author: | BLANCHARD, Judge.

text:
    Edward TRENT, Jr., Individually and as Administrator of the Estate of His Minor Child, Brandon Williams, and Sandy Ann Jackson Trent, Individually v. PPG INDUSTRIES, INC., Olin Corporation, Arco Chemical Corporation, Lyondell Chemical Worldwide, Inc., and Auger Services, Inc.
    No. CA 03-1068.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Tina Louise Wilson, Esq., Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appellant, Edward Trent, Jr., individually & as admin, of the estate of Brandon Williams & Sandy Ann Jackson Trent, individually.
    William B. Monk, David L. Morgan, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant/Appellee, PPG Industries, Inc.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.
   | BLANCHARD, Judge.

Plaintiffs, Edward Trent, Jr., individually and as administrator of the estate of his minor child, Brandon Williams, and Sandy Ann Jackson Trent, individually appeal a judgment of the trial court granting Summary Judgment in favor of Defendant, PPG Industries, Incorporated (PPG), finding PPG to be the statutory employer of Edward Trent, Jr. and dismissing Plaintiffs’ suit in tort against PPG. We affirm the judgment of the trial court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

The facts and the proceedings in the trial court are set out in the trial court’s written reasons for judgment. Although those reasons only address the claim of Edward Trent, Jr., that he should not be considered a statutory employee of PPG, the Plaintiffs in the consolidated cases all made identical claims. Thus, the written reasons, which we quote below, apply to all the Plaintiffs in all the cases:

WRITTEN REASONS FOR JUDGMENT
This matter is before the Court on Motion for Summary Judgment. On May 30, 2002, the defendant, PPG, filed this Motion for Summary Judgment. A hearing on the matter was held on July 26, 2002. At the conclusion of the hearing, the court gave the parties sixty days to present any additional evidence on the matter, including taking the depositions of PPG’s affiants. Thereafter, the parties indicated that no new evidence would be introduced and the matter was then taken under advisement.
On or about October 29,1998 PPG and Ron Williams Construction Company (Ron Williams) executed a contract whereby Ron Williams agreed to install the foundation and structural steel for PPG in their construction of the Arco/Biolab Pipe Lines (“Pipeline”). Construction of the Pipeline began in December 1998. The plaintiff, Edward Trent, in this suit was a laborer employed directly by Ron Williams. Plaintiff claims that while in the course and scope of his employment with Ron Williams performing work on the Pipeline he was exposed to toxic fumes and vapors, specifically during late December 1998 and early January 1999. The plaintiff brought this suit to recover damages he allegedly suffered as a result of this exposure. PPG now brings this Motion for Summary Judgment on the basis that PPG was plaintiffs statutory employer and plaintiffs exclusive remedy against PPG is Lin Worker’s Compensation pursuant to the contract of October 29, 1998. The plaintiff asserts that PPG is not his statutory employer under the relevant statute and caselaw and further that the contract is questionable as to its validity.
The instant situation is governed by La R.S. 23:1061 as follows:
A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This 1 .^resumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.
An addendum to the General Terms and Conditions for Construction Services which is incorporated by reference into the contract dated October 29, 1998 declares that a statutory, employer relationship will exist between PPG and employee of Ron Williams. Under Subsection A(3) of this statute, PPG is presumed to be the statutory employer of the plaintiff because there is a written contract between PPG and Ron Williams which recognizes this relationship. The plaintiff has asserted that this contract is invalid and further that the work done by Ron Williams is not an integral part of or essential to the ability of PPG to generate goods, products or services.
The plaintiff seeks to have this court declare the contract between PPG and Ron Williams invalid at least as to the provision concerning the statutory employer relationship. The basis of this request is that the format of the addendum is inconsistent with the remainder of the contract. The noted inconsistencies concern page numbering, font style and the title of the portion as an “Addendum to PPG Industries, Inc.’s General Terms and Conditions and Purchase Order Terms of Agreement, Dated August 14,1998”.
Generally the court may only look to the “four comers” of contract to construe the result of the contract. The court may only look to extrinsic evidence when there is an ambiguity in the language of the contract.
A contract has the effect of laws between the parties. La.Civ.Code art. 1983. Courts are bound to enforce the contract as written. If the words of a contract are clear, explicit, and lead to no absurd results, it must be interpreted by reference to the “four comers” of the document and no further interpretation can occur in search of the parties’ intent. La.Civ.Code art. 2046; Whether the words of a contract are “clear and explicit” , or ambiguous is a question of law. Therefore, the appellate review of such a legal question is constrained to a determination of whether the trial court’s interpretation is legally correct or incorrect. (Citations Omitted)
Hebert v. Insurance Center. Inc., 1997-298 La.App. 3 Cir. 1/7/98, 706 So.2d 1007.
|4The ambiguity in this case is whether the parties intended the addendum to be a part of the contract. The title of the addendum is not clear and explicit and therefore the court must ascertain the common intent of the parties. La. Civ. Code art.2045. In this case, the parties to the contract, PPG and Ron Williams, have stated via affidavit that the statutory employer provisions contained in the addendum have always been a part of the contract incorporated by reference through the general terms and conditions; incorporation of this provision was contemplated by the parties and was their intent. The plaintiff has not provided the court with any evidence that establishes a genuine issue of fact concerning the intent of the parties to this contract. Because the common intent of the parties is determinative of the interpretation of the contract and no issue of fact is present as to the intent of these parties, this court finds that the statutory employer provision is a valid part of the contract between PPG and Ron Williams.
According to the statute once a valid written contract is in place, a rebuttable presumption is created that a statutory 'employer relationship exists. The plaintiff must rebut this presumption with evidence that the work of Ron Williams is not an integral part of or essential to the ability of PPG to generate goods, products or services. Plaintiff asserts that construction of plant facilities is not part of the trade or business of PPG and therefore, the work done by Ron Williams is not an integral part of or essential to the ability of PPG to generate goods, products or services.
The key to this issue is whether or not the work done by Ron Williams is considered part of PPG’s trade, business or occupation. This must be the case in order for the statutory employer relationship to exist. This requirement is defined by the last sentence of La. R.S. 23:1032(Á)(1) which was added by amendment in 1997.
For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
This sentence defines a term previously left to judicial interpretation. Only one reported court decision has applied this statute in its new amended form, Applegarth v. Transamerican Refining, 00-1547 La.App. 5 Cir. 2/28/01, 781 So.2d 804. The facts of Applegarth are almost identical to those of the instant case. The defendant, a refining company, moved for summary judgment based on the fact that he was the statutory employer of the plaintiff. The plaintiff, a laborer employed by a contractor, countered with the fact that his direct employer was in the business of construction and the defendant was not and therefore the presumption is rebutted under the statute. The court stated that the new construction of retaining walls and pipe racks for a pipeline are essential to the ability of the refinery to generate its goods, products or services and thus the plaintiff has failed to rebut the presumption. | sThe trial court rejected this argument and granted the summary judgment, the court of appeal affirmed.
This court finds that the installation of the foundation and structural steel for a pipeline is essential to the ability of PPG to generate its goods, products or services and thus the plaintiff has failed to rebut the presumption established by the written contract. The plaintiff is the statutory employee of the defendant, PPG.
Conclusions
1. The written contract between PPG and Ron Williams, including the provisions for statutory employer, is valid.
2. Ron Williams’ work for PPG constitutes an integral part of or essential to the ability of the PPG to generate goods, products, or services.
Therefore, the Motion for Summary Judgment is granted.

