author: | THIBODEAUX, Judge.

text:
    Mary Jo WALL, et al. v. CALCASIEU PARISH POLICE JURY.
    No. 02-451.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Robert C. McCall, Baggett, McCall, Burgess & Watson, Lake Charles, LA, for Defendants/Appellants, Mary Jo Wall, et al.
    Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee, Calcasieu Parish School Board.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR and JIMMIE C. PETERS, Judges.
   | THIBODEAUX, Judge.

This matter arises out of the death of Kenneth C. Wall and originally came to us by application for supervisory writs filed by plaintiffs, Mary Jo Wall, the deceased wife, and her minor children, Mallory Blair Wall and Julia Madison Wall, against the Calcasieu Parish Police Jury (CPPJ). Kenneth died as a result of an accident that occurred while he was swimming in a designated swimming area in Prien Lake when he was struck by an unidentified boat. In the trial court, the Walls filed a motion for summary judgment contending that general maritime law was applicable. The trial court ruled that Louisiana law was applicable to the case. For the following reasons, we find that general maritime law is applicable and remand for further proceedings.

I.

FACTS

On September 6, 1999, Kenneth was swimming in a designated swimming area in Prien Lake off of the Israel LaFleur beach south of Interstate 210 in Calcasieu Parish, Louisiana. While swimming he was struck by an unidentified watercraft. The autopsy report states “Kenneth Wall, a 39 year old white male died as a result of chop-type injuries of the head from a boat’s propeller.” There is a boat launch in the Israel LaFleur Park (LaFleur Park) located north of the swimming area. Another boat launch is located on Prien Lake less than a mile southeast of the swimming area. There is also a private marina at the south end of Prien Lake.

At the time of the accident, the swimming area was separated from the non-swimming area by approximately six buoys. The defendant admits that there should have been twelve to thirteen buoys in the area. Thus, there were gaps in the buoy line on the date that Kenneth was killed.

liWall brought suit against the CPPJ, 'the owner and operator of the park. In her suit, Wall alleged that the buoy system was improperly designed in that it failed to use a floating line to connect the buoys together. Further, Wall alleged that the buoy system was improperly maintained since the missing buoys created large gaps in the line of buoys. The CPPJ admits that Prien Lake, where the accident occurred, qualifies as a body of “navigable water.” At the motion for summary judgment hearing, Wall asserted that this case, involving a watercraft killing a swimmer in navigable waters, is a maritime tort and the applicable law is admiralty. To the contrary, the CPPJ argues that Wall’s claim sounds in negligence for the CPPJ’s alleged failure to properly delineate the swimming area and warn of possible dangers within that swimming area. Therefore, Louisiana state substantive law applies.

II.

ISSUE

The sole issue in this writ application is whether federal maritime law applies to a non-seafarer who was killed while swimming in a designated swimming area when a watercraft, traveling in navigable waters, struck him.

III.

LAW AND DISCUSSION

Admiralty Jurisdiction

In Green v. Industrial Helicopters, Inc., 593 So.2d 634, 636-37 (La.1992), the supreme court stated:

Generally, federal maritime jurisdiction is invoked whenever an accident occurs on the high seas and in furtherance of an activity bearing a significant relationship to a traditional maritime activity. Offshore Logistics v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).

The judicial power of the United States extends “to all Cases of admiralty and maritime Jurisdiction; ...” U.S. Constitution, Art. III, § 2. Rodrigue v. LeGros, 563 So.2d 248, 251 (La.1990). State courts, however, have concurrent jurisdiction by virtue of the “savings to suitors” clause of the Judiciary Act of 1789. 28 U.S.C.A. § 1333. Further, a maritime claim brought in a state court is governed by the same principles as actions brought in admiralty, i.e., by federal maritime law. Green, 593 So.2d 634. Citing Schoenbaum, Admiralty and Maritime Law § 4-1 at 123 (1987), the Green court stated: “State law and regulations may also supplement federal maritime law when ‘there is no conflict between the two systems of law, and the need for uniformity of decision does not bar state action.’ ” Id. at 637.

In Thomey v. Weber Marine, 01-0153 (La.App. 5 Cir. 5/30/01); 791 So.2d 135, 138, the fifth circuit, facing the issue of whether admiralty jurisdiction was applicable where the plaintiff injured himself when he slipped while attempting to board a barge’s gangway, noted:

The traditional test for admiralty tort jurisdiction was based solely on whether the tort occurred on navigable waters. However, jurisdiction was subsequently extended to injuries caused by a vessel which were consummated on land by the Admiralty Extension Act of 1948, 46 U.S.C. section 740. Further the limits of admiralty jurisdiction have been further established by the United States Supreme Court in a trilogy of cases. In Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), a case involving an airplane crash into navigable waters, the Court provided a two part test for maritime tort jurisdiction known as the “locality plus nexus” test, which provides that for a tort to fall under admiralty jurisdiction of the court, it must occur on or over navigable waters and the tort must “bear a significant relationship to traditional maritime activity.” Id., 93 S.Ct. at 504.

(Emphasis in original).

I ¿The application of Executive Jet was extended beyond the context of aviation in Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), a ease that involved the collision of two pleasure, as opposed to commercial, boats. In Foremost, the court held the maritime activity involved need not be exclusively commercial to fall under admiralty jurisdiction. After Foremost, the activity need only have the potential to impact commerce. The more recent case in this trilogy of admiralty cases is Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), a case involving a fire aboard a pleasure boat that spread to other boats and a nearby marina. With respect to the locality analysis, the Supreme Court held that admiralty jurisdiction extended to cases where the tort occurs on land, provided that the tort was at least caused by a vessel on navigable waters. Furthermore, the facts that give rise to the wrong must have a significant connection to maritime activity. This type of inquiry requires the court to determine whether “the general features of the type of incident involved” have a “potentially disruptive impact on maritime commerce,” and secondly, “whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.” Id., 497 U.S. 358, 110 S.Ct. at 2896, 2897.

Further instruction regarding the second nexus question provided in Sisson was announced in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024, (1995). There, the Supreme Court stated that when a court assesses the general character of the incident it should be “within a class of incidents that posed more than a fanciful risk to commercial shipping.” Id., 115 S.Ct. at 1051. In Grubart, the court was presented with a claim against both a maritime defendant and a land-based defendant for negligent activity that occurred on Innavigable waters. The Court concluded that both defendants were subject to admiralty jurisdiction.

