author: hAMY, Judge.

text:
    Teddy CAMPBELL v. HIGMAN BARGE LINES, INC.
    No. 02-0937.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Writ Denied May 2, 2003.

      Clayton Davis, Lundy & Davis, L.L.P., Lake Charles, LA, for Defendant/Appellee, Higman Barge Lines, Inc.
    Gary J. Arsenault, Neblett, Beard & Arsenault, Alexandria, LA, for Plain-tiflyAppellant, Teddy Campbell.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   hAMY, Judge.

The plaintiff filed a maritime action following a work-related injury occurring aboard a vessel owned by the defendant. The defendant filed a motion for summary judgment, contending that the condition alleged to have caused the injury did not exist for a sufficient period of time for the imposition of liability under general maritime principles or the Jones Act. The trial court granted the motion for summary judgment. The plaintiff appeals. For the following reasons, we reverse and remand for further proceedings.

Factual and Procedural Background

On March 7, 1998, the plaintiff, Teddy Campbell, was employed on the M/V George H. Thomas, a barge owned by the defendant, Higman Barge Lines, Inc. The accident at issue in this maritime matter occurred when the defendant, a tanker-man, was instructed to change the oil in the barge engines. In completing this task, Mr. Campbell and a co-worker, Andrew Tucker, descended into the engine room, filled buckets with oil, and began to ascend the steps from the engine room. Mr. Campbell alleges that, during the period of time the two were inside the room, the weather turned to rain, dampening the floor at the top of the stairs. He contends that he slipped on the wet floor, injuring his back.

The instant matter was filed on February 20, 2001. Mr. Campbell alleged the above accident, seeking recovery “under the “SavingD to Suitors” clause, 28 U.S.C. § 1333, the Jones Act (46 U.S.CApp. § 688) and the general maritime law.” Mr. | ^Campbell sought recovery related to what he contended was a permanently disabling injury. He alleged that the M/V George H. Thomas was unseaworthy and that the defendant was negligent in that hatches above the engine room were left open, exposing the stairs and floor to the elements and, in this case, causing them to be left in a wet condition. He also contends that the employer was negligent in failing to adopt a safer method of transferring oil than requiring employees to carry buckets of oil up the stairway.

|3The defendant filed a motion for summary judgment, asserting that Mr. Campbell would be unable to establish that it was negligent or that the vessel was un-seaworthy. It contended that the wet condition alleged to be the cause of the accident existed only a few minutes prior to Mr. Campbell’s fall, and that the employer cannot be responsible for correcting the condition given its short duration. Additionally, the defendant asserted that Mr. Campbell had reached maximum medical cure.

The trial court found in favor of the employer. The plaintiff appeals, arguing that genuine issues of material fact exist regarding unseaworthiness and Jones Act negligence. It also asserts genuine issues of fact remain regarding the maintenance and cure issue.

Discussion

La.Code Civ.P. art. 966 provides for summary judgment as follows:

A. (1)' The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he Rhas prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
B. The motion for summary judgment and supporting affidavits shall be served at least ten days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least four days prior to the date of the hearing unless there are local rules of court to the contrary. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C.(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

On review, summary judgments are considered de novo under the same criteria used by the trial court. Ross v. Conoco, 02-0299 (La.10/15/02); 828 So.2d 546.

We first address the issue of unseaworthiness. In reviewing the elements of an unseaworthiness claim, the Louisiana Supreme Court has explained:

|BThe owner of a vessel has a duty to furnish a seaworthy vessel. This duty is absolute and nondelegable. Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332 (5th Cir.1993). It extends to a defective condition of the ship, its equipment, or appurtenances. Phillips v. Western Co. of North America, 953 F.2d 923, 928 (5th Cir.1992). A ship’s equipment and appurtenances include most objects and things on or attached to the vessel regardless of whether the item belongs to the ship or is brought aboard by a third party. See 1 Schoenb-aum, supra, § 6-25, at 333-34.
A breach of the duty of seaworthiness gives rise to a claim for general damages. The plaintiff bears the burden of proving that “the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir.1988).
The test for determining unseaworthiness is one of reasonable fitness. The vessel, its equipment, and appurtenances need not be perfect, but all must be reasonably fit for their intended use. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960). Unseaworthiness, then, is a relative term dependent on the circumstances. For example, a valve stem wrapped in duct tape created an unsea-worthy condition because it could no longer be opened by hand, the intended method of operation, to regulate the flow of liquid cargo. Gavagan v. United States, 955 F.2d 1016, 1018 (5th Cir. 1992). In contrast, an automatic valve that did not close completely did not constitute unseaworthiness when steam and hot water escaped from it and injured a worker. The court determined that its intended purpose was not to safeguard workers from escaping steam, but instead to maintain pressure inside the ship’s boiler, and the automatic valve did not have to close completely to perform this function. Jordan v. United States Lines, Inc., 738 F.2d 48, 49-50 (1st Cir.1984).

Foster v. Destín Trading Corp., 96-0803, pp. 5-7 (La.5/30/97); 700 So.2d 199, 209 (on rehearing).

The trial court’s reasoning in granting the motion for summary judgment rested on Mr. Campbell’s testimony indicating that the rain began within the three to five minutes it took him to retrieve the oil and begin his ascent of the stairs. The court concluded that this timing left the crew with insufficient time in which to close the hatches and prevent the floor from becoming wet. Reference to the plaintiffs | ^evidence indicates, however, that the basis for the plaintiffs unseaworthiness claim is the allegation that hatches above the stairway should not have been left open for ventilation purposes at all, exposing them to the elements in the event of rain.

In support of its motion for summary judgment, the defendant points to an excerpt from the plaintiffs testimony in which he explained that it was not raining at the time he descended into the engine room and that he spent three to five minutes filling the oil buckets. It argues that the crew could not have been expected to react and close the hatches within this period of time. It advances cases for the proposition that wet steps caused by exposure to the rain is an ordinary hazard encountered by vessels and one that requires seamen to adapt to these hazards. See 5-J’s Towing, Inc. v. Verdin, 1994 WL 71280 (E.D.La.1994); Saleh v. United States of America, 849 F.Supp. 886 (S.D.N.Y.1994); and Creppel v. J.W. Banta Towing, Inc., 202 F.Supp. 508 (E.D.La. 1962).

In opposition to the motion for summary judgment, the plaintiff presented a number of depositions, including his own. He explained that he felt that the defendant was negligent in not closing the hatches and, also, in not having an alternative method of pumping the oil up the stairs. He explained that other tugs have this type of pumping mechanism. The plaintiff also presented the Higman Personal Safety Manuel, which, under the Safety Rules section, subsection B(45), instructs, in part: “Keep all hatch covers secured when not conducting cargo operations.” Additionally, the plaintiff offered the affidavit of Frank M. Buck, Sr., who he presents as an expert in the field of safe operations and navigation of motor vessels. Mr. Buck explained in the affidavit that he had reviewed documents, records, and depositions related to the accident. He also stated that 17he had interviewed Mr. Campbell and that he had personally inspected the M/V George H. Thomas and its tow, boarding the vessel and photographing the interior and exterior.

Regarding the issue of unseaworthiness, Mr. Buck opined:

The hatches were not being used for then- indented [sic] purpose. The evidence revealed that the hatches were being used as a ventilation system which was not the purpose for which they were designed. My inspection revealed the engine room was equipped with a vent with an electric motor to push fresh air into the engine room and a second vent located on the back wall of the stack on the upper deck which was equipped with an electric motor and fan to pull the hot air out of the engine room. Hatches should not have been utilized as vents and, if they were, they were not fit for their intended purpose in that when it rained they allowed an accumulation of rain water on the catwalk and down in the engine room, causing an unseawor-thy condition. Vents are designed to allow air to enter and/or escape from an area without allowing rain or water to enter the area.

Despite the defendant’s contentions regarding the short duration of the rainfall, the expert’s opinion creates a genuine issue of material fact as to whether the hatches should have been opened at all. Even if the defendant correctly asserts that the three to five minutes left insufficient time for the crew to respond, the question regarding whether the hatches were used for their intended purpose remains due to the above excerpt from the expert’s affidavit. The expert examined the vessel, concluding that a ventilation system existed in the engine room and that the hatches were not being used for their intended purpose. The Louisiana Supreme Court has explained:

[D]espite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 at pp. 16-17 (La.2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion”); See also Hebert v. St. Paul Fire and Marine Ins. Co., 99-0833 (La.App. 4th Cir.2/23/00), 757 So.2d 814, cert, denied, 00-0861 (La.5/5/00), 761 So.2d 550. Under that standard, the lower courts erred in failing to find a genuine issue of material fact created by the inferences reasonably drawn from the expert’s affidavit.
_Ll- • • •
Finally, and most importantly, when the party opposing the summary judgment motion submits expert opinion evidence that would be admissible and that is sufficient to allow a reasonable juror to conclude the expert’s opinion on a material fact more likely than not is true, the court should deny the summary judgment motion. Independent Fire, supra.

Willis v. Medders, 00-2507, pp. 2-3 (La.12/8/00); 775 So.2d 1049, 1050-51.

Our review of the plaintiffs submission in opposition to the motion for summary judgment, in particular, the affidavit of Frank Buck, indicates that it could allow a factfinder to consider his opinion more likely than not to be true. Mr. Buck offered his opinion as to the appropriateness of the hatches being used for ventilation. This issue is beyond that of whether the crew should have reacted in closing the hatches after the rainfall. Accordingly, summary judgment on the issue of seaworthiness is inappropriate. See Willis, 00-2507; 775 So.2d 1049; Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00); 755 So.2d 226.

