employment application, checked his Department of Transportation history and sent him to have a physical exam. By early May 1998, Bergeron was an employee of Ace as well as. of Cajun Cutters. Thereafter, when Bergeron drove the Tho-maston truck on a run for Ace, he was paid 25% of the total amount invoiced for that run directly by Ace, who also paid 50% of the cost invoiced to Thomaston, Inc.

|?iTo guarantee Bergeron consistent full-time employment, Ashton had Bergeron assigned as a helper at Cajun Cutters when there were no runs to be driven for Ace. In November 1998, Bergeron was helping another Cajun Cutters employee change out oxygen bottles in the welding rack, when the forklift operator caused the rack to fall over, landing on top of Berger-on. Cajun Cutters’ workers’ compensation carrier paid medical • benefits and weekly compensation benefits. In September 2001, the weekly compensation benefits were terminated based on a finding by the workers compensation judge that Berger-on was earning “90% or- more” of his pre-.injury average weekly wage.

Bergeron filed suit alleging that the proper average weekly wage should have included wages earned from both Ace and Cajun Cutters and that the termination of benefits was improper. Cajun Cutters then filed a third party demand against Ace for contribution, alleging that Ace was the joint employer- of Bergeron. Ace subsequently filed a motion for summary judgment, asserting -that there were no material facts in dispute and that at the time of the accident, Bergeron was working only for Cajun Cutters and therefore, Ace was not a joint employer. Judgment was rendered by the workers’ compensation judge, dismissing the third party demand against Ace with prejudice. Cajun Cutters and its insurer, Gray Insurance Company have timely filed this devolutive appeal.

LAW AND ANALYSIS

The facts in this case are undisputed and the sole issue before us is whether, under these facts, Ace and Cajun Cutters were joint employers of Bergeron in accordance with the Workers’ Compensation law, specifically, La. R.S. 23:1031 B, which provides in pertinent part:

LB. In case any employee for whose injury or death payments are due is, at the time of the injury, employed and paid jointly by two or more employers subject to the provisions of this Chapter, such employers shall contribute to such payments in proportion to their several wage, liabilities to the employee; but nothing in this Section shall prevent any arrangement between the employers for different distribution, as between themselves, of the ultimate burden of such payments.

Appellants correctly note that a decision in this case will depend on jurisprudential interpretation of this statute. However, interpretation of statutes does not begin with case law, but with the stat.ute at issue.

When interpreting a law (ordinance), the court should give it the meaning the lawmaker intended... .The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a consideration should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker enacting it.

Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984).

It is well established by statute and jurisprudence that in order for a worker to be entitled to receive workers’ compensation benefits, the injury must have “arisen out of the employment” in which he was engaged at the time of the accident. Therefore, reading La. R.S. 23:1031 B in conjunction with other, workers’ compensation law, we find that in order for an employer to be jointly liable for compensation benefits for injuries to an employee, the injury must have arisen while performing duties for which he was paid by that employer. This finding does not conflict with jurisprudence from other circuits on this issue. Further, it does not require interpretation or analysis of juris-prudentially created issues, i.e., “amounVdegree of control” or “common enterprise.” The statute simply requires that if, at the time of the injury establishing an entitlement to benefits, an employee is in the course | sand scope of employment for which he is paid by two or more employers, then all the employers are jointly liable for the compensation payments in proportion to their several wage liabilities to the employee.

In this case, it is undisputed that Ber-geron was engaged in work for which he was paid only by Cajun Cutters and the injury arose out of that employment. The fact that he was also an employee of Ace is not relevant because the injury did not arise in the course and scope of the work for which he was paid by Ace. Therefore, the judgment of the workers’ compensation judge dismissing the third party demand against Ace Transportation, Inc. is legally correct and is affirmed. Costs of this appeal are assessed to Cajun Cutters, Inc. and the Gray Insurance Company.

AFFIRMED.

KUHN, J., concurs.

      . The truck was kept at the Cajun Cutters work yard and was available for use by Cajun Cutters in its business.


author: IsGAIDRY, J.

text:
    Barry SMITH, Addie Alexander and Keith Smith v. Nathaniel WILLIAMS, Jr., Deshauna Johnson and U.S. Agencies Casualty Insurance Company.
    No. 2003 CA 0433.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Robert J. Carter, Greensburg, Counsel for Plaintiffs-Appellees Barry Smith, Addie Alexander, and Keith Smith.
    Thomas E. Gibbs, Baton Rouge, Counsel for Defendant-Appellant U.S. Agencies Casualty Insurance Company.
    Before: FOIL, FITZSIMMONS, GUIDRY, PETTIGREW, and GAIDRY, JJ.
   IsGAIDRY, J.

This appeal involves the validity of a named person exclusion in an automobile insurance policy. Prior to trial on the merits, the trial court granted the plaintiffs’ motion for partial summary judgment on the coverage issue, finding the exclusion invalid. Following trial, the trial court rendered judgment in favor of the plaintiffs, reaffirming its earlier ruling and awarding them damages for personal injury. From that final judgment, the defendant insurer appeals only the partial summary judgment and the interlocutory judgment denying its motion for partial summary judgment on the same issue. For the following reasons, we affirm. ■

FACTS AND PROCEDURAL BACKGROUND

US.Agencies Casualty Insurance Company (U.S. Agencies) issued a policy of automobile liability insurance to DeShauna Johnson on March 15, 2000, providing coverage for her as owner of a 1992 Geo Prizm automobile. On the same date, Ms. Johnson signed a named person exclusion endorsement, excluding coverage for Nathaniel Williams, a resident of her household listed in the policy application, and a form rejecting uninsured motorists (UM) coverage. The policy period was from March 15, 2000, through March 16, 2001.