In the present case, the CPPJ does not contest the fact that Kenneth’s death occurred in navigable waters or that his death was caused by a watercraft while in the navigable waters of Prien Lake. The CPPJ argues that this case is not a maritime case because it is a claim by “the survivors of a swimmer against the [CPPJ] for its alleged failure [to] properly warn of dangers of a delineated swim area and in failing to safely delineate that swim area.” In other words, the CPPJ argues that the survivors’ claim against it has no connection to traditional maritime activity. We disagree.

In Sisson, the Court focused on the activity giving rise to the incident and not the claim asserted by the plaintiff — as the CPPJ would have this court do in the present case — to determine the maritime connection. Applying the Sisson analysis as noted above, we conclude that a sufficient maritime connection is present in the instant case. Kenneth was killed while swimming in navigable waters when struck by the propeller of a boat which apparently did not see him. There is no dispute that a boat constitutes a vessel in navigable waters. The failure of the CPPJ to provide the proper number of buoys in the proper manner (connected by floating rope) delineating where vessels may or may not enter, exposes persons who are swimming to injury and damage to boats while boating in areas where swimmers and boaters assume they are safe and unlikely come into contact with each other. The safe use of the navigable lake by both swimmers and boaters is essential and, if unsafe, has a strong potential to disrupt maritime activities due to rescue and search efforts as well as the lack of knowledge of boundaries that cannot be crossed. Under the circumstances presented here, despite the fact that whatever fault attributed to the | r,CPPJ may have been land-based, we conclude that the second requirement of a maritime connection has been satisfied in this case.

Choice of Law

We have already determined that the activity causing Kenneth’s injury and death is significantly related to traditional maritime activity — commercial and/or pleasure boating in navigable waters — and that admiralty jurisdiction is appropriate in the present case. It is well established that maritime law applies in “those cases where the subject matter of the controversy bears the type of significant relationship to traditional maritime activities necessary to invoke admiralty jurisdiction.” Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1231 (5th Cir.1985) (relying upon Kossick v. United Fruit Co., 365 U.S. 731, 736-38, 81 S.Ct. 886, 890-92, 6 L.Ed.2d 56, (1961)); see Watson on Behalf of Watson v. Massman Const. Co., 850 F.2d 219, 220-21 (5th Cir.1988) (holding that admiralty jurisdiction applies to a tort dispute if either the in jured party or the alleged tortfeasor is a traditional maritime actor or at least if either of those parties is performing a traditional maritime activity). “With admiralty jurisdiction comes the application of substantive admiralty law.” East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 2298-99, 90 L.Ed.2d 865 (1986). Uniformity of application throughout the nation is the central purpose and feature of this exclusive jurisdiction. See, The Lottawanna (Rodd v. Heart), 88 U.S. (21 Wall.) 558, 575, 22 L.Ed. 654 (1874). Where there is no uniform federal rule, courts may adopt state law “by express or implied reference or by virtue of the interstitial nature of federal law.” Palestina v. Fernandez, 701 F.2d 438, 439 (5th Cir.1983); See also, Sullivan v. Rowan Companies, Inc., 952 F.2d 141, 148 (5th Cir.1992). “However, to the extent that state law radically differs from general principles |7recognized elsewhere, it should not be incorporated into maritime jurisprudence.” Royal Insurance Co. v. Smatco Indus. Inc., 201 B.R. 755 (E.D.La.1996).

The CPPJ relies on Yamaha Motor Corporation, U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) for the proposition that state law applies in the case of a wrongful death of a non-seaman that occurs in navigable territorial waters. In Yamaha, a twelve-year-old girl was killed while using a jet ski for recreational purposes when she slammed into an anchored vessel in the waters off of the frontage of a hotel. At the time of death, she was vacationing with family friends at a beach-front resort in Puerto Rico. The girl’s parents sought to recover from the manufacturer of the jet ski, alleging that it was defectively designed, pursuant to state laws of survival and wrongful death statutes. Unlike the defendant in the present case that desires the use of state law, the defendant in Yamaha contended that the state remedies could not be applied because the girl died on navigable waters; thus, federal maritime law controlled to the exclusion of state law. The court adhered to the long-standing rule that “state remedies have been applied in accident cases of this order — maritime wrongful-death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman.” Id., 516 U.S. at 202, 116 S.Ct. at 622. Thus, in Yamaha, state law was applied because Congress had not supplied remedies in such a situation. Yamaha dealt only with the type of damages available to a non-seaman who died in territorial navigable waters, after a determination of liability. In the present case, the CPPJ seeks to apply Louisiana state law for the determination of both liability as well as the relief available. Yamaha allowed the plaintiffs in that case to supplement, not supplant, general maritime law in the case of the death of a non-seaman in navigable waters to allow them whatever damages available pursuant to state law. See, Quinn v. St. Charles Gaming Co., 01-1038 (La.App. 3 Cir. 2/6/02); 815 So.2d 968, writ denied, 02-694 (La.4/12/02); 813 So.2d 412, see also, Liner v. Dravo Basic Materials Co., 162 F.Supp.2d 499 (E.D.La.2001) (where the court denied the defendant’s motion for partial summary judgment seeking to strike the plaintiffs’ claims for loss of consortium and punitive damages. The non-seamen plaintiffs had suffered injury as a result of the allision of their recreational vessel with an unmarked sunken barge in . state territorial waters. Finding that Yamaha controlled, the court held that the plaintiffs’ claims were governed by general maritime law, but would be supplemented by Louisiana law). We find that under the facts of this case — death of a non-seaman on navigable waters bearing a close nexus to traditional maritime activity — the claims are governed by general maritime law as supplemented by applicable state laws where state law provides a remedy not available under general maritime law.

IV.

CONCLUSION

Accordingly, for the reasons assigned, we conclude that both requirements necessary to confer admiralty jurisdiction have been satisfied in this case. The trial court’s ruling denying Wall’s motion for summary judgment was improper. This case falls under the court’s admiralty jurisdiction and should be governed by general maritime law. Therefore, the judgment of trial court is hereby reversed. Appellant, Calcasieu Parish Police Jury, shall bear all costs of this writ.

REVERSED. WRIT GRANTED AND MADE PEREMPTORY. REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.


source: Caselaw Access Project

author: J^PETERS, J.

license: Public Domain

text:
    NABORS DRILLING USA v. David DAVIS.
    No. 02-0751.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Mark Riley, Onebane Law Firm, Lafayette, LA, for Plaintiff/Appellant, Nabors Drilling USA.
    Michael Miller, Attorney at Law, Crowley, LA, for Defendant/Appellee, David Davis.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   J^PETERS, J.