Jones Act

In Foster, 96-0803; 700 So.2d 199, the Louisiana Supreme Court explained that, pursuant to 46 U.S.C. app. § 688 (1994), the Jones Act permits an injured seaman to pursue a negligence claim against an employer. “The employer’s potential liability extends to all personal injuries arising during the course of the seaman’s employment, but proof of negligence is essential to recovery.” Id. at p. 3; 208. Furthermore:

Such negligence may arise in many ways including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-21, at 312 (2d ed.1994). The duty of care owed by an employer under the Jones Act is that of ordinary prudence, namely 13the duty to take reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335-36 (5th Cir.1997). The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries.

Id. at pp. 3-4; 208.

Under the negligence theory of recovery, the plaintiff asserts that the crew was negligent in permitting the floors to exist in a wet condition, whether that be through the open hatches or whether that be from floors that, prior to being wet, existed in a greasy state. In opposition to the motion for summary judgment on this issue, the plaintiffs again presented Frank Buck’s expert opinion in affidavit form. With regard to negligence, the affidavit provides:

A. Higman Barge Lines, Inc. is negligent for allowing Captain Hatfield and relief pilot, Steve Simon, to vent the engine room utilizing the hatches which were designed to allow the engines to be removed from the engine room without having to dismantle the vessel cabin.
B. Higman Barge Lines, Inc. is negligent for failing to adopt safe practices which would have eliminated the need to have the crew manually carry buckets of oil up the twenty-six inch wide, steep engine room stairs to change the oil on the barges. Fresh oil could have easily been stored on the stern of the vessel, on the barges, or even on the catwalk in the inner cabin near the top of the stairs where the accident in question occurred. This could have been completed through the use of fifty-five gallon drums or five gallon buckets of oil which the fuel boat would have had readily available. Furthermore, at a very low cost, Higman Barge Lines, Inc. could have installed a pump with piping to pump the oil out of the engine room to the upper deck.
C. Hickman [sic] Barges [sic] Lines, Inc. is negligent for failing to use anti-skid paint on the catwalk at the top of the stairs leading from the engine room. Based upon the deposition testimonies reviewed, it appears that the catwalk had not been painted since September, 1997, at least six months prior to the accident in question. The photographs provided by the defendants and the video footage appear to show that the catwalk at the top of these stairs was worn to the point that they created an unsafe condition.
|inD. It was negligent for the captain and/or the phot not to radio Mr. Campbell in the engine room when it began raining to advise that the hatches were open and rain may be gathering on the catwalk.

As it did under the theory of unseaworthiness, the affidavit provides a basis upon which a trier of fact could find in favor of the plaintiff. This renders the matter inappropriate for summary judgment. See Willis, 00-2507; 775 So.2d 1049; Independent Fire Ins., 99-2181, 99-2257; 755 So.2d 226. While the federal district court opinions cited by the defendant, and relied upon by the trial court, reference facts similar to the case at issue as they involved wet deck conditions, or an allegation of grease on the flooring, the facts of this ease, as well as the allegations, may be viewed as distinguishable. In this case, the allegedly wet floor was one that would typically be dry, save for the open hatches, and expert testimony puts at issue whether the hatches were appropriately open at all. Additionally, the defendant’s safety manual advises that the hatches are to remain closed. We also point out that only one of the cases advanced by the defendant, Saleh, 849 F.Supp. 886, which is from the Southern District of New York, involved a summary judgment. The other two cases relied upon by the defendant, 5-J’s Towing, 1994 WL 71280 and Creppel v. Banta, 202 F.Supp. 508, were rendered following a full trial on the merits and are from the Eastern District of Louisiana. For these reasons, we conclude that summary judgment is inappropriate on the negligence question.

Maintenance and Cure

Finally, in response to the plaintiffs claim that he was entitled to continued maintenance and cure, the defendant asserted that no genuine issues of material fact exist with regard to whether any further surgeries or procedures will improve Mr. Campbell’s condition.

vi Maintenance and cure is a duty imposed on a vessel’s owner to provide food, lodging, and necessary medical services to a seaman who has become ill or injured while in service to the ship. Sims v. Wood Towing Co., Inc., 99-869 (La.App. 5 Cir. 2/16/00); 757 So.2d 783, writ denied, 00-1539 (La.6/30/00); 767 So.2d 41. Maintenance is compensation by way of a stipend to cover the costs associated with food and lodging, equivalent to that received on the vessel. Id. “Cure is payment of the seaman’s medical, therapeutic and hospital expenses, until that point in time when plaintiff reaches maximum medical recovery.” Id. at pp. 5-6; 788. Maximum cure is achieved when it appears the seaman’s condition is incurable and future treatment will only relieve pain and suffering, not provide an improved physical condition. Navarro v. Aries Marine Corp., 97-1630 (La.App. 3 Cir. 4/29/98); 713 So.2d 613, writ denied, 98-1446 (La.9/4/98); 723 So.2d 958.

In support of its motion on the issue of maintenance and cure, the defendant presented a letter from Mr. Campbell’s treating physician, Dr. A.M. Khatri, to the claims adjuster, indicating that he feels the plaintiff has reached maximum medical improvement. Dr. Khatri explained:

[The plaintiff] was last seen in the office on April 12, 1999. His back pain remains about the same. He informed me that he was seen by a company physician in Houston and was suggested to consider another back surgery. He is reluctant to consider back surgery at present. He gave history of persistent back pain, minimal left leg pain and left hip pain, and improved numbness. He was placed on Celebrex 200 mg. daily. The patient is six months post-op lumbar laminectomy. I believe that he has reached maximum medical improvement and needs functional capacity evaluation and impairment rating.

Furthermore, in a deposition excerpt, Dr. Khatri explained that, at the time of the letter, there was nothing that could be done to improve the plaintiffs condition. He 11?also explained that the surgery referenced in the above letter, would offer very little improvement and would not make the plaintiff pain-free.

In opposition to the motion for summary judgment on the maintenance and cure issue, the plaintiff presented the affidavit of Dr. Mark A. Hackbarth. Dr. Haek-barth explained that he examined the plaintiff on January 8, 2002 and found him not to be at maximum medical improvement. He stated that:

At this time, I recommend that Teddy Campbell have an implant of a spinal cord stimulation device on a trial basis to determine if he is a candidate for permanent implantation.
The recommended surgical implant is not merely palliative but is designed to relieve his pain, improve his medical condition, and improve his ability to pursue daily activities.

The plaintiffs own affidavit was also filed in which he states that he has considered Dr. Hackbarth’s proposal and has “decided to move forward with the implantation of the spinal cord stimulator.”

We do not consider whether the plaintiff will prevail on the merits. Instead, we consider only whether the evidence demonstrates that genuine issues of material fact exist. In light of Dr. Hackbarth’s statement, regarding the possibility of improving the defendant’s medical condition, we conclude that the defendant failed to demonstrate the absence of genuine issues of material fact on this issue. Accordingly, here too, summary judgment was inappropriate.

DECREE

For the foregoing reasons, the summary judgment entered by the trial court is reversed. All costs are assigned to the defendant, Higman Barge Lines, Inc. This matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . Article III, Section 2 of the United States Constitution provides federal district courts with jurisdiction in "all Cases of admiralty and maritime Jurisdiction!.]” Pursuant to the "saving to suitors" clause of 28 U.S.C. § 1333, which was enacted as a portion of the Judiciary Act of 1789, state courts have concurrent jurisdiction over some admiralty and maritime matters. See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001). 28 U.S.C. § 1333 currently provides:
      The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
      (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

        (2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.
      (Emphasis added.)

      . 48 U.S.C. app. § 688 provides, in part:
      (a) Application of railway employee statutes; jurisdiction
      Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

      . The United States Supreme Court has described the application of general maritime law as follows:
      With admiralty jurisdiction comes the application of substantive admiralty law. Absent a relevant statute, the general maritime law, as developed by the judiciary, applies. Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modification of those rules, and newly created rules.

        East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 864-65, 106 S.Ct. 2295, 2298-99[, 90 L.Ed.2d 865] (1986) (citations and footnote omitted).
      Recovery for the unseaworthiness of a vessel has been recognized by the United States Supreme Court as part of the general maritime law. See The Osceola, 189 U.S. 158, 23 S.Ct. 483[, 47 L.Ed. 760] (1903).

      .The trial court rendered the following written reasons:
      The defendant, Higman Barge Lines, Inc., filed a Motion for Summary Judgment contending that the evidence does not support the imposition of liability. Specifically, that the accumulation of rainwater on interior steps of a vessel which occurred in 3-5 minutes and which allegedly caused the plaintiff to slip and injure himself does not constitute a "viable act of negligence” on the part of the defendant, the vessel owner, and employer.
      This Court agrees. Conditions caused by inclement weather at sea are an ordinary hazard with which seamen must cope, even if they occur inside the vessel. To require a vessel owner to correct this ordinary hazard within 3-5 minutes of its occurrence would impose an onerous and impossible burden. This conclusion is supported by the reasoning found in the cases cited by the defendant [5-J’s Towing, Inc. v. Verdin, 1994 WL 71280 (E.D.La.1994), Creppel v. J.W. Banta Towing, Inc., 202 F.Supp. 508 (E.D.La.1962), Saleh v. United States of. America, 849 F.Supp. 886 (S.D.N.Y.1994)] and by common sense.

        Furthermore, based on the evidence submitted regarding maintenance and cure, the Court finds that the plaintiff has reached maximum cure. If the plaintiff elects to have the surgery indicated, this issue will be revisited.
      Motion for Summary Judgment is granted.


source: Caselaw Access Project

author: h SULLIVAN, Judge.

license: Public Domain

text:
    PUMPELLY OIL, INC. v. RIBBECK CONSTRUCTION CORPORATION.
    No. 02-868.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Richard A. Chozen, Kevin J. Koenig, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Plaintiff/Appellee, Pum-pelly Oil, Inc.
    Frank C. Miller, III, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Ribbeck Construction Corporation.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   h SULLIVAN, Judge.