LAW AND DISCUSSION

In Miller v. Martin, 02-670, p. 5 (La.1/28/03) 838 So.2d 761, 764, our supreme court reiterated the standard applicable to appellate review of cases decided by summary judgment stating:

Appellate review of the granting of a motion for summary judgment is de novo. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A court may grant summary judgment that is “dispositive of a particular issue, theory of recovery, cause of action or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.” La. C.C.P. art. 966(E).

In Maddox v. Superior Steel, 00-1539, pp. 3-4 (La.App. 1 Cir. 9/28/01), 814 So.2d 569, 571-72 (footnote omitted), our brethren of the first circuit, facing a similar situation as we face in this case, stated:

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966 B. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. Code Civ. P. art. 966 A(2).
The burden of proof on a motion for summary judgment is set forth in La. Code Civ. P. art. 966 C(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.
The initial burden of proof remains with the mover and is not shifted to the non-moving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the non-moving party “submit evidence showing the existence of specific facts establishing a genuine issue of material fact.” See Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-1192, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La.Code Civ. P. arts. 966 and 967.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.
Louisiana Revised Statute 23:1031 provides for workers’ compensation benefits to an employee who is injured by an accident “arising out of’ and “in the course of’ his employment. Smith v. Continental Casualty Company, 98-2896, p. 3 (La.App. 1 Cir. 2/18/00), 752 So.2d 381, 383, writ denied, 2000-0789 (La.4/28/00), 760 So.2d 1183.
Under certain circumstances, an owner or principal can be held liable to pay workers’ compensation to an employee of a contractor he engages. These circumstances are set forth in La. R.S. 23:1061. However, under such circumstances, workers’ compensation is the exclusive remedy of the contractor’s employee held to be a statutory employee of the principal, and the principal is immune from tort liability. La. R.S. 23:1032. The determination of statutory employer status is a question of law for the court to decide. Lemaire v. CIBA-GEIGY Corporation, 99-1809, p. 11 (La.App. 1 Cir. 6/22/01), 793 So.2d 336, 346.

On appeal, Appellant’s argue that there are two issues of material fact that preclude the issue of summary judgment: (1) construction of the contract, and (2) the trial court’s finding that building a pipe rack/pipe line was part of the Defendant’s business.

On appeal, as it did at trial, Plaintiff seeks to have this court declare that the contract between RWC and PPG does not contain the requisite language granting PPG statutory employer status. Plaintiff argues that the addendum, which includes the required language, was not part of the original contract and was never intended to be part of the contract. Plaintiff points out the following to support his argument: it is not numbered sequentially, it is of a different font from the remainder of the contract, and it appears after several exhibits.