On November 14, 2000, David Davis injured his back while pulling drill slips. At the time, he was in the course and scope of his employment with Nabors Drilling USA (Nabors). Davis’ employer appeals a workers’ compensation judgment rejecting its motion to have Davis’ workers’ compensation benefits forfeited pursuant to La. R.S. 23:1208.1. For the following reasons, we reverse and order forfeiture of those benefits.

DISCUSSION OF THE RECORD

Davis began employment with Nabors on September 28, 2000, as a roughneck and floorhand. On that day, and as a condition of being hired, Davis completed a medical history questionnaire. Included on the medical history questionnaire was the following language:

NOTICE: YOUR FAILURE TO ANSWER TRUTHFULLY ANY QUESTIONS ABOUT PREVIOUS INJURIES, DISABILITIES OR OTHER MEDICAL CONDITIONS MAY RESULT IN FORFEITURE OF WORKERS’ COMPENSATION . BENEFITS UNDER LSA R.S. 23:1208.1.

In answering the questions posed on the medical history questionnaire, Davis denied having ever had “Shoulder Trouble” or a prior work injury and surgery and denied having ever received workers’ compensation benefits. These responses were false. Davis had in fact sustained a work injury to his shoulder on January 18, 1994, while employed by Petro Star Corporation (Petro Star). Treatment of this injury required surgery, and Davis received workers’ compensation benefits as a result of this injury.

Based on Davis’ failure to answer truthfully the questions posed by the preem-ployment medical history questionnaire, Nabors filed the instant pleading to have benefits forfeited under La.R.S. 23:1208.1. However, the workers’ compensation judge rejected Nabors’ forfeiture request on the basis of failure to show | ¡.a merger between the two work injuries. Nabors has appealed that judgment.

OPINION

La.R.S. 23:1208.1 provides in pertinent part: “Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund.”

[T]o be reimbursed from the second injury fund, an employer must prove the existence of three elements. An employer must prove that the employee had a [permanent partial disability] satisfying the requirements of La.R.S. 23:1378(F). That is, the [permanent partial disability] must be so serious as to hinder employment. Id. The employer must also prove he had actual knowledge of the employee’s [permanent partial disability] before the occurrence of the injury forming the basis of compensation claim. Finally, the employer must prove that the [permanent partial disability] merged with the injury to produce a greater disability. La.R.S. 23:1371(A); La.R.S. 23:1378(A).

Wise v. J.E. Merit Constructors, Inc., 97-0684, p. 12 (La.1/21/98), 707 So.2d 1214, 1220 (citation omitted).

For purposes of reimbursement from the second injury fund,

the merger of an injury with a preexisting permanent partial disability is limited to the following:
(1) The subsequent injury would not have occurred but for the preexisting permanent partial disability; or
(2) The disability resulting from the subsequent injury in conjunction with the preexisting permanent partial disability is materially and substantially greater than that which would have resulted had the preexisting permanent partial disability not been present, and the employer has been required to pay and has paid compensation for that greater disability.

La.R.S. 23:1371(C).

The record establishes that Davis sustained an injury to his right shoulder on la January 18, 1994, while working for Petro Star. He began treatment with Dr. John Cobb, a Lafayette, Louisiana orthopedic surgeon, and was ultimately diagnosed with impingement tendinitis of the rotator cuff with hypertrophy of the distal clavicle and the acromion. In September of 1994, Dr. Cobb performed a partial acromionec-tomy, with resection of the distal clavicle and of the coracoacromial ligament. Thereafter, Davis returned to work. Following an examination on November 20, 1995, Dr. Cobb reported that he did not think that the work Davis was doing was “a reasonable thing for him to be doing.” The doctor stated: “He is going to have to resolve to do primarily light type work activities and not return to this unrestricted work that he is doing at the present time.” In March of 1996, Dr. Cobb stated: “I think working on the rigs, primarily handling the slips was what was causing his problem.” In May of 1996, Dr. Gregory Gidman, a Lafayette, Louisiana orthopedist, gave Davis an impairment rating of 10% to the upper extremity and 6% to the body as a whole.

Despite Dr. Cobb’s concerns and Dr. Gidman’s impairment ratings, Davis returned to work as a roughneck and floor-hand. He admits that he did not inform Nabors of his shoulder injury prior to the back injury he sustained on November 14, 2000, while pulling drill slips.

Following the work injury to his back, he began seeing Dr. Cobb, among other physicians, once again. An MRI of the lumbar spine revealed a disc herniation at L5-S1, and an EMG revealed right L5 radicular changes. Dr. Cobb spoke with Davis “about the implications of him returning to the oil field, that he would have to get something lighter.” Additionally, Dr. Cobb recommended surgery.

By letter dated May 10, 2001, counsel for. Nabors requested Dr. Cobb’s opinion regarding whether “as a result of having had the prior shoulder surgery Mr. Davis will have a greater disability as a result of a combination of the shoulder and the lumbar 14injury than he would have had solely from the lumbar injury itself.” Dr. Cobb responded by letter dated June 12, 2001, as follows: “It always seems a bit confusing to me regarding the Second Injury Fund, but based on what I understand from your correspondence, if he has a greater disability resulting from a combination of the shoulder and lumbar injuries than he would have had simply from the lumbar, I would agree that this patient would meet the criteria for reimbursement from the Second Injury Fund.” By letter dated June 25, 2001, counsel for Nabors attempted to clarify Dr. Cobb’s statement. On July 26, 2001, Dr. Cobb responded by letter to Nabors’ counsel as follows: “I ... would certainly agree that he would have a greater disability with the combined shoulder injury and lumbar injury.”

In denying the request for forfeiture, the workers’ compensation judge stated: “While Dr. Cobb’s letter establishes that there is a greater disability because there are two disabilities, it does not address any merger between the two, and I think that needs to be present. And therefore, I am denying the 1208.1 forfeiture request.” As an appellate court, we may not set aside a fact finder’s findings of fact unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). In this matter, we conclude that the workers’ compensation judge was clearly wrong in her factual conclusions.