Ribbeck Construction Corporation (Rib-beck) appeals the trial court’s denial of its exception of lack of subject matter jurisdiction and the issuance of a preliminary injunction enjoining it from proceeding with arbitration. For the following reasons, we afffrm.

Facts

On March 30,1998, Ribbeck entered into a contract with Pumpelly Oil Company, Inc. (Pumpelly) for the construction of the Conoco Breakplace in Lake Charles. After being awarded the contract, Ribbeck subcontracted with Richard Barras d/b/a Barco Foundations to do the dirt work and foundation work required by the contract. Apparently, Mr. Barras could not accomplish the requirements of the subcontract on his own, and he contacted Mike Duhon d/b/a Mike Duhon Dirt Pit to provide certain services. The record indicates that Pumpelly and Ribbeck knew of Mr. Du-hon’s involvement in the project. The services rendered by Mr. Duhon exceeded the costs included in the contract for the dirt work and the foundation work at the construction site. On July 10, 1998, Ribbeck filed a petition against Richard “Ricky” Barras and Barco Foundations, seeking a money judgment against Mr. Barras and a writ of attachment. In its petition, Rib-beck alleged that Mr. Barras had not performed his work as contracted and that, due to representations by him, it incurred additional costs of $45,000.00 over the contract price. Then, on October 21, 1998, Mike Duhon d/b/a Mike Duhon Dirt Pit filed suit against Mr. Barras, Ribbeck, and Pumpelly, seeking a money judgment in the amount of $48,576.25 and enforcement of a materialman’s lien and privilege in conjunction with the work he performed at the construction site. In November 1998, Ribbeck filed a bond to release the lien filed against the Conoco Breakplace.

I ¡¡On January 20, 1999, Ribbeck sought and received final payment from Pumpelly under the contract. In connection with the final payment, it executed a document entitled “Unconditional Waiver and Release upon Final Payment.”

Thereafter, on March 24, 1999, counsel for Ribbeck filed a motion for summary judgment on behalf of Pumpelly in the Duhon suit, which was granted, and Pum-pelly was dismissed from the litigation. The Barras suit and the Duhon suit were then consolidated. During trial of the consolidated matters in December 2001, Rib-beck settled with Mr. Duhon for $46,500.00. The settlement documents included an assignment of Mr. Duhon’s claim to Ribbeck.

In February 2002, Ribbeck filed a demand for arbitration with the American Arbitration Association regarding the additional funds it sought to recover from Pumpelly. On March 1, 2002, Pumpelly filed a petition for declaratory judgment, seeking a judgment declaring that Ribbeck had waived its right to collect additional payments and/or that its obligations to Ribbeck were extinguished under the terms of the contract. In response, Rib-beck filed an exception of lack of subject matter jurisdiction, alleging that the contract contained a provision for arbitration and that determination of whether it was entitled to proceed in arbitration was not subject to a judicial determination. Following a hearing held May 8, 2002, the trial court denied the exception. On May 9, 2002, Pumpelly filed a motion for temporary restraining order (TRO) and rule for preliminary injunction to enjoin the arbitration instituted by Ribbeck. The trial court granted the TRO and, after a hearing, granted a preliminary injunction.

| ¡¡Ribbeck filed an application for writs regarding the issuance of the TRO and the preliminary injunction; it filed an appeal regarding the denial of its exception of subject matter jurisdiction. The two matters were consolidated by this court.

Arbitration

Ribbeck contends that it was error for the trial court to determine whether Pumpelly had to submit to arbitration, arguing that an arbitrator, not the trial court, should make that determination. The contract’s arbitration provision provides:

4.6.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subpara-graphs 4.3.10, 9.10.4 and 9.10.5., shall, ... be subject to arbitration.

Pumpelly’s claim that Ribbeck waived additional payment is based on Subpara-graph 9.10.5 of the contract which provides:

Acceptance of final payment by the Contract, a Subcontractor or material supplier ... shall constitute a waiver of claims by that payee except those previously made in writing and identified as unsettled as of the time of final Application for Payment.

The right to demand arbitration is strong under federal and state law. Collins v. Prudential Ins. Co. of America, 99-1423 (La.1/19/00); 752 So.2d 825; Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756 (La.1982). La. R.S. 9:4201 provides that when a contract contains an arbitration provision it “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

Ribbeck argues that the trial court determined issues of “procedural arbitrability” that should have been presented to an arbitrator, citing Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La. 1974), Willis-Knighton Medical Center v. Southern Builders, Inc., 392 So.2d 505 (La.App. 2 Cir.1980), and Charles \ ¡Ragusa & Son, Inc. v. St. John the Baptist Parish School Board, 629 So.2d 1302 (La.App. 4 Cir.1993), writ denied, 94-100 (La.3/11/94); 634 So.2d 395. In Bartley, the contractor filed suit against the owner of a project to compel arbitration regarding its claim for payment for work that it performed after accepting final payment from the owner. The owner attempted to enjoin the arbitration. The supreme court refused to consider the owner’s claims of prematurity and waiver because they are “questions of procedural arbitrability [which] should not be decided by the courts, without having been submitted to .the arbitrator.... ” Bartley, 302 So.2d at 283.

The courts in Willis-Knighton, 392 So.2d 505, and Ragusa, 629 So.2d 1302, followed Bartley, 302 So.2d 280. In these cases, as in Bartley, the work for which payment was sought was performed after final payment. In Ragusa, the school board participated in arbitration of the contractor’s claim, but sought to have the arbitrator’s award vacated. The court refused to vacate the award, noting that the school board failed to object to the arbitration proceedings or to file an injunction to prevent Ragusa from proceeding with the arbitration.

In spite of La.R.S. 9:4201’s provision that an arbitration clause Is irrevocable and cases like Bartley, Willis-Knighton, and Ragusa, courts have held that a party’s conduct can effect a waiver of its right to demand arbitration. See Thomas v. Desire Community Hous. Corp., 98-2097 (La.App. 4 Cir. 7/19/00); 773 So.2d 755; Albert K. Newlin, Inc. v. Morris, 99-1093 (La.App. 3 Cir. 1/5/00); 758 So.2d 222; I.D.C., Inc. v. McCainAWinkler Partnership, 396 So.2d 590 (La.App. 3 Cir.1981); Sim v. Beauregard Elec. Coop., Inc., 322 So.2d 410 (La.App. 3 Cir.1975). In these cases, the right to demand arbitration was found to have been waived because the party |5demanding arbitration participated in litigation before seeking -to stay the proceedings for arbitration.

In I.D.C., 396 So.2d 590, this court reversed the trial court’s order compelling arbitration, finding that the defendant’s participation in litigation for seventeen months before seeking arbitration constituted a waiver of its right to arbitration. The court distinguished cases where the plaintiff instituted suit to compel arbitration from cases where the plaintiff sought to resist arbitration on the basis that the defendant had waived its right to arbitration and held that, because the defendants participated in the litigation for seventeen months before seeking to compel arbitration, they waived their right to demand arbitration.

We conclude that Ribbeck waived its right to demand arbitration because: 1) the work for which payment is sought herein was performed before Ribbeck requested and accepted final payment; 2) Ribbeck knew that the dirt work costs exceeded the contract and subcontract price when it filed suit against Mr. Barras, six months before it requested and accepted final payment; 3) Ribbeck and Pumpelly were sued for payment of the extra dirt work costs three months before final payment; 4) counsel for Ribbeck obtained summary judgment and dismissal in favor of Pumpelly in the Duhon litigation; 5) Ribbeck executed an unconditional waiver and final release when it received final payment; 6) Ribbeck did not except in writing the dirt work claim from its final payment as required by paragraph 9.10.5 of the contract; 8) Ribbeck participated in litigation regarding this claim for three years before it demanded arbitration with Pumpelly; and 9) the claim at issue was acquired by assignment from Mr. Duhon who was not party to a contract with either Ribbeck or Pumpelly. Additionally, in its petition against Mr. Barras, Ribbeck alleged that his |/‘subcontract incorporated the provisions, specifications, and plans of the general contract”; therefore, it apparently had the right to demand arbitration regarding those claims, but filed suit instead.

Ribbeck argues that it did not “realize” the merit of Mr. Duhon’s claim until it learned certain information during the trial on his claim. Even if this assertion is true, it had knowledge of the claim before it accepted final payment from Pumpelly and executed the release, but did not take action to preserve the claim against Pum-pelly as provided in their contract.

The denial of Ribbeck’s exception of lack of subject matter jurisdiction is affirmed.

Preliminary Injunction

Ribbeck argues that the trial court erred when it enjoined the arbitration because of the strong presumption in favor of arbitration and because Pumpelly did not establish that it would suffer irreparable injury.

To obtain a preliminary injunction, the mover must make a prima facie showing that he will prevail on the merits of the case and that he will suffer irreparable injury if the injunction does not issue. Jim Walter Homes, Inc. v. lessen, 98-1685 (La.App. 3 Cir. 3/31/99); 732 So.2d 699. Trial courts have “great discretion” in determining whether to grant or deny a preliminary injunction. Lafayette City-Parish Consol. Gov’t v. Lafayette Mun. Fire & Police Civil Serv. Bd., 01-1460 (La.App. 3 Cir. 5/8/02); 816 So.2d 977, writ denied, 02-1565 (La.9/30/02); 825 So.2d 1194. The issuance of an injunction will be reversed “only if it be shown that such discretion has been abused or improvidently exercised.” Id. at 980, quoting \ ^Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063, 1072 (La.App. 3 Cir. 1981).