An addendum is something which is added, such as a section of added material. See Black’s Law Dictionary 35 (5th ed.1979). Thus, by its very nature, it would neither be numbered sequentially nor, necessarily, appear before other attachments to a contract. As to the font used in the addendum, “Louisiana jurisprudence has favored the typewritten provisions of a contract over a printed provision of a contract when there is a conflict between the two.” Poissenot v. Guildcraft Homes, Inc., 394 So.2d 660, 661 (La.App. 1 Cir.1980), citing Executive House Bldg., Inc. v. Optimum Systems Inc., 311 So.2d 604 (La.App. 4th Cir.), cert. denied 313 So.2d 847 (La.1975). Although we find no conflict between the [^contract and the addendum, the fact that the font in the original contract and that of the addendum is different would make us more inclined to give more weight to the addendum.

Additionally, it is black letter law that “[t]he judiciary’s role in interpreting ... contracts is to ascertain the common intent of the parties to the contract. See La.Civ.Code art.2045; Carbon [v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439] ...; Louisiana Ins. [Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763].” Cadwallader v. Allstate Ins. Co., 02-1637, p. 5 (La.6/27/03), 848 So.2d 577, 580. Generally, the court looks to the four corner of the contract to ascertain its intent. However,

When the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed ...” parol evidence is admissible to clarify the ambiguity and show the intention of the parties. Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087, 1089 (La.1981); Security Center Protection Services, Inc. v. Lafayette Sec. & Electronic Systems, Inc., 95-CA-693 (La.App. 5th Cir.1/17/96), 668 So.2d 1156, 1159-1160; Peyton Place, Condominium Ass’n, Inc. v. Guastella, 95-396 (La.App. 5th Cir.1/17/96), 668 So.2d 1174, 1178.

J. Caldarera & Co. v. Louisiana Stadium and Exposition Dist., 98-294, p. 5 (La.App. 5 Cir. 12/16/98), 725 So.2d 549, 551 (emphasis added).

In the case sub judice, PPG included, with its motion for summary judgment, the affidavits of Brandt Smith, the Chief Operating Officer of RWC, and that of Richard P. Andersen, the Manager of Purchasing for Defendant, PPG. Both men professed intimate familiarity with the contract between their respective companies and both agreed that the addendum adding the statutory employer provisions to the contract between the parties was meant to be part of the contract and reflected the true intent of the parties.

In response to PPG’s motion and exhibits, Plaintiff submitted no evidence showing the existence of specific facts which would establish a genuine issue of material fact.

| ^Accordingly, we find this argument to be without merit.

As to the second issue, we find Appellant’s argument that the construction work being undertaken by Ron Williams Construction (RWC) was not part of Defendant’s business also to be without merit. This argument would have been more forceful under La.R.S. 23:1061 before it was amended in 1997, however as the trial court pointed out the last sentence of section (A)(1) of the amended statute states:

For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.

Additionally, section (A)(3)(emphasis added) provides as follows:

Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship be-tiveen the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.

According to the affidavit of Joseph Ot-tenweller, the Project Engineer for PPG, the construction undertaken by RWC was in connection with the building of a pipeline connecting PPG to several neighboring industrial plants, including that of Defendant, Lyondell Chemical Company (successor to Lyondell Chemical Worldwide, Inc. and ARCO Chemical Company) and Biolab, Inc. The purpose of said pipeline was to allow PPG to sell products produced at its plant to the several companies connected by the pipeline.

Plaintiff, in the case sub judice, was working on a pipeline which would facilitate the sale of PPG’s products to its nearby customers. The sale of its products was essential | into PPG’s business and was, without a doubt an essential part of its trade and integrally related to PPG’s business. Thus, we find, as did the trial court, that Plaintiff failed to bring forth any evidence which would rebut the presumption that he was a statutory employee of PPG.

Accordingly, for the reasons stated above, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Appellants.

AFFIRMED.


source: Caselaw Access Project

author: PLANCHARD, Judge.

license: Public Domain

text:
    Elbert Wilson REED, Sr., and Jeraldine Reed v. PPG INDUSTRIES, INC., Olin Corporation, Arco Chemical Corporation, Lyondell Chemical Worldwide, Inc., and Auger Services, Inc.
    No. CA 03-1069.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.
    Tina Louise Wilson, Esq., Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appellant, Edward Trent, Jr., individually & as admin, of the estate of Brandon Williams & Sandy Ann Jackson Trent, individually.
    William B. Monk, David L. Morgan, Stoekwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant/Appellee, PPG Industries, Inc.

      Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.
   PLANCHARD, Judge.

For the reasons set forth in the companion case hereto, Trent, et al. v. PPG Indus., Inc., et al., 03-1068 (La.App. 3 Cir. 2/4/2004), 865 So.2d 1041, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by the Appellants.

AFFIRMED.


text:
    Darvin RAMIREZ v. PPG INDUSTRIES, INC., Olin Corporation, Arco Chemical Corporation, Lyondell Chemical Worldwide, Inc., and Auger Srevices, Inc.
    No. CA 03-1070.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.
    Tina Louise Wilson, Esq., Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appellant, Edward Trent, Jr., individually & as admin, of the estate of Brandon Williams & Sandy Ann Jackson Trent, individually.
    William B. Monk, David L. Morgan, Stockwell, Sievert, Viecellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant/Appellee, PPG Industries, Inc.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.
   PLANCHARD, Judge.