In Southland Corp. v. State of Louisiana Workers’ Compensation, Second Injury Board, 593 So.2d 956 (La.App. 4 Cir.1992), the employee was electrocuted in 1972, which caused him to have a permanent partial disability consisting of the loss of his left hand from amputation and the clubbing of his right hand. In 1983, Southland Corporation hired him as a security supervisor. In 1985, the employee slipped and fell, sustaining a herniated disc at L5-S1 and severe narrowing of the disc space at L4-5. At issue was whether the employee’s disability resulting from his back | ^injury in connection with his preexisting injury was materially and substantially greater than it would have been had the employee not had the preexisting injury. The fourth circuit stated:

Common sense would seem to answer the question in the affirmative. Anybody with a herniated disc is usually disabled to some extent, but [this employee] is materially and substantially more disabled with his herniated disc because he has only one hand and that one is deformed.
But, we need not resort only to common sense.... [T]he orthopedic surgeon who treated [the employee] for his back injury, stated that he was more disabled because of his back injury, and he explained that [the employee’s] disability from the back injury was greater because of his preexisting disability in this way:
He had a below elbow amputation on one extremity, the left as I recall, and the right side, he had a severe contracture deformity of his right hand. You know, you put all of these things together, the hand disability, the absence of a left forearm and hand and put the back with it, well, naturally, it makes him more disabled.
The doctor further stated, “I think he’s more disabled with the back added to his previous problem which makes it more difficult for him to get a job, to work at some job in a meaningful way.”

Id. at 958.

Likewise, in the instant case, common sense indicates that Davis, who already has a 6% impairment rating to the body as a whole, is materially and substantially more disabled with the herniated disc added to his already impaired body. Further, as in Southland Corp., Dr. Cobb stated that Davis would have a greater disability with the combined injuries. There is no contrary evidence in the record. Thus, the evidence does establish that there exists a sufficient merger between Davis’ subsequent and prior injuries to satisfy the requirements of La.R.S. 23:1371(C)(2). However, because Nabors had no knowledge of Davis’ preexisting permanent partial disability, it could not seek reimbursement from the second injury fund and was thus prejudiced by Davis’ failure to answer truthfully the medical history questionnaire. Therefore, pursuant to La.R.S. 23:1208.1, Nabors was entitled to have Davis’ | ¿workers’ compensation benefits forfeited. Accordingly, we reverse the judgment denying Nabors’ request for forfeiture of benefits under La.R.S. 23:1208.1.

DISPOSITION

For the foregoing reasons, we reverse the judgment below and order forfeiture of David Davis’ workers’ compensation benefits. We assess all costs to David Davis.

REVERSED AND RENDERED.


author: JjDECUIR, Judge.

text:
    Sarah B. DUBROC v. Bonnie SWAIN, Progressive Insurance Co., et al.
    No. 02-0763.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      John T. Bennett, John T. Bennett Law Offices, Marksville, LA, Counsel for Sarah B. Dubroc.
    Richard A. Rozanski, Wheelis & Rozan-ski, Alexandria, LA, Counsel for Allstate Insurance Co.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   JjDECUIR, Judge.

This appeal arises from an automobile accident which occurred on Christmas Eve in 1999. Plaintiff, Sarah Dubroc, sustained injuries in the accident; she filed suit against Bonnie Swain, Swain’s liability insurer, Progressive Security Insurance Company, and her own UM carrier, Allstate Insurance Company. Admitting that Swain was at fault in causing the accident, Progressive did not contest liability. Prior to trial, Progressive tendered the $10,000.00 limits of its policy, and both Progressive and Swain were released from suit. Allstate paid $5,000.00 as an unconditional tender under its policy. Trial then proceeded against Allstate under the UM coverage provided to Dubroc. Subsequent to a bench trial, judgment was rendered in favor of Dubroc and against Allstate in the amount of $50,000.00. Allstate appeals and we affirm as amended.

Dubroc contends that she sustained permanent injuries to her neck and back as a result of the accident with Swain. Prior to the accident, however, Dubroc was injured in three other automobile accidents. She was treated for neck and back pain following those accidents, and the results of diagnostic testing performed during that treatment were offered as exhibits in this case. Essentially, Dubroc contends that MRIs taken in February of 1999 of the cervical, thoracic, and lumbar spine yielded normal results, whereas similar tests done after the accident showed degenerative changes and suggestions of disc bulging patterns. She was diagnosed with muscle and ligament strain, myofascial pain, degenerative changes in the cervical spine, and possible fibromyalgia and bulging cervical and lumbar discs.

The trial court concluded that Dubroc sustained permanent injuries in the accident and found that her damages exceeded $65,000.00. Because Dubroc had stipulated that her damages did not exceed $50,000.00, the trial court awarded that | ^amount, plus interest. The court noted that the $50,000.00 award was exclusive of the $10,000.00 payment by Progressive and the $5,000.00 payment by Allstate.

On appeal, Allstate contends the trial court erred in determining the nature and cause of Dubroc’s injuries, in failing to find that she did not mitigate her damages, in awarding excessive damages, and in failing to reduce the amount of damages assessed to Allstate by the amounts previously paid to Dubroc.

Our review of the evidence, including the pre- and post-accident medical reports, deposition testimony of the treating physician, and the plaintiffs description of her pain and changes in lifestyle, supports the conclusion that the trial court did not abuse its vast discretion in finding Dubroc’s damages exceeded $65,000.00. The medical evidence also supports the determination that Dubroc’s medical condition at the time of trial was caused by the accident at issue herein, and not by her previous accidents. Accordingly, we affirm those factual findings.

In support of its allegation of failure to mitigate damages, Allstate points to Dubroc’s three-day delay in seeking medical attention and her five-month gap in medical treatment as evidence of failure to mitígate her damages. Dubroc explained that she waited three days before seeing a doctor after the accident because it was Christmas and she did not want to spend the holidays in a hospital emergency room. In explanation of the five-month treatment gap, Dubroc discussed the high cost of massage therapy and strength training, both of which she felt would help her condition but were cost prohibitive. She was not a candidate for surgery. Given this evidence, we do not find the plaintiff’s actions constitute a failure to mitigate her damages.

We turn now to Allstate’s argument that the trial court’s award should be reduced by Progressive’s $10,000.00 payment and its own $5,000.00 unconditional Inpayment to Dubroc. Allstate argues that by stipulating that her damages did not exceed $50,000.00 and thereby avoiding a jury trial, Dubroc effectively admitted that her damages from all defendants against whom she had asserted a claim could not be worth more than $50,000.00; therefore, by accepting payments totaling $15,000.00, Dubroc limited her recovery at trial to $35,000.00. We disagree. Under prevailing Louisiana jurisprudence, the pre-trial settlement with a liability insurer is not to be considered in determining the value of the cause of action against the uninsured motorist carrier. Benoit v. Allstate Ins. Co., 00-0424 (La.11/28/00), 773 So.2d 702. The cited jurisprudence does not limit this rule to settlements reached before a claim against the UM carrier is asserted, nor is it relevant to determine if the stipulation of damages comes before or after such a settlement. Rather, the supreme court has held that the $50,000.00 jurisdictional threshold for a trial by jury (codified at La.Code Civ.P. art. 1732(1)) is determined by focusing “on the value of the plaintiffs cause of action against the defendant or defendants who are before the court at the time the right to a jury trial is litigated.” Benoit, 773 So.2d 702, 708. Accordingly, the trial court properly refused to credit Allstate with the $10,000.00 payment by Progressive.