The trial court determined that the unconditional waiver and release of claims signed by Ribbeck established a “prima facie ” case that Pumpelly would prevail on the merits, noting that none of the cases cited by Ribbeck referenced a waiver and release having been signed when the contractor accepted the final payment. We find no error with this determination.

Generally, irreparable injury means that “there is no adequate remedy at law, and the loss alleged cannot be adequately compensated in money, or is not susceptible of being measured by pecuniary standards.” Jim Walter Homes, 732 So.2d at 703. Where “a judgment would be valueless, either because of insolvency or other reasons,” injunctive relief has been held to be proper. Ciambotti v. Decatur St.-Louis, Lupin, Properties Ventures, 533 So.2d 1352, 1359 (La.App. 3 Cir. 1988).

The trial court concluded that, for a number of reasons, arbitration would cause Pumpelly irreparable injury, including it does not have a claim against Ribbeck to recoup its expenses and/or losses associated with arbitration, Ribbeck’s claim was assigned to it in connection with its settlement of Mr. Duhon’s litigation, and Mr. Duhon, a third party to Ribbeck’s and Pumpelly’s contract, was not party to a contract which contained an arbitration agreement.

Normally, the time and expense of litigation or arbitration are not considered to be irreparable harm. Collins, 752 So.2d 825. In Collins, the issue was whether an order compelling arbitration was appealable. After finding that “as a matter of state law ... an order compelling arbitration” does not give rise to irreparable injury, the supreme court determined that the order at issue was not appealable. Id. at 830-31. | ¡plowever, the court did recognize that there are circumstances in which an order compelling arbitration might cause irreparable injury. Justice Lemmon subscribed additional reasons to the majority’s opinion, noting that the supreme court has not adopted the position of the appellate courts that being compelled to arbitrate is “never irreparable injury.” Id. at 832. Additionally, he observed:

When a party unsuccessfully raises an issue pre-trial by supervisory writs and is ultimately successful on the issue on appeal after trial on the merits, the party is literally injured irreparably because the party can never recover the time and expense of the litigation that could have been avoided if the reviewing court would have exercised supervisory jurisdiction and corrected the error pri- or to trial.

Id.

In our opinion, Ribbeck’s actions, which are the basis for our determination that it waived its right to demand arbitration, are extraordinary circumstances, which except this case from the general rule that the time and expense of litigation and/or arbitration is not irreparable injury. Accordingly, we find no error with the trial court’s issuance of the preliminary injunction.

Decree

The trial court’s denial of Ribbeck Construction Corporation’s exception of lack of subject matter and issuance of a preliminary injunction, enjoining the arbitration proceedings instituted by Ribbeck Construction Corporation, are affirmed. All costs of this appeal are assessed to Rib-beck Construction Corporation.

AFFIRMED.


author: | ¶ DOUCET, Judge.

text:
    Deborah Conner HOTARD v. DIABETES SELF MANAGEMENT CENTER, INC., Rebecca J. Abel, and Melissa A. Hanks.
    No. 02-944.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Stan Gauthier, II, Lafayette, LA, for the Plaintiff/Appellant, Deborah Connor Ho-tard.
    Ted W. Hoyt, Lafayette, LA, for the Defendant/Appellee, Louisiana Health Care Group, Inc.
    Nicholas Gaehassin, III, Lafayette, LA, for the Defendants/Appellees, Diabetes Self Management Center, Inc, Rebecca J. Abel and Melissa A. Hanks.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   | ¶ DOUCET, Judge.

The Plaintiff, Deborah Conner Hotard, filed this action seeking to have the June 22, 2000 meeting of the shareholders of the Defendant, Diabetes Self Management Center, Inc. (DSMC), declared invalid, and seeking judicial recognition of the status of certain shareholders, employees and board members of the corporation. The trial court dismissed her claims. Hotard appeals.

The trial court accurately outlined the facts underlying this matter as follows:

This matter is before the Court on a Petition for Declaratory Judgment seeking to have a shareholder meeting that occurred on June 22, 2000, declared invalid. The suit also seeks judicial recognition of the status of certain shareholders, employees and board members of the defendant corporation. A trial on the merits was heard January 23, 2002, following which the matter was taken under advisement.
The parties stipulated to the following facts before beginning the trial: (1) pri- or to June 22, 2000, neither Hotard, Hanks, Abel, or Louisiana Healthcare had contributed any money in payment of their shares; (2) that prior to June 22, 2000, there were no meetings to establish the par value of the corporation’s stock; (3) that prior to June 22, 2000, Melissa Hanks was not elected to the board of directors; and (4) that there were no written stock subscription agreements or employment contracts.
The testimony established that Diabetes Self Management Center, Inc. (“DSMC”) was incorporated in January of 1998. The first board of directors included Frank Hebert, Rebecca Abel, Deborah Hotard, and Keith Lamm. The minutes of the first board meeting dated January 26, 1998, reflect that the shareholders included the members of the board and William Fuqua and that they held a total of 188 shares. In 1998, Keith Lamm, Frank Hebert, and William Fuqua withdrew as shareholders of the corporation and DSMC redeemed their stock. The minutes of the board meeting of October 20, 1998, indicate that Melissa Hanks then held shares of stock and participated in board meetings. The stock certificates indicated that Hanks had 12 shares, changing the total outstanding stock to 108 shares after Hebert, Lamm and Fuqua withdrew. Until June 22, 2000, Abel, Hanks and Hotard conducted the affairs of the corporation and represented themselves in corporate documents as shareholders owning shares of DSMC in the following proportions: Hotard (48), Abel (48), and Hanks (12).
|gBy notice mailed June 12, 2000, Abel called a shareholder meeting for June 22, 2000. The Plaintiff, Deborah Hotard, objected to the meeting on the basis that no stocks had been issued, no par value ever set for the stocks, and consequently, that there were no shareholders. Hotard appeared at the meeting to voice her objection, and then withdrew with her attorney. After she left, Hanks was elected to the board of directors and Abel, as President of the corporation, terminated the employment of Hotard. Thereafter, Hanks and Abel sold their interest in the corporation (totaling 60 shares) to Louisiana Health Care Group, Inc. for $30,700 plus the assumption of any bank loan guarantees relating to any lines of credit by Iberia Bank for loans by stockholders to the company. On March 6, 2001, the board set the par value of its stock at $1,000 calling for payment by March 9, 2001. Louisiana Health Care Group, Inc. subsequently paid for its shares of stock before the deadline. The Plaintiff, Hotard, did not. At a shareholder’s meeting held March 12,-2001, the shareholders ratified the actions of the shareholders at the meeting of June 22, 2000, and ratified the actions of the board at the meeting of March 6, 2001.

The trial court dismissed Hotard’s claims. Hotard appeals, asserting the following assignments of error:

1. The Trial Court erred in holding that there were Shareholders of DSMC on June 22, 2000 as it was stipulated that:
A) Prior to June 22, 2000 there was no meeting of the Board of Directors of DSMC to place a par value on the shares of stock in DSMC; and,
B) Prior to June 22, 2000 no interested party paid any cash compensation for shares of stock in DSMC.
2. The Trial Court erred in failing to hold that Hotard and Abel were the only members of the Board of Directors of DSMC on June 22, 2000.
3. The Trial Court erred in failing to rule that any action taken by the Shareholders and/or Board of Directors of DSMC after June 22, 2000 was null and void because:
A) There are no Shareholders of DSMC; and,
B) As there were no Shareholders of DSMC, Hanks could not be elected, to the Board of Directors of DSMC at the meeting of June 22, 2000; and, since Hotard did not attend any meeting of the Board of Directors held after June 22, 2000 a quorum was not present and no meetings of the Board of Directors of DSMC could be held.
|c.4. The Trial Court erred in failing to declare that Hotard and Abel have subscription rights to forty-eight (48) shares each of stock in DSMC.
5. The Trial Court erred in failing to hold that Hanks did [not] have any subscription rights to twelve (12) shares of stock in DSMC.

These are essentially the same assertions made by the Plaintiff at trial. The trial court found as follows:

The Plaintiff is specifically requesting judgment declaring the following: (1) that she be reinstated as an officer and employee of the Corporation retroactive to June 19,2000; (2) that Hotard and Abel have subscription rights to 48 shares of stock each; (3) that Hanks has no subscription rights; (4) that Hotard and Abel are the sole members of the board of directors; and (5) that any action taken by the board of directors after June 22, 2000, is invalid and of no effect.
Louisiana law is clear that subscriptions for shares of stock are required to be in writing. “It is a general rule that the subscription must be for a definite number of shares, and must show the amount that the defendant agrees to pay therefore.” Ashley v. Coleman, 219 So.2d 574, (La.App. 4 Cir.1974), at 576, citing Fletcher’s Cyclopedia of the Law of Private Corporations, Vol. IV § 1479. Accordingly, this Court finds there is insufficient evidence to conclude that any of the principals received subscriptions for shares.
On the other hand, La.R.S. 12:52(0 provides that consideration shall be paid before shares are issued. In the case of DSMC, there was no consideration paid for the stock by any of the shareholders at the time of issuance. While it is therefore arguable that the issuance of stock by DSMC was invalid, this statute also provides that upon payment of the consideration fixed, shares shall be considered as fully paid. Once the shares of DSMC had a value assigned and payment was received, the shares could be considered as fully-paid, properly-issued shares even if the initial issuance may have been improper. Ogden v. Culpep-per, 474 So.2d 1346 (La.App. 2 Cir.1985).
Documents executed by the corporation evidenced that Hanks was a shareholder of 12 shares. Some of these documents are signed by Plaintiff indicating her concurrence to an issuance of 12 shares to Hanks. Hanks and Abel both testified that Hanks, was involved in the formation of the company. Hanks testified that she was offered the shares by Hotard and Abel. It is more than logical to infer that she was active in the conduct of the corporation and that at some time after the first board meeting, but prior to the second board meeting, DSMC issued 12 shares to Hanks, but never received payment for the same | ¿because there was no established par value and no one else made payment for shares either.
Considering the preponderance of the evidence with regard to the 12 shares of stock belonging to Hanks, the Court makes a factual finding that on June 22, 2000, Hanks was a shareholder that had not made payment for her shares to the same extent as all other shareholders. Once the value of the stock was established by the board at the meeting of March 6, 2001, it was incumbent upon all shareholders to make payment to the corporation for their shares in order to have the benefit of 12:52(C), which validates improperly issued stock upon payment. Hotard never made payment for her shares after March 6, 2001, and consequently the Court has previously ruled that she is not a shareholder.
By disposing of this shareholder status of Hanks in favor of the Defendants, it follows that there were shareholders at the meeting of June 22, 2000, the shareholders present constituted a quorum, the appointment of Hanks to the board of directors should stand, and the actions taken by the board of directors that included Hanks are valid.