For the reasons set forth in the companion case hereto, Trent, et al. v. PPG Indus., Inc., et al., 03-1068 (La.App. 3 Cir. 2/4/2004), 865 So.2d 1041, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by the Appellant.

AFFIRMED.


text:
    Shannon REED v. PPG INDUSTRIES, INC., Olin Corporation, Arco Chemical Corporation, Lyondell Chemical Worldwide, Inc., and Auger Srevices, Inc.
    No. CA 03-1071.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.
    Tina Louise Wilson, Esq., Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appellant Edward Trent, Jr., individually & as admin, of the estate of Brandon Williams & Sandy Ann Jackson Trent, individually.
    William B. Monk, David L. Morgan, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant/Appellee PPG Industries, Inc.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.
   PLANCHARD, Judge.

For the reasons set forth in the companion case hereto, Trent, et al. v. PPG Indus., Inc., et al., 03-1068 (La.App. 3 Cir. 2/4/2004), 865 So.2d 1041, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by the Appellant.

AFFIRMED.


text:
    Angelo HONORE v. PPG INDUSTRIES, INC., Olin Corporation, Arco Chemical Corporation, Lyondell Chemical Worldwide, Inc., and Auger Srevices, Inc.
    No. CA 03-1072.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.
    Tina Louise Wilson, Esq., Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appellant, Edward Trent, Jr., individually & as admin, of the estate of Brandon Williams & Sandy Ann Jackson Trent, individually.
    William B. Monk, David L. Morgan, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant/Appellee, PPG Industries, Inc.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.
   PLANCHARD, Judge.

For the reasons set forth in the companion case hereto, Trent, et al. v. PPG Indus., Inc., et al., 03-1068 (La.App. 3 Cir. 2/4/2004), 865 So.2d 1041, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by the Appellant.

AFFIRMED.


author: LPICKETT, Judge.

text:
    Tammy SPELL v. BAKER FOUNDATION.
    No. WCA 03-1086.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Janice B. Unland, Brian W. Harrell, Ra-balais, Unland & Lorio, Covington, LA, for Defendant/Appellee, Baker Foundation.
    Richard E. Smith, Glenn Armentor Law Corporation, Lafayette, LA, for Plain-tiffiAppellant, Tammy Spell.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.

       Judge Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge pro tem-pore.

   LPICKETT, Judge.

FACTS

Tammy Spell began working for Johnny and Alta Baker at Safe Haven Enterprises/Sollay Baker Foundation (Baker) in November, 1999. On July 25, 2000, while working in the course and scope of her employment, Tammy was involved in a motor vehicle accident. As a result, she sustained numerous personal injuries. After the accident, Tammy began receiving weekly workers’ compensation benefits in the amount of $233.34, which was based on an average weekly wage of $350.00. On March 12, 2002, Tammy filed a Disputed Claim for Compensation wherein she alleges that the employer/insurer improperly calculated her average weekly wage and as a result, underpaid the amount of temporary total indemnity benefits. She further claimed that as a result of the improper calculation and underpayment of benefits, she was entitled to back pay, attorney fees, and penalties for their arbitrary and capricious behavior.

The parties were unable to resolve the matter through mediation, therefore, the matter proceeded to trial. A trial on the merits was held on February 6, 2003. The only issue litigated was the calculation of Tammy’s average weekly wage. Tammy claimed that she was to be paid a net pay of $350.00 per week, based upon a gross pay of $500.00 per week. Her employer claimed that Tammy’s average weekly wage was $350.00 per week. After reviewing the pleadings, hearing the testimony of witnesses and argument of counsel, the workers’ compensation judge ruled in favor of the employer, Safe Haven Enterprises/Sollay Baker Foundation. The workers’ compensation judge found that the average weekly wage, as currently calculated at $350.00 per week, was correct. The workers’ compensation judge further ruled that neither the employer nor the insurer was guilty of any |3arbitrary or capricious behavior regarding the calculation of the average weekly wage and denied Tammy’s claim for penalties and attorney’s fees. It is from this judgment that the claimant appeals.

ASSIGNMENTS OF ERROR

1. The trial court committed manifest error and was clearly wrong in admitting into evidence defendant’s Exhibit “D-l.”
2. The trial court committed manifest error and was clearly wrong in admitting defendant’s Exhibit “D-2.”
3. The trial court committed manifest error and was clearly wrong in admitting defendant’s Exhibit “D-3.”
4. The trial court committed manifest error and was clearly wrong in finding in favor of defendant as its decision was against the great weight of evidence.

DISCUSSION

In claimant’s first three assignments of error, she contends that the workers’ compensation judge committed manifest error and abused it’s discretion in admitting exhibits D-l, D-2, and D-3. We will discuss the claimant’s first three assignments of error together as she basically contends that the workers’ compensation judge erred in admitting evidence that the defendant did not provide during the pretrial discovery process.