We reach a different result with the $5,000.00 payment made to Dubroc by Allstate. The record indicates and the trial court found that the payment was made under the UM coverage provided to Dubroc. She then stipulated that her damages under her UM coverage would not exceed $50,000.00. In Guidry v. Millers Cas. Ins. Co., 01-0001 (La.App. 1 Cir. 6/21/02), 822 So.2d 675, 683, the first circuit explained:

However, by stating that no individual petitioner’s cause of action exceeded $50,000.00, exclusive of interest and costs, Guidry limited the ultimate liability of Allstate to her to that amount. Nonetheless, such a stipulation under the facts of this case did not limit the determination of the total damages sustained by Guidry as a result of the negligence of Pharagood.

| Consequently, while we find no error in the trial court’s calculation of a minimum of $65,000.00 in total damages, we must conclude that Dubroc limited her own recovery of those damages to a maximum of $50,000.00 from Allstate. Because Allstate has already tendered $5,000.00, it must be credited with such payment and assessed only the remaining $45,000.00 of its UM exposure. We note that this limitation is not based on the terms of the UM coverage (which specified limits of $1,000,000.00) but, rather, on the stipulation of damages entered into by the plaintiff.

For the foregoing reasons, the judgment of the trial court is amended to award the plaintiff the sum of $45,000.00, plus interest, costs, and costs of the appeal, against Allstate Insurance Company. In all remaining respects, the judgment is affirmed.

AFFIRMED AS AMENDED.


author: J^DECUIR, Judge.

text:
    Tiffany LESTER v. VILLA PIZZA 2808.
    No. 02-0824.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 15, 2003.
    Mark Zimmerman, Cox, Cox, Filo & Camel, Lake Charles, LA, for Tiffany Lester.

      Jeffrey C. Napolitano, Bradley P. Nac-cari, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Villa Pizza 2808.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   J^DECUIR, Judge.

Claimant appeals a determination of the workers’ compensation judge that she failed to prove a work-related injury and denying penalties and attorney fees.

FACTS

Tiffany Lester was a general manager in training for Villa Pizza. On November 13, 1999, she injured her left foot in a nightclub parking lot. The injury did not occur in the course and scope of her employment. Emergency room x-rays, taken on November 15, 1999, revealed no fracture. On November 17, 1999, Lester saw Dr. R. Dale Bernauer. Dr. Bernauer confirmed the absence of a fracture, but discovered torn ligaments in the ankle. Lester was placed in a fiberglass walking cast. That same day or the next day she returned to work at Villa Pizza. She continued to work with her ankle in a cast until December 8, 1999. Lester did not allege a specific work event caused her disability. Instead she contends that the stress of working on her feet for 10-12 hours a shift caused her ligament to not heal properly necessitating surgery.

Dr. Bernauer, in his first deposition, testified specifically that working on her feet with the cast would not have worsened the injury or made surgery more necessary because the cast held the ligaments in place. In his second deposition, he stated that he could not state with any degree of medical certainty whether Lester’s work prevented her ligaments from healing. Villa Pizza’s choice of physician, Dr. Gregory Gidman, testified that when immobilized in a cast, ligaments usually heal. However, in some cases for no particular reason the ligaments do not heal and surgery is required.

The workers’ compensation judge found that Lester failed to prove a work-related injury and denied her claim for benefits, penalties and attorney fees. The workers’ compensation judge also found that Lester had not forfeited her right to compensation by operation of La.R.S. 23:1208. Lester lodged this appeal. Villa | ..Pizza answered alleging the workers’ compensation judge erred in failing to find that Lester committed workers’ compensation fraud by testifying that Dr. Bernauer showed her where her foot was fractured when there was no fracture.

WORK-RELATED INJURY

Lester first contends that the workers’ compensation judge erred in failing to find that work stress caused her previous injury not to heal, thereby creating an injury compensable under workers’ compensation laws. We disagree.

The claimant seeking workers’ compensation benefits must prove by a preponderance of the evidence that she was injured in an accident in the course and scope of her employment. Burns v. Beauregard Nursing Ctr., 94-131 (La.App. 3 Cir. 10/5/94), 643 So.2d 443. In addition, the claimant must also establish a causal link between the accident and the subsequent disabling condition. Marks v. 84 Lumber Co., 00-322 (La.App. 3 Cir. 10/11/00), 771 So.2d 751. If the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry her burden of proof. Bernard v. O’Leary Bros. Signs, Inc., 606 So.2d 1331 (La.App. 3 Cir.1992).

The trial court’s determinations with regard to the credibility of witnesses and the discharge of the claimant’s burden of proof are factual issues and should not be disturbed on appeal in the absence of manifest error. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). The workers’ compensation judge’s assessments of the weight of the medical evidence are not to be disturbed unless clearly wrong. Chambers v. Louisiana Pacific Mfg., Inc., 97-1188 (La.App. 3 Cir. 4/22/98), 712 So.2d 608. Furthermore, where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed unless manifestly |,^erroneous. Novak v. Texada, Miller, Masterson & Davis Clinic, 514 So.2d 524 (La.App. 3 Cir.), writ denied, 515 So.2d 807 (La.1987).

In this case, Lester argues that her work-related injury is the ongoing stress of standing on her feet and lifting objects during long work days. She contends that this stress prevented her damaged ligaments from healing and, therefore, she should be entitled to compensation. After reviewing the record, we find no error in the workers’ compensation judge’s finding that Lester failed to carry her burden of proof. The best medical evidence Lester offered was Dr. Bernauer’s statement in his second deposition that he could not say to a medical certainty that her work stress caused her ligaments not to heal. That statement was counterbalanced by the testimony of his first deposition as well as Dr. Gidman’s testimony. Under these circumstances, it is evident that Lester failed to carry her burden of proof. This assignment of error has no merit.

Having found that Lester failed to establish a work-related accident, we need not address her remaining assignment regarding penalties and attorney fees.