On April 24, 2000, Ms. Johnson signed an application for the issuance of an endorsement adding a 1972 Chevrolet Impala automobile to the policy. Notably, Ms. Johnson executed a new UM rejection form on that date, but did not execute, a new named person exclusion.

On May 19, 2000, Mr. Williams was operating the Chevrolet Impala when it was involved in a collision with a van owned by Barry Smith and | ^operated by Addie Alexander. Keith Smith was a passenger in the van. This action for damages was filed by the van owner and occupants (the plaintiffs) against Mr. Williams, Ms. Johnson, and U.S. Agencies.

US Agencies filed a motion for summary judgment, seeking the dismissal of the plaintiffs’ claims against it on the ground that coverage was excluded for Mr. Williams under its policy. The plaintiffs countered with their own motion for partial summary judgment on the same issue, contending the named person exclusion was invalid after the addition of the Chevrolet Impala to the policy. The trial court granted the plaintiffs’ motion and denied the motion of U.S. Agencies.

The case proceeded to trial on September 20, 2002, all issues except coverage and quantum of damages being stipulated. On November 20, 2002, the trial court signed its judgment reaffirming its finding of coverage based upon the invalidity of the exclusion and awarding the plaintiffs damages. US Agencies now. appeals, assigning as error the trial court’s judgment determination that the named person exclusion is invalid as a matter of law.

STANDARD OF REVIEW

The sole issue presented for our consideration is whether the named person exclusion signed by Ms. Johnson on March 15, 2000 was still valid after the addition of a new covered automobile to the policy on April 24, 2000. Because the trial court decided this issue by summary judgment, our review must be de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue |4as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Interpretation of an insurance contract is usually a question of law that can be properly resolved in the framework of a motion for summary judgment. Madden v. Bourgeois, 95-2354, p. 3 (La.App. 1st Cir.6/28/96), 676 So.2d 790, 792.

DISCUSSION

On the date the policy at issue was delivered and on the date of the accident, La. R.S. 32:900(L) provided:

Notwithstanding the provisions of Paragraph B(2) of this Section, an insurer and an insured may by written agreement exclude from coverage any named person who is a resident of the same household as the named insured.

Under the unequivocal holding of American Deposit Ins. Co. v. Myles, 00-2457 (La.4/25/01), 783 So.2d 1282, the addition of a new vehicle to be covered created a new policy for purposes of a named person exclusion. The named insured in that case executed two named driver exclusions in 1993, excluding coverage for two children for a 1991 Toyota Camry automobile. The exclusion stated that it was applicable to “all rewrite or renewal policies.” At some point after those exclusions were executed, the named insured added a 1994 Lincoln Town Car to the policy. An accident oc-eurred in 1998 when a child named in one of the exclusions, Windy Myles, was operating the original listed vehicle. The following language from that opinion is pertinent here:

When an insured adds a vehicle to the coverage afforded by an existing policy, that action is significant on many levels. The exposure of the insurance company substantially increases from insuring one vehicle to insuring two. By increasing the coverage in such manner, a significant raise in premiums is imposed .... When the vehicle is added, the insured and an agent of the insurer execute a new agreement that operates to create a new coverage over a new automobile.
* * *
I ffTJhe addition of a car in this case after the exclusion was signed in 1993 served to create a new policy requiring a new named driver exclusion if the parties desired that no coverage would attach when Windy Myles operated either the 1991 Toyota Camry or the 1994 Lincoln Town Car. Therefore, the policy in effect at the time of the accident was not a renewal of the 1993 policy. (Our emphasis.)

American Deposit, 00-2457 at pp. 8, 11, 783 So.2d at 1287, 1289.

We reject the argument that the original written named person exclusion of Mr. Williams was effective as to the new policy created under the law applicable to these facts. Contrary to the argument advanced by U.S. Agencies, the factual situation in American Deposit cannot be distinguished from that of the present case by virtue of the limiting language of the exclusion in American Deposit. The supreme court’s rationale in American Deposit was that the addition of the new vehicle to the policy is what created a new policy and the need for execution of a new exclusion, and that rationale did not hinge upon whether the exclusion expressly applied to a “new” policy as opposed to a “rewrite” or “renewal” of an existing policy. In other words, its holding was that under the law then in effect, the addition of a new vehicle under the coverage created a new policy, and a new policy required a new named person exclusion. Whether the exclusion purported to apply to only “rewrite” or “renewal” policies or to all future policies involving the original listed automobile was irrelevant to the holding that a new policy was created by the addition of a new listed vehicle.