Louisiana Revised Statute 23:1317 provides guidance in workers’ compensation proceedings. That statute provides, in pertinent part:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be. (emphasis ours)

| ¿Accordingly, the supreme court noted in Chaisson v. Cajun Bag & Supply Co., 97-1225, pp. 9-10 (La.3/4/98), 708 So.2d 375, 381:

LSA-RS 23:1317 mandates that the hearing office’s factual findings be based on “competent evidence.” This legislative mandate is necessary because under the express language of LSA-RS 23:1317, worker’s compensation hearing officers are “not bound by the technical rules of evidence.” Id. In other words, the hearing officer has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. This more relaxed standard for the admissibility of evidence is the general rule in proceedings before administrative agencies. MCCORMICK ON EVIDENCE § 352 (4th ed.1992). The legislative requirement that a hearing officer’s factual findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Therefore, when a reviewing court evaluates the factual findings of a hearing officer under the manifest error standard, it must determine whether the factual findings are reasonable and supported by competent evidence in the record. Although the Legislature has not defined “competent evidence,” in order to give the relaxed evidentiary standard in LSA-RS 23:1317 effect, it must not be defined so narrowly as to mean only evidence that would fall within the parameters of the Louisiana Code of Evidence. If the hearing officer’s factual findings are reasonably supported by competent evidence, then the reviewing court must affirm them.

In Chaisson 708 So.2d at 382, the supreme court also noted, in pertinent part:

Although the lower courts in Louisiana have generally recognized the admissibility of hearsay evidence in worker’s compensation proceedings, there has been some confusion as to the weight it should be given, if any, by the hearing officer and by the reviewing court. See Louisiana Hosp. Ass’n Workmen’s Comp. Group Self Ins. Fund v. Auguillard, 503 So.2d 1118, 1119 (La.App. 3 Cir.1987) (“While the state of the law on this issue is unsatisfactory, recent decisions indicate that the mere fact that proffered evidence is hearsay is not sufficient grounds to exclude it in a worker’s compensation case.”). The Third Circuit has fashioned a somewhat more liberal standard, also finding that hearsay evidence, within discretionary limits, is admissible, but recognizing that the hearing officer is capable of determining the weight to be afforded such testimony. Johnson v. Cajun Enterprises, 293 So.2d 617, 623 (La.App. 3 Cir.1974).

In the instant case, the claimant contends that the workers’ compensation judge erred in admitting a paycheck made out to Tammy Spell that was dated November 12, 1999 (“D-l”), the vendor’s log of Loretta Spell (“D-2”), and the vendor’s log of Tammy Spell (“D-3”).

D-l, Paycheck dated November 12, 1999

When the defendant attempted to introduce the check dated November 12, 1999 at trial, the claimant objected on the following grounds:

Endorsed by Tammy Spell, although that’s on a separate — let me be more clear. On Exhibit — Defense Exhibit Number 1, this purports to be a check Number 22243, the amount of Three Hundred and Fifty Dollars, made out to cash, signed by Cennea — Cennea Gui-dry. And on the same page is the Xeroxed back of this or some other check that purports to have Tammy Spell’s endorsement on the back of it. The back of the check, far as I can tell, you can’t — there’s no way to tell whether or not the back of the check is associated or goes with the front of the check. Now, that’s the first objection.
The second objection is that I specifically asked for that information in Request for Production Number 22, that says “Produce copies of any paychecks, pay stubs, or any other documents, memo-randa pertaining to items that reflect the hours worked or wages or salary received by Tammy Spell during the period of employment with the employer,” and that information was not provided to us before trial today.

The trial court noted the claimant’s objection, but admitted the check over claimant’s objection, and directed that the trial move on.

D-2 and D-3, Loretta Spell’s and Tammy Spell’s Vendor’s Log

Loretta Spell, Tammy’s aunt by marriage, was also employed by the defendant as a bookkeeper. Loretta’s and Tammy’s vendor’s logs were generated two days prior to trial. Loretta did not affirmatively identify her vendor log at trial and she testified that she never saw it prior to trial. The claimant objected to the | fiadmission of both vendor’s logs as rank hearsay on the ground that; neither was signed, no one verified them, no foundation was laid for them, they did not refer to anyone, they were not dated to identify when they were compiled, and they were not provided to the claimant prior to trial. Loretta testified that she had conversations with Alta Baker about the amount of compensation she and Tammy would be paid. She stated that she knew that Tammy was not on the payroll and that taxes were not being deducted from her check.

In reviewing the testimony, we do not find that the workers’ compensation judge abused his vast discretion by admitting the evidence in question. Although the check in question was made out to cash, Tammy testified that she received several checks in that manner and it did have the claimant’s signature on the back. Furthermore, the claimant testified on numerous occasions throughout the course of the trial that she was paid $350.00 per week. In addition, several defense witnesses testified including, Alta Baker, the owner of Baker Foundation and Patricia K. McNeely, the General Manager of Safe Haven Enterprises, that Tammy Spell was paid $350.00 per week. Accordingly, these assignments of error are without merit.

In her fourth assignment of error, the claimant argues that the trial court committed manifest error and was clearly wrong in finding in favor of the defendants against the great weight of the evidence.

“Whether a workers’ compensation claimant has satisfied his burden of proof on the work-related issue is a factual one and is susceptible to the manifest error standard of review.” Bryant v. Justiss Oil Co., 01-832 p. 5 (La.App. 3 Cir. 12/12/01), 801 So.2d 659, 663 citing Winch v. Double M, Inc., 99-1793 (La.App. 3 Cir. 4/5/00), 764 So.2d 1055, writ denied, 00-1271 (La.6/16/00), 765 So.2d 339. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Stobart v. State, Through Dept. of Transp. Dev., 617 So.2d 880 (La.1993).