FRAUD

Villa Pizza answered the appeal, alleging the workers’ compensation judge erred in failing to find that Lester had committed workers’ compensation fraud and, therefore, forfeited her right to benefits pursuant to La.R.S. 23:1208. We disagree.

As we stated in Temple v. Huey Wilson Trucking Co., Inc., 98-1342 (La.App. 3 Cir. 3/3/99), 736 So.2d 929, 931, writ denied, 99-955 (La.5/28/99), 743 So.2d 667:

In order to conclude that a claimant has forfeited his benefits, the court must find that 1) there is a false statement or representation, 2) it is willfully made, and 3) it is made for the purpose of obtaining or defeating any benefit or payment. La.R.S. 23:1208, being penal in nature, it is to be strictly construed and the words literally read.

UVilla Pizza contends that Lester’s statement that Dr. Bernauer showed her where her foot was fractured when there was no fracture was a false statement for the purpose of obtaining workers’ compensation benefits. The workers’ compensation judge did not agree, nor do we. Lester never asserted that the original injury to her foot was work-related and the basis of her claim was not dependent on the existence of a fracture. To the contrary, she asserted that her ligaments did not heal properly as a result of work-related stress. Moreover, the workers’ compensation judge could have concluded that the misrepresentation was not willful, but rather a misunderstanding between doctor and patient. In any event, we find no error in the workers’ compensation judge’s finding that Lester had not committed fraud under La.R.S. 23:1208.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. All costs of these proceedings are taxed to appellant, Tiffany Lester.

AFFIRMED.


author: I!WOODARD, Judge.

text:
    FEDERATED RURAL ELECTRIC INSURANCE CORPORATION v. GULF SOUTH CABLE INC.
    No. 02-852.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Robert R. McBride, Lafayette, LA, for Plaintifi/Appellant: Federated Rural Electric Insurance Corporation.
    Thomas L. Gaudry, Jr., Gretna, LA, for Defendant/Appellee: Gulf South Cable, Inc.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   I!WOODARD, Judge.

In an underlying suit, Federated Rural Electric Insurance Corporation (Federated) defended its insured, Dixie Electric Membership Corporation (Dixie), and settled all claims for $125,000.00. Based on an indemnity agreement between Dixie and Gulf South Cable, Inc., (Gulf South), Federated filed an indemnity claim against Gulf South. Gulf South moved for summary judgment, which the trial court granted. Federated appeals. We reverse.

On May 27, 1994, while working at a residential construction site located at 19129 Lod Stafford Road in Livingston, Louisiana, Mr. Joseph Jones was electrocuted. A hydraulic boom attached to his truck made contact with an electrical transmission line, which Dixie owned.

On May 25, 1995, Mr. Jones’ surviving heirs filed a survival action and wrongful death suit, alleging that Dixie and Mr. Mark Smith, the property owner, as well as their respective insurers, were liable for Mr. Jones’ wrongful death under the theories of strict liability and negligence.

After reviewing Professor Nethken’s testimony and evaluating the liability exposure before a jury, Federated, Dixie’s general insurer, settled all claims for $125,000.00 plus court costs. On March 23, 1999, Federated filed a Petition for Indemnity against Gulf South, alleging subrogation to Dixie’s right to recover the amount paid to the Jones heirs, attorney’s fees, expert fees, and court costs. In response, Gulf South filed a Dilatory Exception of Vagueness or Ambiguity, which the trial court granted. Federated followed with a supplemental and amending petition for indemnity, alleging that Gulf South was responsible for Mr. Jones’ death because it installed a television cable line 3.2 feet below the neutral line on the dead-end pole and 1.8 feet below the neutral line at the take off pole, in violation of Gulf South and Dixie’s agreement. Subsequently, Gulf South moved for summary judgment, alleging that it did not owe indemnity to Federated because it neither caused nor contributed to the accident. The trial court granted summary judgment.

_k* * *

STANDARD OP REVIEW

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.

La. Code Civ.P. art. 966 charges the moving party with the burden of proving that summary judgment is appropriate. In doing so, its supporting documentation must be sufficient to establish that no genuine issue of material fact remains to be decided. Once the mover makes a prima facie showing that there is no genuine issue regarding a material fact and that summary judgment should be granted, the burden shifts to the nonmover. Furthermore, La.Code Civ.P. art. 967 provides, in pertinent part:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

In summary, in reviewing a trial court’s summary judgment, the threshold question is whether a genuine issue of material fact remains. Thus, we must ^determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment.

Material Fact in Dispute/Burden op Proof

In the instant case, Gulf South moved for summary judgment because Dixie caused Federated’s loss and that it had nothing to do with it. Consequently, it is not liable to Federated for indemnity.

In granting the summary judgment in Gulf South’s favor, the trial court held that the boom made contact with Dixie’s energized line, not Gulf South’s cable; thus, Gulf South was not negligent in the underlying accident, and Mr. Jones caused his own demise. We find that the trial court could not have properly made this ruling without making improper factual determinations. For instance, Mr. Rick Brooks, Dixie’s expert, contends that Mr. Jones’ negligence caused his untimely death. He testified, “The accident occurred because either [sic] his careless operation or because of a malfunction within the controls that he was using[.]” Additionally, he testified regarding the height of the poles, the electrical transmission line, and the boom.

Q. Now, did this attachment ... [the Gulf South Cable Television] ... did that have anything to do with this accident?
A. I don’t think so. I mean.we’re attempting to create a scenario where given this, that and the next thing, the primary line would be higher, therefore the accident wouldn’t have occurred. But that’s totally circumstantial.
First of all, I don’t agree with all the numbers that have been brought forward. But, notwithstanding that, I mean, how do we know that this crane device wouldn’t reach up another two feet? I mean, how do we know it didn’t hit when it was coming down? It appears to me that it’s at least a foot higher than the line when it made contact. So, again, it’s manipulative in my estimation to try to back door or as I said take a look back and play “what if’ scenarios. The basic problem here is that the guy shouldn’t have been operating the boom anywhere near a power line, whether the power line was at eighteen and a half feet, twenty-one feet or twenty-six feet. That’s why the accident occurred. It wasn’t — it would be only circumstantial as I said before if the accident was avoided by the line being higher.

pUsing this testimony, Gulf South made a prima facie showing of an absence of a material fact in dispute, that being that it did not cause or contribute to Mr. Jones’ death. Accordingly, the burden shifted to Federated to prove the existence of a material fact in dispute.