Further, we find neither the 2001 nor the 2002 amendments to La. R.S. 32:900(L) apply retroactively to change the result in the present case. Louisiana Revised Statutes 1:2 states the general rule that “[n]o Section of | fithe Revised Statutes is retroactive unless it is expressly so stated.” The 2001 amendment to La. R.S. 32:900(L) created La. R.S. 32:900(L)(1) and (2), and was expressly intended to overrule the case of Williams v. U.S. Agencies Cas. Ins. Co., Inc., 00-1693 (La.2/21/01), 779 So.2d 729, which held that the named insured could not be excluded under a named person exclusion. But the act was not designated as retroactive, nor was it expressly designated as interpretive or curative. 2001 La. Acts, No. 368, § 1. Its effective date was August 15, 2001, which was after the date of the accident in this case. However, even if it could be construed as retroactive, its language does not affect the pertinent holding of American Deposit as to the creation of a “new” policy, as opposed to a “renewal, reinstatement, substitute or amended policy.” See La. R.S. 32:900(L)(2) (2001).

The 2002 amendment to La. R.S. 32:900(L)(2) made a substantive change in the law, providing that a new policy is not created by the addition of a new vehicle and that a new agreement to exclude a named person is not necessary in that event. The amendment, however, was expressly designated as “prospective” and “not retroactive.” 2002 La. Acts, 1st Ex. Sess., No. 81, § 2. This is a compelling indication of the necessity of execution of a new named person exclusion in this case, which arose in 2000, in order for coverage for Mr. Williams to have been excluded.

Coverage of a permissive driver as an omnibus insured under an automobile liability policy is mandatory under La. R.S. 32:900(B)(2), with the limited exception provided by La. R.S. 32:900(L). Joseph v. Dickerson, 99-1046, 99-1188, p. 9 (La.1/19/00), 754 So.2d 912, 917. For a named person to be excluded under that exception, it must be in the form of a “written agreement.” La. R.S. 32:900(L). To that extent, it is analogous to the signed rejection or selection of lower limits required under La. R.S. |722:1406(D)(1)(a) (now La. R.S. 22:680(l)(a)) to modify the mandatory UM coverage otherwise in the same limits as liability coverage in an automobile policy. Accordingly, it is only logical that the rule requiring the execution of a new UM coverage exclusion or selection of lower limits upon the addition of a'vehicle should also be applied in this analogous situation. See Dempsey v. Automotive Casualty Insurance, 95-2108, p. 10 (La.App. 1st Cir.6/28/96), 680 So.2d 675, 680-81; Smith v. Foret, 98-1142, pp. 7-8 (La.App. 1st Cir.5/14/99), 734 So.2d 922, 927. This is precisely what the supreme court held in American Deposit, and as the present cause of action arose prior to the effective date of the 2002 amendment to La. R.S. 32:900(L), the holding in American Deposit clearly controls the result here.

DECREE

The trial court’s judgment is affirmed. All costs of this appeal are assessed to the defendant-appellant, U.S. Agencies Casualty Insurance Company.

AFFIRMED.

GUIDRY, J., concurs.

FOIL, J., dissents.

      . An erroneous interlocutory judgment denying a motion for summary judgment may be corrected by review following final judgment. Devers v. Southern University, 97-0259, 97-0260, pp. 15-16 (La.App. 1st Cir.4/8/98), 712 So.2d 199, 209. And since the partial summary judgment in favor of the plaintiffs is being appealed following "final judgment on the trial on the merits, that judgment need not be designated as final or "certified” under La. C.C.P. art. 1915(B) for purposes of appeal.

      . We agree with U.S. Agencies that the issue before us is purely an issue of law, rather than fact.

      . The identity or similarity in policy numbers before and after the addition of a new covered vehicle is irrelevant to the rule that a new policy is created by adding the new vehicle. The supreme court in American Deposit expressly rejected as “unpersuasive” the argument that the similarity in policy numbers before and after the addition of the new vehicle supported the finding that the policy was a “renewal.” American Deposit, 00-2457 at pp. 9-10 n. 5, 783 So.2d at 1288 n. 5. We similarly reject U.S. Agencies' attempt to distinguish its policy here on similar grounds.

      . Even though that rule of law was legislatively overruled by Acts 1999, No. 732, § 1, amending La. R.S. 22:1406(D)(l)(a)(ii) (now La. R.S. 22:680(l)(a)(ii)), the supreme court in American Deposit expressly found that its rationale retained validity for purposes of named person exclusions. American Deposit, 00-2457 at pp. 10-11, 783 So.2d at 1289. And as the present case arose prior to the effective date of the 2002 amendment to La. R.S. 32:900(L), that rationale is equally applicable here.


author: ^MCDONALD, J.

text:
    Mary Linda PARFAIT v. CARO PRODUCE AND INSTITUTIONAL FOODS, INC.
    No. 2003 CA 1467.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.
    Stephen S. Stipelcovich, Houma, Counsel for Plaintiff/Appellant Mary Linda Parfait.
    Kimberly M.A. Neiting, Thomas J. Smith, New Orleans, Counsel for Defendant/Appellee Caro Produce and Institutional Foods, Inc.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   ^MCDONALD, J.