Calculation of Average Weekly Wage

Louisiana Revised Statute 23:1021 provides in part:

(10) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(b) Monthly wages. If the employee is paid on a monthly basis, his monthly salary multiplied by twelve then divided by fifty-two.

During the course of the trial of this matter, Tammy testified numerous times that other than the two checks that she received for Four Hundred and Fifty Dollars from an account that did not say Baker Foundation, every other check that she received was for Three Hundred and Fifty Dollars.

Upon reviewing the record in its entirety, the facts clearly show that the claimant was paid Three Hundred Fifty ($350.00) Dollars per week. Furthermore, the claimant failed to present any evidence that she was ever paid $500.00. We find, therefore, that the workers’ compensation judge did not err in finding that the claimant’s average weekly wage was correctly calculated at $350.00 per week, and that the claimant’s corresponding workers’ compensation rate, of $233.34, was correctly calculated. This assignment of error is without merit.

DECREE

The judgment of the workers’ compensation judge is affirmed in all respects. Costs of this appeal are cast against the appellant.

AFFIRMED.


author: ^PICKETT, Judge.

text:
    CITY OF JENNINGS v. Mary Lou DOUCET.
    No. 03-1099.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for Defendant Appellant, Mary Lou Doucet.
    Lisa Eve Mayer, Borne, Wilkes & Brady, LLP, Lafayette, LA, for Plaintiff Ap-pellee, City of Jennings.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.

       Judge Arthur J. Planchard, Retired participated in this decision by appointment of the ' Louisiana Supreme Court as Judge Pro Tem-pore.

   ^PICKETT, Judge.

FACTS

Mary Lou Doucet was injured in December 1993 or January 1994 while in the course and scope of her employment as a police officer for the City of Jennings.

The current dispute arose when the City filed a disputed claim for compensation alleging that Doucet had failed to cooperate with court ordered vocational rehabilitation. The. WCJ appointed Thomas Bott to work with Doucet on August 20, 1998. Bott had two meetings with Doucet. Thereafter, he never met with Doucet again but did meet with her treating physician, Dr. Olga Reaville. Bott attempted to have Doucet complete a functional capacity evaluation (FCE) which was prescribed by Dr. Bramlett, the claimant’s treating psychiatrist. The FCE was scheduled on three separate occasions but was never performed because, upon advice of counsel, Doucet refused to submit to an FCE unless it was performed at her choice of facilities. In November, 2001, Dr. Bram-lett determined he could outline Doucet’s capabilities without the FCE.

Using the guidelines outlined by Dr. Bramlett, Bott attempted to find suitable employment for Doucet in the Lake Charles area. On February 27, 2002, he presented the job descriptions to Dr. Bramlett who approved some of the jobs and rejected others. At this time, however, Doucet was hospitalized because she had attempted suicide and was unable to work.

On March 21, 2002, Bott sent a letter to Doucet with a list of the jobs and their descriptions, instructions on how to proceed, and an offer to help her locate a suitable job. On March 27, 2002, Bott again met with Dr. Bramlett with a different set of jobs that were then available. Dr. Bramlett approved one, rejected three, and required ^additional information on two others. Dr. Reaville disapproved all of the jobs presented with the exception of one, which had been rejected by Dr. Bram-lett. Bott later discovered the claimant had actually applied for three of the positions but moved to Washington before knowing whether she would be hired.

After a trial on the merits, the worker’s compensation judge (WCJ) determined the issue regarding the failure to cooperate with the vocational rehabilitation counselor was moot. Further, she found Doucet capable of working 20 hours a week at minimum wage and reduced her benefits accordingly. This appeal followed.

ASSIGNMENTS OF ERROR

Mary Lou Doucet appeals, alleging one assignment of error:

1)The hearing officer erred in reducing Ms. Doucet’s weekly compensation benefits.

Answering the appeal, the City of Jennings alleges four assignments of error:

1) That the trial court failed to reduce plaintiffs benefits by 50% for failing to cooperate with vocational rehabilitation efforts.
2) That the trial court failed to find that the claimant was capable of working at least thirty hours per week.
3) That the trial court failed to state the dollar amount of wages the claimant was capable of earning.
4) That the trial court was incorrect in assessing the costs to be paid by employer/appellee, the City of Jeannings.

DISCUSSION

We will first address the City’s first assignment of error wherein they argue the WCJ erred by not reducing the claimant’s benefits by 50% for her failure to cooperate with the vocational rehabilitation efforts.

Louisiana Revised Statute 23:1226(E) states in pertinent part (emphasis added):

|sRefusal to accept rehabilitation as deemed necessary by the workers’ compensation judge shall result in a fifty percent reduction in weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), for each week of the period of refusal.

This statute is penal in nature and penal statutes are strictly construed. Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836 So.2d 14.

The basis of this complaint is Doucet’s refusal to submit to an FCE. She refused on the advise of her attorney, claiming she had the right to choose the facility which would perform the FCE.