We have reviewed the legal and factual finding of the trial court in light of the evidence of record. Finding no error in the trial court’s reasoning, we adopt the reasons of the trial court as our own.

As a result, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff/Appellant.

AFFIRMED.


author: 1 .PETERS, J.

text:
    STATE in the Interest of A.P.
    No. 02-1030.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Anne G. Stevens, City Prosecutor, New Iberia, LA, for Appellee, State of Louisiana.
    Nancy Heitman-Landry, New Iberia, LA, for Appellant, A.P.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   1 .PETERS, J.

This litigation began with the filing of a petition to have A.P., a juvenile, adjudicated a juvenile delinquent. After a hearing, the trial court adjudicated A.P. as a juvenile delinquent. The trial court then committed A.P. to the custody of the Department of Corrections, Office of Youth Services, for a period of six months. A.P. now appeals her adjudication as a juvenile delinquent, asserting that the state faded to produce sufficient evidence to support the trial court’s determination.

In its petition, the state alleged that on January 29, 2002, A.P. committed the offense of theft of goods, a violation of La. R.S. 14:67.10. At trial, the state presented evidence to the effect that the theft occurred at the New Iberia, Louisiana K-Mart store. The principal evidence directly connecting A.P. to the theft was the testimony of Patricia Swebek, a K-Mart employee.

Ms. Swebek testified that, while working at K-Mart on January 29, 2002, she observed A.P. and another female juvenile enter the electronics department of the store, select a number of CDs from the display rack, open two of the cases holding the CDs, and conceal the CDs. She then observed the two females discard the empty cases, select a hair kit, proceed to the cashier, and pay for the hair kit only.

Ms. Swebek then approached the two female juveniles and confronted them concerning the CDs. According to Ms. Swe-bek, the two juveniles were initially belligerent and began using profanity. She instructed them to follow her to the store’s loss prevention office, and they initially complied. However, before arriving at the office, the juveniles turned and exited the store. Ms. Swebek then contacted the New Iberia City Police.

The two juveniles were taken into police custody a short time later. Upon being questioned by Officer James Patton, one of the officers who responded to Ms. | ?,Swebek’s call for assistance, the other juvenile informed him that they had deposited the CDs in the infant department of the K-Mart store. The CDs were retrieved from the place described by the other juvenile and seized as evidence. According to Officer Patton, A.P. was uncooperative during his interrogation.

A.P. testified in her own defense that she did not take the CDs from the store, although she admitted taking two from the display rack. According to A.P., the other juvenile also removed one from the rack and they then went to the infant’s department where the other juvenile took the plastic wrapper off the CDs. A.P. admitted that the other juvenile handed each CD to her after removing the plastic wrapper. However, she acknowledged that another lady had observed the other juvenile’s and her actions, and she stated that she gave the three CDs back to the other juvenile and told her to “[g]o put that down.” A.P. stated that she began walking away. When cross-examined by the state, A.P. admitted that she and the other juvenile intended to steal the three CDs and changed their minds only when they thought they were being observed by store personnel. According to A.P., it was the other juvenile who “stashed” the CDs in the infant section of the store.

While the CDs themselves never left the store, they were removed from their wrappers and the cases in which they came were discarded. Ms. Swebek testified that merchandise in that condition was considered by K-Mart to be damaged and, therefore, not sellable.

OPINION

The offense of theft of goods is committed through the “misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations.” La.R.S. 14:67.10(A). Wben committed by Ran adult, the offense can either be a felony or misdemeanor, depending on the value of the thing taken. La.R.S. 14:67.10(B). Thus, the value of the goods taken is an integral requirement of a theft of goods charge against an adult. It affects whether the offense is a misdemeanor or felony and, thus, whether or not a defendant is entitled to a jury trial. Additionally, it determines whether a defendant is entitled to an appeal of his conviction or only to an application for supervisory writs.

In this case, the petition failed to establish the value of the goods taken. Additionally, the record contains no evidence of their value. Thus, this failure caused the bill of information to be invalid, and we recognize this as an error patent.

The fact that A.P. is a juvenile and not entitled to a jury trial is not a distinction that makes a difference in our analysis of the matter now before us. The disposition to which a juvenile might be exposed also depends upon whether the act charged is a felony grade act. See La.Ch.Code arts. 897-900. The state’s failure to assert the grade of the offense charged is fatal to the adjudication process. Therefore, we reverse the adjudication of delinquency and order of commitment, discharge the defendant, and dismiss the state’s petition.

DISPOSITION

The adjudication of A.P. as a juvenile delinquent and her commitment to the Department of Corrections, Office of Youth Services, is reversed. A.P. is discharged, and the state’s petition is dismissed.

REVERSED.


author: LGREMILLION, Judge.

text:
    Herman KENNEDY v. CAMELLIA GARDEN MANOR.
    No. 02-1027.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Larry B. Minton, Alexandria, LA, for Plaintiff/Appellee Herman Kennedy.
    Brian Paul Bowes, Hudson, Potts & Bernstein, Monroe, LA, for Defendant/Appellant Camellia Garden Manor.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   LGREMILLION, Judge.

The defendant nursing home, Camellia Garden Manor, appeals the judgment of the workers’ compensation judge in favor of the plaintiff, Herman Kennedy, finding that he suffered injuries as a result of a work-related accident and that the level of marijuana in his system did not contribute to the accident. For the following reasons, we affirm.

FACTS

Kennedy began working as an orderly for Camellia Garden on June 1, 2001. On June 27, 2001, he suffered an alleged injury to his lower back while attempting to pull a struggling quadriplegic resident back into a whirlpool chair. As a result of this injury, Kennedy suffered a bulging disc at L5-S1 with L5 radiculopathy, but his referral for a neurosurgical evaluation was denied by Camellia Garden. A post-accident urine test was positive for marijuana. Camellia Garden terminated Kennedy on August 9, 2001, because he failed a mandatory criminal background check.

On September 10, 2001, Kennedy filed a disputed claim for compensation against Camellia Garden alleging its failure to pay him workers’ compensation benefits and its refusal to authorize medical treatment. Camellia Garden answered this claim alleging that Kennedy’s claim for workers’ compensation benefits was barred because he had tested positive for marijuana use, which created a presumption that he was intoxicated at the time of the accident.

This matter proceeded to a trial on the merits to determine whether Kennedy had suffered a work-related accident and whether the presence of marijuana |¡,in his system contributed to the cause of the accident. At the close of evidence, the workers’ compensation judge issued oral reasons finding that Kennedy was injured as a result of a work-related accident and that he had overcome the presumption that his intoxication was the cause of the accident. Judgment was rendered in this matter by the workers’ compensation judge on May 28, 2002. This appeal by Camellia Garden followed.

ISSUES

Camellia Garden raises three assignments of error on appeal. Basically, it argues that the workers’ compensation judge erred in finding Kennedy credible in proving that he was injured as a result of a work-related accident and that he rebutted the presumption that his intoxication was a cause in fact of his accident.

STANDARD OF REVIEW

The standard of review applied in workers’ compensation matters is set out in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong 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. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 | aSo.2d 1106, 1112 (La.1990).

WORK-RELATED ACCIDENT

In order to receive workers’ compensation benefits, a worker must first establish, by a preponderance of the evidence, “personal injury by accident arising out of and in course of his employment.” La.R.S. 23:1031(A). As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992):

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, IS Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Malone & Johnson, supra; Nelsonfv. Roadway Express, Inc.], supra [588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La. 1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the workers has discharged his or her burden of proof are factual determinations not to be disturbed or reviewed unless clearly wrong or absent a showing of manifest error. Gonzales v. Babeo Farms[Farm], Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

Kennedy testified that he had just removed a quadriplegic resident from the whirlpool, when he noticed that the resident, Arthur Lee, was starting to slip out of the low-backed whirlpool chair. He stated that he tried to pull Lee back up into the chair, but that Lee started struggling. He testified that the more he pulled, the more Lee struggled. Kennedy stated that he finally received help from two nurses |4assistants, Mary Leach and Maude Stephens. After getting Lee back into the chair, he testified that he felt a sharp pain and a burning in his lower back. Although he did not tell Leach or Stephens that his back hurt, he stated that it began hurting worse about forty-five minutes later. He stated that he told Barbara Jones, an LPN, that his back was hurting and she gave him three Tylenols. About an hour and a half later, Kennedy testified that he went to the medicine room and ran into Judy Langston, the director of nurses, and someone named Jennifer. He stated that he told Jennifer that he hurt his back while helping Lee, and that she gave him some Motrin for his pain. Kennedy stated that he finished his last two hours that day. However, he testified that he was unable to work the next day because of pain.