This is an appeal from a ruling of the Office of Workers’ Compensation (OWC). Mary Parfait, the claimant, was working as a vegetable trimmer at Caro Produce & Institutional Foods, Inc. (Caro Produce) when she stepped down from a bench, fell on a garden hose and landed on her knees. She complained of pain in her right knee, and thereafter received workers’ compensation benefits consisting of indemnity payments and medical treatment, including arthroscopic surgery on the right knee. After Caro Produce refused to pay for a total right knee replacement surgery, Ms. Parfait filed a disputed claim for benefits. The OWC concluded Ms. Parfait was not entitled to additional benefits and dismissed her claim. We affirm the OWC’s ruling.

At trial the parties stipulated that Ms. Parfait had an accident in the course and scope of her employment with Caro Produce on March 23, 2000. The only issue before the workers’ compensation judge was whether Ms. Parfait was entitled to a total knee replacement surgery as a result of the March 23, 2000 accident.

After trial, the workers’ compensation judge ruled in favor of Caro Produce, finding that “claimant did not prove by a preponderance of the evidence the requested surgical procedure, a total replacement of the right knee, is necessary for the treatment of any condition caused by the work injury.”

Ms. Parfait contends on appeal that the workers’ compensation judge erred in finding that her need for a total knee replacement surgery was not due to the aggravation or acceleration of her degenerative arthritis caused by her work accident. Caro Produce contends that ample evidence in the record shows that Ms. Parfait’s medical condition, consisting of extensive, | ^degenerative arthritis of the right knee, pre-existed the accident and any alleged aggravation was temporary and had ceased.

After a thorough review, we find that the record does not demonstrate that the trier of fact is clearly wrong, and we affirm. This opinion is issued in compliance with the Uniform Rule — Courts of Appeal, Rule 2-16.1.B. Costs are assessed against Ms. Parfait.

AFFIRMED.


author: I .DOWNING, J. I iMcCLENDON J.,

text:
    Winafred SCARBROUGH, Individually and as Natural and Legal Tutrix of the Estate of Her Minor Son, Eric Scarbrough, Leneka Scarbrough and Jarmonica Scarbrough v. O.K. GUARD DOGS, Oree K. Knighten, Jr., Government Employees Insurance Company and ABC Insurance Company. Dwayne Forkner, Individually and as Father of Eric Scarbrough v. O.K. Guard Dogs, Oree K. Knighten, Jr. and Government Employees Insurance Company.
    Nos. 2003 CA 1243, 2003 CA 1244.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Aidan C. Reynolds, Christopher L. Whittington, Baton Rouge, Counsel for Plaintiffs/Appellees Winafred Scarbrough, et al.
    John F. McKay, Baton Rouge, Counsel for Plaintiffs/Appellees Dwayne Forkner, et ux.
    Joel Porter, Baton Rouge, Counsel for Intervenor/Appellee Joel Porter.
    Randy B. Ligh, Gwendolyn K. Brown, Assistant Parish Attorney, Baton Rouge, Counsel for DefendanVAppellant City of Baton Rouge, et al.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I .DOWNING, J.

This appeal addresses the liability of the City of Baton Rouge/Parish of East Baton Rouge (City/Parish) for an accident resulting in the death of a twelve-year-old child on a narrow street it owned and maintained. The jury, in a bifurcated trial, found the City/Parish negligent in causing the child’s wrongful death. It found that the City/Parish street was defective, that it posed an unreasonable risk of harm, and that the condition of the street was a cause-in-fact of the child’s death. The court and jury both allocated 15% fault to the City/Parish. Judgment was entered accordingly, awarding wrongful death and survival damages. A second judgment was subsequently entered allocating 50% fault to the City/Parish. The City/Parish appealed. Plaintiff, Winafred Scarbrough, answered the appeal seeking, among other things, higher survival damages on behalf of her deceased son, Eric Scarbrough. For the following reasons, we vacate the second judgment as an absolute nullity and reinstate the first judgment. Concluding that no error exists in the reinstated judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 20,1993, a truck’s mirror struck Eric Scarbrough, a twelve-year-old boy, while he was walking on or near Mohican Street in Baton Rouge, Louisiana. Eric ultimately died as a result of the accident. The street was eighteen feet, three inches (18'3") wide.

Plaintiffs, Winafred Scarbrough (on her own behalf and on behalf of Eric’s sister, Jarmonica) and Dwayne Forkner (Eric’s father) proceeded to trial against the City/Parish alone. All other defendants had previously settled with the plaintiffs. After completion of the trial, the jury found in favor of Winafred Scarbrough and awarded damages totaling one million dollars ($1,000,000.00), including survival damages for Eric Scarbrough in the amount of fifty thousand | .dollars ($50,-000.00). The jury apportioned 15% fault to the City/Parish and 85% fault to the truck driver, Oree Knighten.

When the parties could not agree to the terms of the judgment, Ms. Scarbrough filed a motion to enter judgment. Before the motion was heard, however, the trial court signed a judgment in accordance with the jury verdict, which judgment also awarded damages to Jarmonica Scarb-rough in the amount of thirty-five thousand dollars ($35,000.00), apportioning 15% fault to the City/Parish. The court made no specific ruling on the motion to enter judgment.