Professor Robert Nethken, the Jones’ expert and a retired electrical engineer, stated that Dixie had a fool-proof safety system for the electrical lines’ placement, that the installation of Gulf South’s cable line caused the system to fall below the NESC and REA requirements, and that this caused the electrocution. Nethken, also, faulted Dixie for failing to allow room for the communication line. As such, his testimony places an issue of material fact, regarding Dixie or Gulf South’s negligence and/or liability, in dispute.

In determining whether summary judgment is appropriate, our jurisprudence provides that:

[I]t is not the function of the trial court to determine or inquire into merits of issues raised, and the trial court may not weigh the conflicting evidence on a material fact. If evidence presented is subject to conflicting interpretations, summary judgment is not proper.

Also,

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.

Further,

Summary judgment may not be granted when supporting and opposing documents reveal conflicting versions of the facts which may |5only be resolved by weighing contradicting testimony and assessing witness credibility.

Clearly, Mr. Brooks and Professor Nethken’s testimonies reveal conflicting versions of the facts and causation of the accident, which the trial court should not have resolved on summary judgment. Rather, this complex causation issue necessitated a trial on the merits in which the trier of fact could analyze the pertinent documents and perform credibility determinations. Furthermore, a juror could have accepted either of the experts’ testimonies as true. Accordingly, the trial court erred in granting summary judgment.

Notwithstanding, it, also, granted summary judgment based upon the provisions in the Dixie/Gulf South indemnity agreement. Section 19 of that contract provides, in pertinent part: “The payments and indemnities in this Section ... shall apply ... regardless of whether such damages, liabilities, payments or losses are caused, in whole or in part ... by the acts or omissions of Cooperative!.]” After reviewing this clause, the trial court found it to be unenforceable, concluding that it violated public policy, in effect, by allowing one to recover for one’s own negligence. Furthermore, the court believed that it was illogical because it requires Gulf South to indemnify Dixie regardless of whether Gulf South is totally free from fault.

We find the contractual language analogous to that found in a first circuit decision for Lefort v. C & E Boat Rental. In Lefort, the clause provided that:

“Owner hereby agrees to fully indemnify ... of and from any and all liabilities, losses, damages, and costs of whatsoever nature or kind, for personal injury or death ... arising out of or in any way directly or indirectly connected with the use of the vessel by Charterer ... whether or not caused or contributed to by the negligence, strict liability or fault of Charterer!.]”

Our brethren held:

|fiC & E could have availed itself of an indemnity agreement that did not encompass explicit language binding itself to indemnify and defend in situations involving the strict liability and/or negligence of the platform owner which was also the charterer. However, having entered into such an agreement, C & E is bound thereby and is presumed to have consented to its contents.

Accordingly, we find that Gulf South had a duty to carefully review the binding language and, if it was objectionable, not to agree to its terms. Such is a basic tenet of contract law. We fail to see how this provision or obligation is against public policy. Thus, summary judgment was improper on this ground. We reverse the trial court’s grant of it and remand for further proceedings.

CONCLUSION

Federated filed an indemnity claim against Gulf South. Gulf south moved for summary judgment, which the trial court granted on two grounds, one of which was that the indemnity provision concerning fault was against public policy. We reverse because the trial court determined causation which is a disputed factual issue not proper for resolution in a summary judgment proceeding. Furthermore, we fail to see how the provision, in question, is contrary to public policy, the second ground upon which the trial court based its grant of summary judgment.

REVERSED AND REMANDED.

AMY, J., concurs.

      . Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991).

      . La.Code Civ.P. art. 966(B).

      . Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97); 702 So.2d 323.

      . Id.

      . Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97); 701 So.2d 498, writ denied, 98-50 (La.3/13/98); 712 So.2d 882.

      . Id.

      7. National Gypsum Co. v. Ace Wholesale, Inc., 96-215, pp. 4-5 (La.App. 5 Cir. 11/26/96); 685 So.2d 306, 308, writ denied, 96-3055 (La.2/7/97); 688 So.2d 502.

      8. Willis v. Medders, 00-2507, p. 3 (La.12/8/00); 775 So.2d 1049, 1051.

      9. Citizens Bank & Trust Co. v. Mitchell, 31,435 (La.App. 2 Cir. 1/20/99); 727 So.2d 661.

      . 00-814 (La.App. 1 Cir. 3/28/01), 795 So.2d 359, writ denied, 01-1274 (La.6/15/01); 793 So.2d 1251.

      . 795 So.2d at 361.

      12. 795 So.2d at 364.


author: hGREMILLION, Judge.

text:
    Olla THOMAS, et al. v. SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION d/b/a Lake Charles Memorial Hospital.
    No. 02-0645.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 15, 2003.

      Todd A. Townsley, The Townsley Law Firm, Lake Charles, LA, for Plaintiffs/Ap-pellees, Olla Thomas.
    Benjamin Joseph Guilbeau, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defen-danVAppellant, Lake Charles Memorial Hospital, Southwest Louisiana Hospital Association.
    Court composed of NED E. DOUCET, JR., Chief Judge, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

Both the plaintiff, Betty Latigue, and the defendant, Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital (Memorial Hospital), appeal the judgment of the trial court in this medical malpractice matter. For the following reasons, we reverse.

FACTS

On August 29, 1996, the plaintiff, Olla Thomas, filed suit against Memorial Hospital under the Louisiana Medical Malpractice Act due to a fall she suffered from a hospital bed. Athough she originally sought a trial by jury, she later requested a bench trial due to the fact that the damages in this matter did not meet the jurisdictional requirements for a trial by jury-

On July 23, 1993, Thomas fell at home, suffering a laceration to her forehead. After being treated in the emergency room, she was admitted to the hospital for observation. The admit note states that she was suffering from Azheimer’s Disease and syncope or dizziness. While she was in the hospital, Thomas’ fifteen-year-old grandniece, Stephanie Thomas, stayed in the room with her.

On July 26, 1993, at 3:30 a.m., Thomas was found on the floor by her bed by a nurse’s aide, with the two bottom bed rails down. The nurse’s notes account the events leading up to Thomas’ fall. At 4:00 p.m., July 25, 1993, Kendall Leadbetter, now Mattinson, reported that Thomas answered her questions appropriately, but was disoriented to time, person, and place. She noted that a family member was present and encouraged both of them to use the call button for assistance. The flow record indicates that all' four bed rails were up at this time. At |210:00 p.m., Mattinson noted that her assessment of Thomas was unchanged. At 12:00' a.m., she noted that Thomas’ doctor was on his rounds, and that new orders were received. At 3:00 a.m., she noted that Thomas was asleep. At 3:35 a.m., she notes that Thomas was found on the floor by the nurse’s aide. “No c/o pain discomfort, bearing wt well. Granddaughter present in room. States that she did not hear grandmother fall. Bottom 2 rails down on bed. When questioned granddaughter stated she had put them down earlier.”, An incident report prepared contemporaneously with the incident echos these remarks.