On July 29, 2001, Kennedy stated that he was only able to work about twenty-five minutes due to pain in his lower back. He stated that he told the nurse that his back was still hurting, and she told him to go home and to see a doctor. He testified that he then went home and stayed in bed until about 6:00 p.m., at which time he went to the emergency room at Rapides General Hospital. The emergency room records state that Kennedy complained of lower back pain at work two days ago.

Kennedy was examined by Dr. Robert Smith on July 30, 2001, who diagnosed him as suffering from non-specific low back pain with L5 radiculopathy secondary to lifting. An August 24, 2001 MRI revealed a large broad based central bulge at L5-S1 causing some sac compression and probably SI nerve root compression bilaterally, as the roots exit the sac. Dr. Smith recommended that Kennedy be sent for a neurosurgical evaluation, however, Camellia Garden refused | ^authorization. On August 30, 2001, Dr. Smith informed Kennedy of Camellia Garden’s refusal and recommended that he seek care in the Charity hospital system, since he had findings which needed medical attention.

Both Stephens and Leach recalled the incident where they helped Kennedy lift Lee back into his chair. However, Leach stated that the incident happened in the hall and not in the whirlpool room. Johnson did not recall Kennedy telling her that his back hurt, nor did she recall giving him the Tylenol. When asked if she was certain that she did not give him any medication that day, she stated, “Not that — not that I can remember.” When asked if she saw Kennedy on the day in question, she stated, “Yes. It’s so hard to remember yesterday.” Langston testified that she filled out Kennedy’s accident report on July 29, 2001, when she first learned of his accident. She further stated that she could not recall any conversation or overhearing any conversation with Kennedy on July 27, 2001.

In finding that Kennedy satisfied his burden of proving that his back injury occurred during the course and scope of his employment with Camellia Garden, the workers’ compensation judge found that his testimony about how the accident occurred was corroborated by Leach and by the medical records. Although he pointed out inconsistencies in the evidence, such as Johnson not recalling giving him Tylenol, Langston not recalling a conversation between him and another person, and Leach stating that the incident occurred in the hall instead of the whirlpool room, the workers’ compensation judge found Kennedy very credible. Based on that, and Camellia Garden’s failure to present any evidence refuting Kennedy’s evidence that this accident caused his back injury, the workers’ compensation judge held that he | fiproved that his back injury was caused by his work-related accident. He did so, especially in view of the fact that Kennedy was able to lift patients for the two months preceding to his accident without complaints.

After reviewing the record in its entirety, we cannot say that the workers’ compensation judge erred in finding that Kennedy satisfied his burden of proof. Although there were inconsistencies in the evidence, the workers’ compensation judge considered every one of these before reaching his decision. He further found Kennedy to be very credible. Since this finding is reasonable in light of the record, we are bound by the mandates of Banks, 696 So.2d 551, and Rosell v. ESCO, 549 So.2d 840 (La.1989), and must affirm. Accordingly, this assignment of error is dismissed as being without merit.

INTOXICATION

In its next assignment of error, Camellia Garden argues that the workers’ compensation judge erred in finding that Kennedy satisfactorily rebutted the presumption that the level of marijuana in his system caused his work-related accident.

La.R.S. 23:1081(l)(b) provides that an employee may not recover compensation if his injury was caused by intoxication, unless the intoxication was related to the employer’s interests or its provision of intoxicating substances. An employee is presumed to be intoxicated if there is evidence of use of a nonprescribed controlled dangerous substance. La.R.S. 23:1081(5). In cases involving nonpres-cribed drugs, an employer need only prove the use of such drugs by the employee by a preponderance of the evidence in order to support a finding of |7intoxication. Once it has done this, there arises a presumption of causation due to intoxication. La. R.S. 23:1081(8). Drug tests performed as a result of a written and promulgated drug policy are admissible as evidence in such cases. Id. Once the employer satisfies its burden of proof, it is presumed that the accident was caused by the intoxication. The burden then switches to the employee to prove that the intoxication was not a contributing cause of the accident. La. R.S. 23:1081(12).

In this instance, Camellia Garden introduced a Substance Abuse Report Form of a drug test performed on Kennedy from a urine sample taken from him subsequent to his accident on July 29, 2001. The report states that the test result was positive for marijuana metabolite. Camellia Garden also introduced a form signed by Kennedy on May 30, 2001, which is an acknowledgment by him of its drug free workplace policy and a consent to be tested. Ruth Stelly, the administrator for Camellia Garden, testified that it had a drug testing policy and that it performs post-accident drug screening whenever an accident occurs. Based on this evidence, the workers’ compensation judge held that Camellia Garden proved, by a preponderance of the evidence, the use of marijuana by Kennedy. Accordingly, it was presumed that his work-related accident was caused by his intoxication. We find no error in this finding.

The burden of proof then switched to Kennedy to rebut the presumption of intoxication. Although Kennedy admitted to the use of marijuana daily prior to his employment with Camellia Garden, he testified that he stopped such usage approximately two weeks prior to his return to work. He further stated that he was not under the influence of marijuana on July 27, 2001. However, he did state that he Chad been around family and friends who used marijuana, and that he had ridden in vehicles with friends, who also used it.

Inconclusive testimony as to Kennedy’s supposed intoxication was given by Stephens, Leach, and Langston. Stephens testified that she did not pay much attention to Kennedy’s condition that day, so as to tell what kind of state he was in. Leach stated that, although she worked on the same hall as him, Kennedy did not appear to be intoxicated. However, she did state that she did not see much of him that day. Johnson stated that it was Camellia Garden’s policy to send home any employees who appeared at work intoxicated. She stated that, had Kennedy been intoxicated, she would have clocked his work card and sent him home. She testified that she did not send him home that day.

In finding that Kennedy rebutted the presumption of intoxication, the workers’ compensation judge held that this was not the sort of accident which was caused by intoxication. He stated that the accident was caused by Lee flailing around in the chair, which was confirmed by Leach and Stephens. Since this was a finding of fact, it is reviewed under the manifest error, clearly wrong standard of review. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). After reviewing the record, we cannot say that the workers’ compensation judge erred in finding that Kennedy rebutted the presumption of intoxication. Accordingly, this assignment of error is also dismissed as being without merit.

CONCLUSION

For the forgoing reasons, the judgment of the workers’ compensation judge is affirmed. The costs of this appeal are assessed to the defendant-appellant, | ciCamellia Garden Manor.

AFFIRMED.


author: PETERS, J.

text:
    Easton CREDEUR v. PROFESSIONAL FOOD SERVICE MANAGEMENT.
    No. 02-1009.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Sam. R. Aucoin, Voorhies & Labbé, Lafayette, LA, for Defendant/Appellee, Professional Food Service Management, Inc.
    Easton Credeur, In Proper Person, Lafayette, LA.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   PETERS, J.

In this workers’ compensation case, Ea-ston Credeur appeals the workers’ compensation judge’s denial of his request for additional medical treatment. We affirm that judgment and adopt as our own the workers’ compensation judge’s reasons, which we set forth as follows:

This matter came for trial on February 21, 2002. Several issues were presented, and a judgment was rendered on two issues by judgment signed February 25, 2002. On the remaining issue, the Workers’ Compensation Judge appointed an independent medical examiner to determine whether Mr. Credeur required any additional treatment arising from his 1994 work injury. The report of the independent medical examiner was received on June 12, 2002.
Mr. Credeur sustained a thoracic compression fracture that the employer accepted as work related in 1994. The weight of the medical evidence indicates that the fracture healed without incident. However, Dr. Morgan Lorio, Mr. Credeur’s treating orthopedic specialist, felt that there could be some discogenic component to Mr. Credeur’s complaints that may be related to the thoracic injury, and that further treatment, possibly including surgery, may be warranted. On the other hand, Dr. Gidman and Dr. Blanda both were of the opinion that Mr. Credeur had reached maximum medical improvement from any thoracic fracture within months from the time the fracture was identified. Based upon the conflicts in the medical opinions, Dr. Angela Mayeux was appointed by the court as an IME.
Dr. Mayeux’s report indicates no need for any further studies or diagnostic testing. Her opinion is that the thoracic compression fracture has long since healed and he is at maximum medical improvement from the fracture, and that he should have been returned to work at medium function within 6 months of his date of injury.
The weight of the evidence persuades the court that no further treatment relating to the work injury is necessary, and therefore Mr. Credeur’s claims in this respect will be dismissed.

We find no manifest error in the workers’ compensation judge’s factual findings regarding Mr. Credeur’s entitlement to further medical treatment. Thus, we affirm the judgment and assess costs to Mr. Credeur.

AFFIRMED.


author: h COOKS, Judge.

text:
    Robert VILLARREAL, Jr. v. COMMUNICATIONS SYSTEMS TECH., INC.
    No. 02-1017.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Kevin L. Camel, Cox, Cox, Filo & Camel, Lake Charles, LA, for Appellee, Kevin Villarreal, Jr.
    Musa Rahman, Johnson, Stiltner & Rah-man, Baton Rouge, LA, for Appellant, Communications Systems Tech., Inc.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   h COOKS, Judge.

On April 21, 1999, Robert Villarreal, Jr., was injured when he was struck by a truck while stopped on the side of the road. Although there was no dispute as to the occurrence of the accident, the Louisiana Workers’ Compensation Corporation (LWCC) disputed whether Villarreal was acting in the course and scope of his employment with Communications Systems Technology, Inc., (CST) at the time of the accident. LWCC maintained he was not and refused to pay any compensation benefits to Villarreal.