Ms. Scarbrough then filed a motion for judgment notwithstanding the verdict (JNOV). Subsequent to this motion being heard, but before the court’s ruling, the court signed another judgment identical to the previous one except that it apportioned 50% fault to the City/Parish on all claims rather than 15%. After this, the trial court entered judgment denying the JNOV. The trial court then signed an order granting the City/Parish a suspensive appeal.

On appeal, the City/Parish raises seven assignments of error:

1. that the trial court erred in signing the second judgment;
2. that the trial court erred in apportioning 50% fault to it regarding Wi-nafred Scarbrough when the jury apportioned only 15%;
3. that the trial court erred in apportioning 50% fault to it regarding Jarmonica Scarbrough’s damages when the jury apportioned only 15%;
4. that the trial court erred in awarding thirty-five thousand dollars ($35,000.00) in damages to Jarmoni-ca Scarbrough when the jurisdictional limit was twenty thousand dollars ($20,000.00);
5. that the plaintiffs failed to prove that any acts or omissions were a cause-in-fact of their damages;
6. that the factfinders erred in allocating any fault to the City/Parish or in failing to apportion a higher degree of fault to the truck driver or to the child who was hit, thus reducing the City/Parish’s degree of fault;
7.that the jury erred in awarding excessive damages to Winafred Scarb-rough.

Winafred Scarbrough answered the appeal asserting three assignments of error:

1. that the first judgment signed by the trial court contained errors in calculation and should be corrected by this court;
|42. that the jury erred in awarding grossly inadequate survival damages for Eric Scarbrough;
3. that the trial court erred in denying plaintiffs’ motion for JNOV to correct grossly inadequate survival damages for Eric Scarbrough.

DISCUSSION

ISSUES RAISED ON APPEAL

Validity of Second Judgment

We conclude that the second judgment signed by the trial court is an absolute nullity, being an impermissible amendment of a final judgment. In its first assignment of error, the City/Parish challenges the validity of the second judgment signed by the trial court. Their second and third assignments of error challenge the appor-tionments of fault contained in the second judgment. These assignments of error have merit.

The first judgment signed by the trial court was a final judgment. A final judgment may not be amended to effect a substantive change except on application for new trial, action for nullity, or timely appeal. See Hebert v. Blue’s Auto and Truck Parts, 00-2154, pp. 3-4 (La.App. 1 Cir. 12/28/01), 804 So.2d 953, 955. See also Bourgeois v. Kost, 02-2785, p. 5 (La.5/20/03), 846 So.2d 692, 695. The Louisiana Supreme Court has also recognized a jurisprudential exception that, on its own motion and with the consent of the parties, the trial court may substantively amend a judgment. Hebert, 00-2154, p. 4, 804 So.2d at 955. None of these procedures were employed in this case, and the second judgment effects a substantive change in the City/Parish’s rights. The second judgment increases the City/Parish’s liability from 15% to 50%. Accordingly, the second judgment is an absolute nullity and is without legal effect. Hebert, 00-2154 at pp. 3-4, 804 So.2d at 955.

We observe there are certain circumstances where judgments can be amended ex parte. La. C.C.P. art. 1951, addressing amendment of judgment, |Bpermits an ex parte amendment of a final judgment for limited purposes: (1) to alter the phraseology of the judgment, but not the substance; or (2) to correct errors of calculation. Here, however, the modification by the trial court clearly exceeds the parameters described in La. C.C.P. art. 1951 and directly affects the City/Parish’s rights. Accordingly, we vacate the second judgment signed by the trial court on May 12, 2003, and reinstate the first judgment signed on March 27, 2003.

Jurisdictional Amount

The City/Parish next argues that Jarmo-nica’s damages should be limited to twenty thousand dollars ($20,000.00) rather than the thirty-five thousand dollars ($35,-000.00) awarded because it was denied a jury trial pursuant to La. C.C.P. art. 1732. At the time the present suit was filed, La. C.C.P. art. 1732 precluded a jury trial where the amount sought in a cause of action did not exceed twenty thousand dollars ($20,000.00). Nonetheless, on the stipulation of Ms. Scarbrough, on behalf of her daughter that the value of her claim did not exceed the current jurisdictional amount of fifty thousand dollars ($50,000), the trial court struck the jury and conducted a bench trial on Jarmonica’s claim.

We observe from the record that Ms. Scarbrough’s stipulation was that Jar-monica’s claim did not exceed fifty thousand dollars ($50,000.00). Mrs. Scarb-rough’s counsel made no specific reference to a “jurisdictional amount.” Further, the City/Parish did not object to striking the jury. When the City/Parish failed to contemporaneously object, it waived this objection and cannot argue this alleged error for the first time on appeal. See Bailey v. Bolton, 98-2026, p. 2 (La.App. 1 Cir. 9/10/98), 755 So.2d 254, 255. Under these circumstances, we conclude that no legal basis exists for reducing the award in favor of Jarmonica. This assignment of error is without merit.

| Cause in Fact/Degree of Fault

The City/Parish next argues in assignments of error 5 and 6 that the plaintiffs failed to prove that any acts of the City/Parish were proven to be a cause in fact of Eric Scarbrough’s injuries and death. Alternatively, the City/Parish argues that the jury erred in not apportioning any fault to Eric Scarbrough, in not apportioning a higher degree of fault to the truck driver, and in not reducing the City/Parish’s degree of fault accordingly. We disagree.