Following the trial the WCJ found the following facts: 1) The claimant had been previously ordered to comply with vocational rehabilitation counseling with Thomas Bott; 2) the claimant’s treating psychiatrist, Dr. Bramlett, issued a prescription for the FCE which was set up to be performed at the Fontana Center; 3) The FCE was never performed as the claimant did not attend. The WCJ further found, and concluded, that Dr. Bramlett was able to issue work restrictions without the FCE and, therefore, the FCE was not needed.

Louisiana Revised Statute 23:1226(E) only provides penalties for refusing to accept rehabilitation “as deemed necessary by the workers’ compensation judge.” Since the WCJ concluded the FCE was not “necessary,” she declined to impose the penalty. We find no error in her conclusion on her denial of the employer’s request for imposition of the penalty provided in 23:1226(E). This assignment of error is without merit.

Doueet’s assignment of error and the City’s second and third assignments of error will be discussed together as they are interrelated.

|4Poucet argues the WCJ erred in finding she was capable of returning to work part time and reducing her benefits accordingly. The City argues, to the contrary, that the WCJ erred by not finding the claimant capable of working thirty hours a week, and at a rate higher than minimum wage. These issues involve factual findings subject to reversal only if we find the WCJ was clearly wrong or manifestly erroneous. Smith v. La. Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129.

[ A]n employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region:
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.

Banks v. Indus. Roofing and Sheet Metal Works, Inc., 96-2840, p. 10-11 (La.7/1/97), 696 So.2d 551, 557.

There is ample evidence that while not all of the jobs found by Bott were suitable for Doucet, some of them were. Doucet argues that none of the jobs were approved by all of her physicians. Physi-dan approval, however, is not required for the employer to meet its burden under Banks. Wiley v. Grand Casino Avoyelles, 98-1468 (La.App. 3 Cir. 4/21/99) 731 So.2d 518, writ denied, 00-2032 (La.11/5/99), 750 So.2d 180. We note Dr. Reaville objected to some of the positions because they were too low-paying. Further supporting the WCJ’s determination is the fact that Dou-cet was able to attend classes at McNeese, which supported the conclusion she was capable of some activity. This assignment of error lacks merit.

The finding that Doucet was only capable of working twenty hours per week is also supported by the record. Dr. Bram-lett suggested she start working only twenty hours but left open the possibility she might be capable of more. Considering the extent of Doucet’s injuries and the pain caused by them, the medication she had to take, and her fragile mental state, twenty hours per week is reasonable. This finding by the WCJ will not be disturbed.

We do find, however, the WCJ erred in finding minimum wage should be the basis for the reduction. None of the jobs submitted paid less than $5.50 per hour. Accordingly, the WCJ’s judgment is hereby amended to reflect the claimant is capable of working twenty hours per week, at the rate of $5.50 per hour.

The City argues in its fourth assignment of error that they should not have been assessed all of the court costs since they prevailed on the issue pertaining to Doucet’s ability to return to work. The City did not prevail, however, on the issue which initiated the complaint, the failure to cooperate with rehabilitation. “The trial court has broad discretion in the determination and awarding of ... court costs ...” Sharbono v. H & S Const. Co., 478 So.2d 779, 789 (La.App. 3 Cir.1985). Given the broad discretion afforded the WCJ, this finding will not be disturbed.

| «CONCLUSION

The judgment of the workers’ compensation judge is affirmed in all respects except as to the claimant’s potential wage which is amended to $5.50 per hour.

AFFIRMED AS AMENDED.


author: JjPICKETT, Judge.

text:
    Keith A. LOWERY, et ux. v. SAFEWAY INS. CO. OF LOUISIANA, et al.
    No. 03-1456.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Thomas Overton Wells, Attorney at Law, Alexandria, LA, for Plaintiff Appel-lee, Keith A. Lowery, Sandra Lowery.

      Ray F. Lucas III, Joana Ortego La-Bruyere, Borne, Wilkes & Brady, Lafayette, LA, for Defendant Appellant, Safeway Ins. Co. of Louisiana, Jennifer B. Lewis.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT and ARTHUR J. PLANCHARD, Judges.

       Judge Arthur J. Planchard, Retired participated in this decision by appointment of the Louisiana Supreme Court as Judge pro tem-pore.

   JjPICKETT, Judge.

FACTS

On February 9, 2002, a vehicle being driven by Keith Lowery was involved in an accident with a vehicle being operated by Jennifer Lewis. Lowery’s wife, Sandra, and his two minor daughters, Sankeitha and Iniki, were passengers in his vehicle. The Lewis vehicle was insured by Safeway Insurance Company. Lowery and his wife, individually and on behalf of their minor daughters, filed suit against Lewis and Safeway.

A bench trial was held on April 24, 2003. ■The parties stipulated that Lewis was solely liable for the accident. As part of the stipulation, Lewis was dismissed from the suit. The only issue before the court was damages. The court issued written reasons for judgment on April 30, 2003. Keith Lowery was awarded the following damages:

Lost wages $ 132.00
Rental expenses $1,344.20
Sales tax expenses $1,234.00
General damages $4,500.00

The court awarded Sandra Lowery, on behalf of Sankeitha, medical expenses in the amount of $870.00 and general damages in the amount of $4,500.00.

The court awarded Sandra Lowery, on behalf of Iniki, medical expenses in the amount of $712.60 and general damages in the amount of $3,500.00.