Villarreal filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC) on June 23, 1999. The matter was tried before the OWC, and on September 5, 2000 the workers’ compensation judge (WCJ) rendered judgment finding Villarreal was engaged in the course and scope of his employment at the time of the accident. LWCC paid all past due benefits and began' paying weekly disability benefits in accordance with the judgment. However, LWCC did not pay or reimburse Villarreal for his outstanding medical expenses. According to Villarreal, as of April, 2001, LWCC had not paid or reimbursed him for any of his outstanding medical expenses.

On April 3, 2001, Villarreal filed a second disputed claim for benefits with the OWC demanding payment of all past medical expenses owed. In response to the claim, LWCC agreed to pay all outstanding medical expenses, and also agreed to pay $2,500.00 in penalties and attorney fees. Villarreal subsequently dismissed the pending claim. However, LWCC still failed to pay or reimburse Villarreal for the outstanding medical expenses. Trial was rescheduled. Counsel for Villarreal sent a letter to LWCC demanding the payment of the outstanding medical expenses, and 12also requesting penalties and attorney fees for LWCC’s failure to pay.

In November of 2001, the parties reached a compromise settlement. LWCC agreed to pay all outstanding medical expenses incurred by Villarreal prior to November 30, 2001. According to Villarreal, when the settlement document arrived it did not provide for payment of the outstanding medical expenses by LWCC. Instead, the document provided Villarreal waive his claim for payment of any and all medical expenses-past, present and future. In response, counsel for Villarreal contacted LWCC and was instructed by it in December of 2001 to amend the documents to indicate LWCC’s agreement to pay the outstanding medical expenses. This was done and forwarded to LWCC. When counsel for Villarreal did not receive the executed documents by January 15, 2002, the claimant decided to file a disputed claim for compensation with the OWC. That disputed claim was filed on January 18, 2002. LWCC subsequently filed the executed settlement documents with the OWC on January 19, 2002. The OWC approved the settlement that day and issued a judgment. LWCC failed to pay the outstanding medical expenses within thirty days of that date.

Villarreal’s disputed claim for compensation was tried on June 17, 2002. The WCJ issued a judgment finding LWCC failed to pay the outstanding medical expenses within thirty days of the January 19, 2002 settlement judgment in violation of La.R.S. 23:1201(G). Villarreal was awarded $3,000.00 in penalties and $5,000.00 in attorney fees. LWCC and CST appealed the trial court’s judgment, asserting the following assignments of error:

1. The judgment of the OWC was legal and manifest error because it awarded attorney’s fees and penalties for failure to comply with a “judgment” that did not exist at the time the cause of action was | .¡commenced. By relying on a wrong judgment, the OWC erred by applying the incorrect law and consequently, failed to recognize Res Judicata which would have otherwise rendered the entire proceeding moot.
2. The OWC abused its discretion when it failed to recognize a stipulation not to sue for penalties and attorney’s fees and furthermore, erred by disregarding evidence that showed that LWCC was not unreasonable, arbitrary or capricious in the handling of the claim.

ANALYSIS

The WCJ awarded Villarreal $3,000.00 in penalties and $5,000.00 in attorney fees in accordance with La.R.S. 23:1201(G), which provides:

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

LWCC argues the claim for penalties and attorney fees under La.R.S. 23:1201(G) is barred by res judicata,. LWCC’s argument is premised on its contention that the parties agreed in the settlement agreement that no further claims would be brought against LWCC. This is not an accurate representation of the claimant’s intent. Further, the claim brought by Villarreal in this case is essentially a request for enforcement of a settlement approved and rendered in the form of a judgment by the OWC. To not allow a claimant to enforce the settlement judgment would render the provisions of subsection G meaningless. Claimants would be unable to enforce their rights in the event they were not paid the amounts agreed to Lin the settlement.

LWCC also argues it should not be assessed penalties and attorney fees under La.R.S. 23:1201(G) because it was not arbitrary and capricious. LWCC states it attempted to pay all submitted medical bills, “but the process of identifying and verifying the paid (by Claimant counsel) and unpaid bills was becoming time consuming. Additionally, LWCC was faced with the burden of adjusting each submitted expense pursuant to the Workers’ Compensation Fee Schedule.” La.R.S. 23:1201(G) does provide an exception to the mandatory imposition of penalties and attorney fees if the “nonpayment results from conditions over which the employer had no control.” As LWCC notes, this exception precludes the WCJ from awarding penalties and attorney fees where the employer meets its burden of proof of establishing that the nonpayment resulted from conditions not under his control. The WCJ apparently concluded that LWCC’s failure to pay did not result from conditions beyond its control and was “unreasonable.” We can find no basis in the record to disturb this factual finding of the WCJ.

Villarreal has requested additional attorney fees for the work necessitated by this appeal. An increase in attorney fees is warranted on appeal when the defendant unsuccessfully appeals, and the appeal necessitates additional work. Sinegal v. Able Glass Co., Inc., 95-10 (La.App. 3 Cir. 10/11/95), 663 So.2d 393. We will award Villarreal an $3,500.00 for the work performed by his counsel on appeal.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. The judgment is amended to award an additional $3,500.00 in attorney fees to Robert Villarreal, Jr. All costs of this appeal are ^assessed to Defendants-Appellants.

AFFIRMED, AS AMENDED.


author: hWOODARD, Judge.

text:
    Chuck BREAUX and Cindy Breaux v. DAUTERIVE HOSPITAL CORPORATION, et al.
    No. 02-1072.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Allen' R. Ingram, Lafayette, LA, for Plaintiffs/Appellees: Chuck and Cindy Breaux.
    Edward P. Landry, Landry, Watkins, Repaske & Breaux, New Iberia, LA, for DefendanVAppellant: Doerle Food Service.
    Joel E. Gooch, Allen & Gooch, Lafayette, LA, for Defendant/Appellee: Dauterive Hospital Corporation.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and ELIZABETH A. PICKETT, Judges.
   hWOODARD, Judge.

In this complex workers’ compensation case, Doerle Food Service, Inc., the Employer/Intervenor, appeals the trial court’s refusal to grant it a credit for any payment of future medical expenses from the money which Mr. Chuck Breaux received in a settlement with Dauterive Hospital, the third-party tortfeasor. For the following reasons, we affirm.

While in the course and scope of his employment with Doerle Food Service, Inc., (Doerle), on January 27, 1998, Mr. Breaux injured both of his knees. Dr. William Cenac, an orthopedic surgeon, performed immediate surgery on the right knee. After reaching maximum medical improvement on it, Dr. Cenac scheduled surgery for the left knee. On May 15, 1998, three hours after an unremarkable operation, a nurse at Dauterive Hospital, inadvertently, released Mr. Breaux’s leg before he was prepared to stand. All of his weight shifted to the newly operated knee, causing him to squat and tear all of the surgical repairs in it. On June 10, 1998, Dr. Cenac surgically repaired the damage. Three days later, Mr. Breaux developed a blood clot in his left leg, which required hospitalization for two weeks. One year later, Dr. Cenac performed, yet, another operation to remove the protruding metal wires from Mr. Breaux’s left knee.

Mr. Breaux filed suit against Dauterive Hospital for the nurse’s negligence. Doerle intervened for the compensation and medical expenses incurred and payable to Mr. Breaux due to the nurse’s negligence. With Doerle’s permission, Mr. Breaux settled his claim, against the hospital and the Louisiana Patient Compensation Fund, for a total of $430,000.00. The amount of intervention totaled $104,642.16.

Mr. Breaux and Doerle entered a joint stipulation in which they resolved all issues except whether the workers’ compensation insurer was entitled to a credit for future compensation obligations, including wages and medical expenses, when the amount, which Dauterive paid, exceeded that needed to reimburse the compensation carrier. The trial court heard the issue and ruled in Mr. Breaux’s favor. It ordered Doerle to pay all medical expenses, relating to the injuries that Mr. Breaux sustained in the January 27, 1998 accident, as well those relating to the injuries at Dauterive ^Hospital on May 15, 1998. It, also, refused to grant Doerle a credit for any payment of future medicals from the settlement which Mr. Breaux received from Dauterive Hospital. Doerle appeals.

STANDARD OP REVIEW

It is well settled that we may not set aside a trial court’s findings, absent manifest error. However, where one or more legal errors are present, the manifest error standard is no longer applicable. In that case, if the record is, otherwise, complete, we should make our own independent de novo review of the record.

Employer’s Future Obligations

Doerle contends that the trial court erred in refusing to grant it a credit for future compensation obligations, mainly, future medical benefits, where the settlement exceeded the amount of the intervention. La.R.S. 23:1103(A)(1), the applicable statute in the case at bar, provides:

In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer’s credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit.

|3(Emphasis added.)

Clearly, Doerle may recover the amount it paid, to Mr. Breaux, in workers’ compensation benefits, because of the incident that occurred at Dauterive Hospital. However, we must determine whether La. R.S. 23:1103 contemplated that the compensation obligation includes future medical benefits.