We review whether a defendant’s conduct was a cause in fact of a plaintiffs injuries under the manifest error standard. Perkins v. Entergy Corp., 00-1372, p. 3 (La.3/23/01), 782 So.2d 606, 609. Further, where multiple causes are present, courts generally employ the “substantial factor” test to determine whether a defendant’s conduct played any part in bringing about the plaintiffs harm. Roberts v. Benoit, 605 So.2d 1032, 1042 (La.1991). If a defendant’s conduct was a “substantial factor,” the cause-in-fact element is established. Id. “Stated differently, the inquiry is ‘[d]id the defendant contribute to the plaintiffs harm or is the defendant a cause of the plaintiffs harm?” ’ (Citation omitted.) Id. See also Hill v. Lundin & Associates, Inc., 260 La. 542, 547, 256 So.2d 620, 622 (1972).

In addition, a trier of fact’s determination of the allocation of fault is a factual finding that cannot be overturned in the absence of manifest error. Williams v. City of Baton Rouge, 02-0682, p. 12 (La.App. 1 Cir. 3/28/03), 844 So.2d 360, 371. Consequently, we determine whether the factfinder’s conclusion was a reasonable one, not whether the trial court was right or wrong. Williams, 02-0682 at pp. 12-13, 844 So.2d at 371.

Accordingly, we look at the conduct of the truck driver, Oree Knighten, the conduct of the City/Parish, and the conduct of the deceased, Eric Scarbrough, to determine whether the jury and the trial court erred in their determinations regarding cause in fact and allocation of fault.

17Conduct of Oree Knighten

The evidence in the record clearly supports the jury and trial court findings that Mr. Knighten’s conduct was a substantial factor, thus a cause in fact, of Eric Scarbrough’s injuries and death. From the record, the factfinders could reasonably have concluded that Mr. Knighten failed to maintain a proper lookout for a hazard that could have been avoided by use of ordinary care, that he failed to see what he should have seen, that he failed to give a proper warning by honking his -horn or otherwise, that he failed to exercise proper precautions, and that he failed to exercise ordinary care and prudence. Accordingly, the factfinders were not manifestly erroneous in finding that Mr. Knighten’s conduct was a cause in fact of Eric Scarbrough’s injuries and death.

Both the jury and trial court allocated 85% fault to Mr. Knighten in causing Eric Scarbrough’s injuries and death. After careful review of the record, we carinot conclude that this apportionment is manifestly erroneous.

Conduct of the City ¡Parish

The jury found that a cause in fact of Eric Scarbrough’s death was a defective condition in Mohican Street. The trial court apparently did also. The defect presented to the factfinders was that Mohican Street was too narrow at eighteen feet, three inches (18'3") wide for the safety of pedestrians. This existence of the defect was supported by the testimony of the plaintiffs’ expert in civil engineering safety and design, Mr. James Clary, who testified that Eric Scarbrough would not have been hit had the street been twenty feet wide. The City/Parish argues that the conduct of the truck driver and of Eric Scarbrough were the causes in fact of the accident due to their respective inattentiveness. However, we cannot conclude that the factfin-ders were manifestly erroneous in finding that the City/Parish’s governance over a narrow street was a cause in fact of Eric Scarbrough’s injuries and death and in apportioning some degree of fault.

|sEven so, within its cause-in-fact1 argument, the City/Parish further argues that the risk of harm to plaintiff was not within the scope of protection of any duty owed by the City/Parish. The City/Parish acknowledges “that it has a duty to keep its roadways safe and reasonable for persons exercising ordinary care and reasonable prudence.” It also acknowledges that it has a duty “to bring old roadways up to modern standards” where “a new construction or major reconstruction of the roadway has taken place.”

The City/Parish argues, however, that it had no duty to widen Mohican Street because the street was constructed according to standards applicable at the time of construction and because Mohican Street had not been reconstructed. It acknowledges the testimony of Mr. Clary, the plaintiffs’ expert, that Mohican Street had to have been reconstructed because of the soil cement base that would not have been used at the time of road construction. But it argues that the factfinders were manifestly erroneous in crediting this testimony because a document, a 1946 Baton Rouge city ordinance, discredited Mr. Clary’s premise by showing two permissible street base construction methods — soil cement or sand clay gravel.

In this regard, we observe that the existence of the ordinance does not directly contradict Mr. Clary’s statement. That the City/Parish could have employed a soil cement base in the 1940s does not mean that it ever did. Further, the City/Parish did not confront Mr. Clary with this document even though it had the ordinance prior to Mr. Clary’s testimony. Nor did the City/Parish offer any independent expert testimony to contradict Mr. Clary. The 1946 ordinance was admitted into evidence, and the factfinders attributed the weight they thought due. We, therefore, cannot conclude that the factfinders were manifestly erroneous in finding the road width to be a defective condition that was a cause in fact of Eric Scarbrough’s injuries; nor did they err in concluding under the narrow facts of this |9case that the risk of harm to Eric Scarbrough was within the scope of protection of the self-observed duty owed by the City/Parish.