The court awarded Sandra Lowery $1,888.30 for medical expenses and $7,500.00 for general damages.

It is from this judgment that Safeway appeals.

| ¡ASSIGNMENTS OF ERROR

Safeway alleges six assignments of error:

1) The trial court committed legal error in awarding $1,234.00 for the taxes paid by Keith A. Lowery on the total loss sustained to his vehicle.
2) The trial court erred in awarding $1,344.20 as reimbursement for a rental car.
3) The trial court erred in awarding general damages in the amount of $2,000.00 to Keith A. Lowery.
4) The trial court erred in awarding $4,500.00 in general damages to Sankei-tha Lowery.
5) The trial court erred in awarding $3,500.00 in general damages to Iniki Lowery.
6) The trial court erred in awarding $7,500.00 to Sandra Lowery.

DISCUSSION

In the first assignment of error, Safeway argues the trial court erred by awarding sales tax paid by Keith Lowery on the vehicle he purchased to replace the vehicle which was a total loss as a result of the accident.

The value of the Lowery vehicle that was completely destroyed in the accident as a result of the fault of Safeway’s insured was $5,928.00. Lowery purchased a replacement vehicle for $18,475.00 and paid sales taxes in the amount of $1,234.00 on the vehicle. The trial court awarded the full amount of sales taxes paid. Safeway argues this results in a windfall for Lowery and the amount of sales taxes should be reduced to the sales taxes that would be due on a vehicle that had the same value as the vehicle that was destroyed, or 8% of $5,928.00, which is $474.24.

The legislature, by Acts 2001, No. 478, amended La.Civ.Code art. 2815 to include the final sentence (emphasis added):

|SA. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.

The purpose of the tort statute is to place the injured person back in the position he was in before the tort. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70. When a tort victim incurs costs to repair a vehicle or must replace that vehicle, the victim should not be required to bear the costs of sales taxes that must be paid to restore him to the position he was in prior to the accident. This has clearly been recognized by our legislature.

Affirming the trial court’s award in the instant matter, however, clearly results in a windfall to the plaintiff. The vehicle that was totaled was worth $5,928.00. The plaintiff chose to replace that vehicle with a vehicle which cost $18,745.00. This is not a vehicle comparable to that lost, but instead an improvement over it. The taxes paid on the new vehicle were $1,234.00, or 20.8% of the value of the destroyed vehicle. The proper calculation of sales tax due, in order to make a tort victim whole again, is the tax due on a replacement vehicle of equal value, in this case $5,928.00. Any other interpretation could result in a situation whereby a car worth only a pittance is destroyed and the sales tax on a new vehicle by more than the value of the destroyed car. This would be contrary to the purpose of our tort law which restores a tort victim to the position he was in before the tort. Thus, the proper method of calculating sales tax for a replacement vehicle under Article 2315 is to determine the |4tax due on a vehicle of equal value. In this case, 8% being the applicable sales tax rate, $474.24 is due the plaintiff. We hereby amend the judgment to that amount.

The second assignment of error concerns reimbursement for a rental car. The accident occurred on February 9, 2002, Lowery rented a car on February 11, 2002 and did not return it until April 22, 2002, a period of 71 days. Safeway argues this is unreasonable. They argue Lowery knew that the car was a total loss within two weeks of the accident and he should not be compensated for the rental car for more than 30 days beyond that date.

Whether the appellee replaced the vehicle within a reasonable amount of time and is thus entitled to all damages claimed for the rental vehicle, under the circumstances of this case, is a factual determination which should not be reversed absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The trial court found, based in part on the testimony of Safeway’s adjustor, that it was the usual practice to allow use of a rental vehicle until insurance funds were issued. Thus, the trial court’s determination that the rental expenses were reasonable and recoverable up until Lowery received the check from Safeway and the funds were available to him is not clearly wrong. This assignment of error lacks merit.

The remaining four assignments of error concern general damage awards. In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), the supreme court articulated the standard of appellate review of general damage awards:

[ T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the | ¡^particular circumstances that the appellate court should increase or reduce the award.

We have reviewed the general damage awards. Keith Lowery suffered injuries to his wrist and knee. The knee injury lasted two weeks and the wrist injury 2-3 weeks. He was awarded general damages of $2,000.00. Sandra Lowery suffered injuries to her right thumb and knees. She continues to have pain when she extends her fingers. She also injured her knees, and her left thigh. She was required to have physical therapy. She was awarded general damages of $7,500.00. Sankeitha suffered injuries to her knee, forehead, and left clavicle. She was transported from the scene by ambulance and treated for contusions and trauma. She still gets headaches related to this accident. She was awarded general damages of $4,500.00. Iniki bit her lip during the accident and suffered injuries to her head and knee. She was also transported from the scene by ambulance. Her injuries lasted between two and three weeks. She was awarded general damages of $3,500.00

We find no abuse of the vast discretion of the trial court in awarding general damages. This assignment of error lacks merit.

CONCLUSION

We amend the trial court’s judgment to reflect an award of $474.24 for sales tax due. The judgment is affirmed in all other respects. Costs of this appeal are assessed equally between Safeway and Keith Lowery.

AFFIRMED AS AMENDED.