We look to two cases for guidance. First, in the fourth circuit’s decision in Strain v. Mitchell Mfg. Co., et al., which follows our supreme court ruling, the defendant in that case appealed the trial court’s ruling in the plaintiffs favor for damages sustained while attempting to fold a table. The intervenor sought modification of the award to provide credit for future workers’ compensation benefits that might be due. That court stated:

Under La.R.S. 23:1108 a compensation carrier is entitled to be reimbursed all it has actually paid out to the injured party as of the date the judgment becomes final. The excess of the award is paid to the injured party. Thereafter, the compensation carrier should be given a credit on all sums it may come to owe in the future to, or on behalf of, the injured party up to the extent of payment of the tort recovery to the injured party. Until this excess is exhausted, the carrier should be obligated to make no further compensation payments or medical benefits. After exhaustion of the excess, if further compensation payments or benefits should become due, the carrier should then become obligated to resume payments.
Mary argues that if the School Board is entitled to a credit for future medical payments due under the law then the jury award for future medical expenses should be reinstated. Cases subsequent to Billeaud [v. United States Fidelity & Guar. Co., 349 So.2d 1379 (La.App. 3rd Cir. 1977)] have refused to follow its holding as to medical benefits therefore, the School Board is not entitled to a credit for future medical expenses.
The Supreme Court ruled on this issue in Fontenot v. Hanover Ins. Co.[, 385 So.2d 238 (La.1980)] In Fontenot a worker’s compensation insurer sought reimbursement for medical expenses paid out of an employee’s judgment for damages for her pain and suffering. The Supreme Court wrote:
The underlying policy of the worker’s compensation statute provisions for apportionment of damages between employer and employee in suits against third persons merely prevents an employee’s double recovery for his 1 injuries; it does not require an employee to reimburse out of his award for pain and suffering medical expenses which he failed to recover from a third party tortfeasor.”

(Citations omitted.)

Moreover, in Brooks v. Chicóla, et al., our supreme court found that:

[R]eimbursement to the compensation insurer in this case must necessarily be limited only to the damage awards for loss of earnings and medical expenses. An injured worker, as any other tort victim, is entitled to his full recovery for non-economic losses. There should be no reduction in his award for the pain and suffering element simply to give a compensation insurer full reimbursement. As we stressed in Fontenot, the Louisiana Worker’s Compensation Law only requires reimbursement to the extent that damages for lost wages and medical expenses are recovered from a third party tortfeasor. No preference is granted to the compensation intervenor over the employee’s award for pain and suffering. In this way, the true purpose of the compensation law will be fulfilled. As we have frequently stated, the law must be given a liberal interpretation to effect its beneficent purpose of relieving workers of the economic burden of work-connected injuries by diffusing the cost in the channels of commerce. The above interpretative analysis of La. R.S. 23:1103 fulfills this methodology and purpose and is reflective of what we construe to be the legislative intent.

(Emphasis added. Citations omitted.) It continued:

It necessarily follows that credit for future compensation likewise must be limited to the award for future loss of earnings. To allow reimbursement and credit beyond this would reduce the injured worker’s recovery for non-economic losses. It would also be contrary to the liberal interpretation afforded the compensation act and the humanitarian spirit within which it was enacted.[]

Although Brooks has been legislatively overruled regarding another principle, it continues to stand for the premise that the workers’ compensation insurer is not entitled to a credit for future medical benefits, even when the amount, which the Lthird-party tortfeasor paid in settlement, exceeds that sufficient to reimburse the compensation carrier.

Moreover, had the Louisiana Legislature wanted to include future medical benefits as part of compensation obligations for which a credit is due, presumably, it would have done so when it amended that statute in 1997. We affirm the trial court’s judgment.

CONCLUSION

Doerle Food Service, Inc. appealed the trial court’s refusal to grant it a credit for any payment of future medical expenses from the money which Mr. Breaux received in a settlement with Dauterive Hospital. We affirm, finding that the trial court did not err.

AFFIRMED.

      . Rosell v. ESCO, 549 So.2d 840 (La.1989).

      . Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95); 650 So.2d 742, 747, rev’d in part, on other grounds, 96-3028 (La.7/1/97); 696 So.2d 569.

      . 534 So.2d 1385 (La.App. 4 Cir. 1988), writ denied 537 So.2d 1165 (La. 1989).

      . 514 So.2d 7, 13-14 (La. 1987).

      . Id. at 14.


author: ItDECUIR, Judge.

text:
    D & J TIRE, INC. v. BANK ONE, LOUISIANA, NATIONAL ASSOCIATION.
    No. 02-0935.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Writ Denied May 2, 2003.

      John W. Munsterman, Alexandria, LA, for D & J Tire, Inc.
    John C. Davidson, Mark F. Vilar, Fair-cloth, Davidson, Vilar & Elliott, L.L.C., Alexandria, LA, for Bank One, Louisiana, NA.
    David Joseph Boneno, Louisiana Bankers Association, Baton Rouge, LA, for Louisiana Bankers Association.
    Court composed of NED E. DOUCET, JR., Chief Judge, and OSWALD A. DECUIR and MARC T. AMY, Judges.
   ItDECUIR, Judge.

Bank One appeals a judgment of the trial court finding it liable to D & J Tire, Inc. for negligent misrepresentation arising out of an embezzlement scheme perpetrated by D & J’s employee, Henrietta Wilkinson. For the reasons that follow, we reverse.

FACTS

In 1998, D & J Tire Company, Inc. (D & J) hired Henrietta Wilkinson as a receptionist. In a matter of months she was promoted to credit manager. In that capacity she collected on NSF checks, made deposits, and carried out various other tasks related to accounts receivable.

In January 1999, shortly after Henrietta was promoted, D & J started to experience a strain on its cash flow. The comptroller, Mike Nelson, noticed that the level of redeposits of NSF checks was much higher than the level of collections and suspected Henrietta was taking cash from NSF checks. After contacting the bank for copies of the redeposited NSF checks, he could not find any evidence that Henrietta was taking cash.

On September 14, 1999, Bank One notified D & J that an alert teller had noticed that Henrietta submitted an altered deposit slip that did not match the carbon copy in D & J’s deposit book. The bank also presented several other altered deposit slips to D & J. The comptroller then realized what was causing the strain on cash.

Henrietta would take NSF checks and add them to the deposit. She would then change the dollar amount listed as cash for deposit by the amount of the added NSF checks and pocket the cash. Consequently, the amount deposited exactly matched the amount on the altered deposit slip submitted for deposit. It did not, however, match the deposit slip in D & J’s deposit book because Henrietta did not alter the carbon copy. Since deposit slips are not routinely returned with bank statements, D & J was | ¡¡not immediately aware of the problem and when D & J noticed the strain on cash, it requested copies of certain deposited items but not the deposit slips.

After Bank One uncovered the scheme, D & J filed suit against Bank One alleging that returning the deposit book with the unaltered carbon copies of the deposit slips constituted negligent mterepresentation. Bank One added Henrietta as a third party defendant since D & J had not filed suit against her. The trial court found in favor of D & J and apportioned fault 60% to Henrietta, 25% to Bank One and 15% to D & J Tire. The court found damages of $239,868.00 in theft losses and $1,500,824.00 in lost profits and entered judgment against Bank One in the amount of $435,127.50. Bank One lodged this appeal. D & J answered the appeal seeking an increase in the damage award against Bank One.

NEGLIGENT MISREPRESENTATION

Bank One first contends the trial court erred in finding it liable for negligent misrepresentation. We agree.

In Succession of McKnight, 33,802, p. 5-6 (La.App. 2 Cir. 10/4/00), 768 So.2d 794, 798, writ denied, 00-3072 (La.2/9/01), 785 So.2d 822, the court discussed negligent misrepresentation and said:

In general, the courts of this state have recognized that LSA C.C. arts. 2315 and 2316, the codal articles defining tort law, encompass an action for negligent misrepresentation. The broad language of Articles 2315 and 2316 affords protection for persons damaged by the negligent acts of others sufficient to encompass a cause of action for negligent misrepresentation. Daye v. General Motors Corp., et al, 97-1653 (La.9/9/98), 720 So.2d 654; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La.1993). Under Article 2315, “every act whatsoever of man that causes damage to another obliges him by whose fault it happened, to repair it.” In order to find a bank liable under Article 2315, it must first be determined that the bank owed a fiduciary duty to the plaintiff. Guidry v. Bank of LaPlace, 94-1758 (La.App. 4 Cir. 9/15/95), 661 So.2d 1052.
Appellate courts have integrated the cause of action for negligent misrepresentation and misinformation into the duty-risk, negligence analysis. Thus, for the cause of action to arise — whether plaintiff is a | ¡¡third party or a party to the contract or transaction — there must be a legal duty on the part of the defendant to supply correct information, there must be a breach of that duty, and the breach must have caused plaintiff damage. Daye v. General Motors Corp., supra; Barrie v. V.P. Exterminators, Inc., supra; Cagle v. Loyd, 617 So.2d 592 (La.App. 3d Cir.1993), writ denied, 620 So.2d 877 (La.1993).

In Greene v. Gulf Coast Bank, 593 So.2d 630 (La.1992), the court noted that no independent duty of care is imposed on a bank in the ordinary relationship between bank and depositor. Moreover for liability to attach for failure to disclose information, “there must exist a duty to speak or to disclose information.” Id. at 632. Finally, the legislature has decreed that banks shall not be deemed or implied to have fiduciary responsibilities toward customers or third parties, unless expressly set forth in a written agency or trust agreement. La.R.S. 6:1124.

Bank One contends that it had no duty to discover the theft by D & J’s employee and that it entered into no contractual fiduciary relationship with D & J. The trial court found that Bank One had an obligation to verify that the carbon copy of the deposit slip returned to D & J contained the same alterations as the original deposit slip. The trial court cited no statute creating this duty and we find none. Likewise, there is no evidence in the record that Bank One assumed this duty on behalf of D & J. Under these circumstances, the trial court erred in finding Bank One liable for negligent misrepresentation.

Our resolution of this assignment renders the remaining assignments raised by the parties moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed. All costs of these proceedings are taxed to D & J Tire Company, Inc.

REVERSED.