Conduct of Eñe Scarbrough

The City/Parish next argues that the factfinders erred in failing to attribute any comparative fault to Eric Scarbrough, who was twelve years old at the time of his death. Specifically, it asserts that Eric Scarbrough violated La. R.S. 32:213, which requires pedestrians to yield the right of way to all vehicles on the roadway.

A child is not held to the same standard of care as that of an adult. Rather, “[t]he test is whether the particular child, considering his age, background, and inherent intelligence, indulged in gross disregard of his own safety in the face of a known risk, understood and perceived the danger.” Robertson v. Penn, 472 So.2d 927, 931-932 (La.App. 1 Cir.1985). Here, the factfinders considered Eric Scarb-rough’s age, his development, evidence of his proximity to the road and other relevant factors. They concluded that Eric Scarbrough did not contribute to his own injuries and death. These findings are supported by the record and are not manifestly erroneous.

Accordingly, the City/Parish’s assignments of error 5 and 6 regarding causation and degree of fault are without merit.

Excessive Damages

The City/Parish next argues that the jury abused its discretion in awarding excessive damages to Winafred Scarbrough for Eric Scarbrough’s wrongful death and for her mental anguish. We disagree and conclude the jury did not abuse its discretion in making the awards it did.

The trier of fact is given much discretion in the assessment of damages. La. C.C. art. 2324.1. On appellate review, damage awards will be disturbed only when there has been a clear abuse of that discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). The initial inquiry must always be directed at whether the trial court’s award for the particular injuries and their effects upon this hnparticular injured person is a clear abuse of the trier of fact’s much discretion. Emery v. Owens-Corporation, 00-2144, pp. 21-22 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 457, writ denied, 02-0635 (La.5/10/02), 815 So.2d 842; Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993) (citing Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976)), the court instructed that, “Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.” We cannot conclude that the jury abused its discretion in making its awards in light of the evidence of Winafred and Eric Scarbrough’s pain, suffering and distress. Accordingly, we cannot look at the prior awards as the City/Parish suggests. This assignment of error is without merit.

ISSUES RAISED IN ANSWER TO APPEAL

Contribution

In her first assignment of error raised on answer to appeal, Winafred Scarbrough asserts that the reinstated March 27, 2003 judgment was signed in error. Specifically, she asserts that the City/Parish should be held 50% at fault, rather than 15% at fault, as required by the comparative fault law in effect at the time of the accident. We disagree.

In 1993 at the time Eric Scarbrough died, La. C.C. art. 2324 B provided in pertinent part that “liability for damages caused by two or more persons shall be solidary only to the extent necessary for persons suffering injury, death, or loss to In recover fifty percent of his recoverable damages.” Accordingly, Winafred Scarb-rough argues that the City/Parish’s soli-dary liability should be set at 50%.

The City/Parish, however, argues that it is entitled to a credit for the percentages of proportionate fault attributable to the settled defendants, in this case a credit for 85% fault attributed to the truck driver who hit Eric Scarbrough.

In Taylor v. U.S. Fidelity & Guar. Ins. Co., 630 So.2d 237, 239 (La.1993), the Louisiana Supreme Court observed:

Although Articles 1803 and 1804 were enacted in 1985 ..., Louisiana courts have long recognized that when a plaintiff settles with and releases one of several joint tortfeasors, he thereby deprives the remaining obligors of the right to contribution against the released obligor.... And when the adoption of comparative fault introduced the concept of apportioning fault among joint tortfeasors who are solidary obli-gors, the rule emerged that a plaintiffs settlement with one solidary obligor reduces his recovery against the remaining obligors by the percentage of the proportionate fault of the released obli-gor. The amount received by the plaintiff in settlement is irrelevant to the calculation of the amount of the reduction. [FN9] Of course, the reduction applies only when the remaining defendants prove at trial that the released party was a joint tortfeasor and therefore solidarily liable. [Internal note and citations omitted; emphasis added.]
FN9. The federal decision relied on by the intermediate court in the present case allowed a dollar-for-dollar credit, reasoning that a maritime plaintiff should not recover more than the damages determined at trial. The different rule set out in La.Civ.Code arts. 1803-04 allows a credit against the amount of damages only for the proportionate amount that the released tortfeasor would have been cast in judgment after trial. Thus, under the Louisiana statutes the plaintiff who settles shrewdly for a large sum with a defendant ultimately found to bear a small percentage of fault reaps the benefit of his negotiations. But the converse is also true, and when the plaintiff accepts in settlement less than the proportionate amount ultimately attributed to the released defendant, he hears the loss and receives less than his total damages. In either event, the non-settling defendants are not liable for the percent of the total damages proportionate to the fault of the released tortfeasor.

See also Cavalier v. Cain’s Hydrostatic Testing, Inc., 94-1496, p. 8 (La.6/30/95), 657 So.2d 975, 981; Farbe v. Casualty Reciprocal Exchange, 00-0076, pp. 3-7 (La.7/6/00), 765 So.2d 994, 996-998; Dennis v. The Finish Line, Inc., 99-1413, 99-1414, pp. 40-43 (La.App. 1 Cir. 12/22/00), 781 So.2d 12, 43-45.

112Here, it is not disputed that the settling defendants were proven to be joint tortfeasors and solidarily liable. Thus, the City/Parish is entitled by law to reduce its liability to the plaintiffs by the percentage of the proportionate fault of the released obligors. See Cavalier, 94-1496 at p. 8, 657 So.2d at 981. The record indicates that the proportionate fault of the liable settling truck driver was set by the factfin-ders at 85%. The City/Parish’s liability was set at 15%. With credit for 85% proportionate fault of the settled defendants, 100% of the fault is accounted for and there is no liability remaining with which the City/Parish could be solidary.

The plaintiffs argue, nonetheless, that the City/Parish should be held 50% soli-darily liable because it did not file a third party claim against the settled defendants or otherwise specially plead its right to contribution. We have reviewed the cases offered by the plaintiffs and can find no support for this assertion. Rather, the law appears to be to the contrary. See Taylor, supra. See also Cavalier, 94-1496 at p. 8, 657 So.2d at 981. The City/Parish is entitled by law to reduce its liability to the plaintiffs by the percentage of the proportionate fault of the released obligors. Id. Were there any liability remaining from unapportioned fault or inability to pay a proportionate share, or from other reasons, we would hold the City/Parish soli-darily liable up to 50%. But here, all proportionate liability has been settled except for the City/Parish’s. Accordingly, the reinstated judgment is correct where it apportions 15% liability to the City/Parish.

This assignment of error is without merit.

Adequacy of Survival Damages/Failure to Grant JNOV

Winafred Scarbrough argues in her second assignment of error on answer to appeal that the jury awarded legally inadequate survival damages for Eric 113Scarbrough. In support of this assertion, she points out the gory nature of the accident, Eric Scarbrough’s suffering, the painful medical treatment he endured before he died, and his awareness of what was happening to him prior to dying eleven days later. Despite these considerations, we cannot conclude the jury abused its discretion in determining the proper amount to award for Eric Scarbrough’s survival action. As stated above, we will disturb a damage award only when there has been a clear abuse of the trier of fact’s much discretion. Theriot, 625 So.2d at 1340. The jury decided what weight to give to the evidence and apparently did not accept that Eric Scarbrough suffered as fully as Ms. Scarbrough asserts. While the survival damages seem to be on the low side, we find no abuse of discretion and will not substitute our judgment for that of the jury. This assignment of error is without merit.

In her third assignment of error, Ms. Scarbrough argues that the trial court erred in failing to grant her motion for JNOV to correct the allegedly inadequate survival damages for Eric Scarbrough. Since we have concluded that the jury did not abuse its discretion in making its award for survival damages, we conclude the trial court did not err in failing to grant a JNOV on this ground.. This assignment of error is without merit.

DECREE

For the foregoing reasons, we vacate the judgment of May 12, 2003. We reinstate the judgment of March 27, 2003, which we affirm. Costs are assessed to the plaintiffs.

MAY 12, 2003 JUDGMENT VACATED; MARCH 27, 2003 JUDGMENT REINSTATED AND AFFIRMED.

PETTIGREW, J., concurs without reasons.

McCLENDON, J., concurs in part and dissents in part with reasons.

I iMcCLENDON J.,

concurring in part and dissenting in part.

I respectfully dissent from that portion of the majority opinion affirming the jury’s award of $897,400 to Mrs. Scarbrough in general damages for the wrongful death of her son and for her mental anguish for seeing Eric at the scene of the accident. I consider the award to be greater than that which a reasonable trier of fact could assess under the facts of this case. In my opinion, the jury abused its discretion and the award should be reduced. See Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993)

In all other respects, I concur with the findings of the majority.

      . The petitions of Jarmonica Scarbrough and Dwayne Forkner were tried before the trial court simultaneously with the jury trial. While the judgment reflects that the trial court entered an award in Jarmonica’s favor "for reasons orally assigned,” we can find no such reasons in the record. The judgment is silent as to Mr. Forkner’s claim.

      . The City/Parish acknowledges that Ms. Scarbrough believed the jurisdictional amount to be fifty thousand dollars ($50,-000.00). The record indicates that counsel for the City/Parish also believed the jurisdictional amount to be fifty thousand dollars ($50,000.00).

      . She also asserts that the second judgment dated May 12, 2003, was a legal correction of an error in calculation from the prior judgment. We disagreed with this argument above, vacating the May 12, 2003 judgment and reinstating the March 27, 2003 judgment.

      . The plaintiffs first argue that the factfinders were manifestly erroneous in apportioning only 15% fault to the City/Parish, arguing that City/Parish fault should be much higher. As discussed above, however, we find no manifest error in the factfinders’ allocations of fault.

      . The plaintiffs argue that a Fourth Circuit case, Oubre v. Eslaih, 02-1386, 02-1387, 02-1388 (La.App. 4 Cir. 2/26/03), 840 So.2d 54, rev’d on other grounds, 03-1133 (La.2/6/04), 869 So.2d 71, supports their position. We observe, however, that this case fails to address the effect of settlement on the defendant, City of New Orleans’, contribution rights as discussed in Taylor and the other cases cited above. We also observe that the Oubre court failed to apportion fault to the State of Louisiana, which did not settle. Nor did it apportion fault in a specific percentage to another defendant who did settle. Therefore, no fault is apportioned from which the City’s contribution rights and credits could be calculated. Accordingly, we find Oubre to be unpersuasive.