An assessment performed on Thomas by Mattinson revealed no serious injury, her doctor was not informed of the fall until 7:00 a.m. that morning. X-rays later revealed that Thomas had suffered a displaced subcapital fracture of the left femoral head. Surgery was performed by Dr. Dale Bernauer, which entailed the placement of a prosthesis on Thomas’ left hip. She fell out of bed a second time while in the hospital, but suffered no further injury. A third fall at home, after her discharge, required further surgery on her left hip.

This matter was initially submitted to a Medical Review Panel. On June 3, 1996, the panel found that the evidence presented failed to support Thomas’ claim that Memorial Hospital failed to comply with the appropriate standard of care. The written reasons submitted by the panel state:

The evidence presented, in the form of hospital records and nurses notes (which were appropriate and thorough) strongly indicate that proper treatment was being rendered to the patient, and more specifically, that the hospital staff had been consistent in keeping the bed rails up to prevent injury to the patient. Literally every shift on the “Nursing Flow Records” from the date of admission on June 23, 1996(sic), up to thirty minutes before the incident in question on the morning of June 26, 1996(sic), and after-wards, indicates that the side rails were 1 achecked and were up in either the times two or the times four position. Our opinion is based on the actual records presented for review as opposed to any post-incident recollections by the parties involved, although some concern arises from the fact that the relative of the patient who slept in the hospital room every night apparently was not following nurses instructions as to the patient’s restraints even several days after the incident according to the nurses notes of July 2,1993.

Thomas died on January 18, 1998. On November 8, 1998, an order was granted by the trial court substituting Latigue as the plaintiff in this matter. During the bench trial, evidence was submitted by Latigue that Stephanie did not put the bed rails down and that she never told Mattin-son that she did so. Following the close of evidence, the trial court rendered judgment finding Memorial Hospital twenty percent at fault in causing Thomas’ fall and Stephanie eighty percent at fault in causing her fall. Following the bench trial, the trial court awarded Thomas general damages in the amount of $200,000, but reduced that amount by the eighty percent fault attributed to Stephanie, for an award of $40,000. In a February 20, 2002 amended judgment, the trial court held that the total possible award recoverable by Thomas was $50,000, due to her stipulation that the damages in this matter did not meet the jurisdictional limits provided by La.Code Civ.P. art. 1732(A)(1). Accordingly, the trial court reduced the $50,000 award by the eighty percent fault attributable to Stephanie, which resulted in an award of $10,000 against Memorial Hospital. Appeals by both Latigue and Memorial Hospital followed.

ISSUES

Memorial Hospital raises one. assignment of error on appeal. It argues that the trial court erred in finding that it breached the standard of care due Thomas when there was no testimony supporting that breach.

RLatigue raises four assignments of error on appeal. She argues that the trial court erred in finding Memorial Hospital only twenty percent at fault, while finding Stephanie eighty percent at fault. She also argues that the trial court erred in amending the judgment to apportion the eighty percent fault attributed to Stephanie on the stipulated recoverable amount of $50,000, instead of the $200,000 it originally awarded Thomas. Finally, Latigue argues that the trial court erred in assessing Thomas with eighty percent of the court costs.

LAW

In Odom v. State ex rel. Department of Health and Hospitals, 98-1590, pp. 7-8 (La.App. 3 Cir. 3/24/99), 733 So.2d 91, 96-97, this court discussed the law pertaining to medical malpractice:

In a medical malpractice action alleging the negligence of a hospital, the plaintiff carries the burden of proving, as in any negligence action, that “the defendant owed the plaintiff a duty to protect against the risk involved, that the defendant breached that duty, that the plaintiff suffered an injury, and that the defendant’s actions were a substantial cause in fact of the injury.” Smith v. State Through Dep’t HHR., 523 So.2d 815, 819 (La.1988).
Furthermore, it is well settled that a hospital may also be liable for the negligent acts committed by its employees, including nurses, pursuant to the doctrine of respondeat superior. Lopez v. State, 98-577 (La.App. 3 Cir. 10/28/98), 721 So.2d 518. In such a case, the liability imputed upon the hospital must be viewed in light of the nurse’s actions. See id. Thus, a hospital may be liable for the negligence of a nurse if the nurse violated the legal standards of negligence applicable for nurses.
In Migues v. Sagrera, 620 So.2d 463, 465 (La.App. 3 Cir.1993), we stated that a nurse may be negligent under the provisions of La.R.S. 40:1299.41(A) of the Louisiana Medical Malpractice Act, in the following circumstances:
Nurses and other health care providers are subject to the same standard as physicians. It is the nurse’s duty to exercise the degree of skill ordinarily employed, under | ^similar circumstances, by the members of the nursing or health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case.
(Emphasis added).
More specifically, La.R.S. 9:2794 sets forth three requirements which a plaintiff must satisfy to meet its burden of proving negligence of a nurse: (1) she must exercise the degree of skill ordinarily employed, under the circumstances, by the members of the nursing or health care profession in good standing in the same community or locality; (2) she either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with her best judgment in the application; and (3) as a proximate cause of this lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not, otherwise, have occurred.
The distinction of whether a suit is brought on the basis of a hospital’s own liability or that of a nurse under the doctrine of respondeat superior is relevant to the analysis that we must perform, because the law pertinent to the standard of negligence applicable to nurses is conditioned upon the locality rule; whereas, the general rules of negligence are applicable to determine whether a hospital was negligent. La. R.S. 40:1299.41(A)(7); See Smith, 523 So.2d 815.

FAULT

In this instance, Thomas’ petition states a cause of action against Memorial Hospital based on the alleged negligence of its nursing staff. Her petition states: “Lake Charles Memorial Hospital deviated from applicable medical standards by failing to adequately supervise and observe plaintiff while hospitalized and more particularly, in fading to maintain the bed rails in the up position at night while plaintiff was asleep.” Accordingly, in order to prevail, Latigue was required to (1) establish the standard of care applicable to the nursing staff, (2) a violation by the nurse of that standard of care, and (3) a causal connection between the nursing staffs alleged negligence and Thomas’ injuries. In re Triss, 01-1921 (La.App. 4 Cir. 6/5/02), 820 So.2d 1204.

After reviewing the record, we find that the trial court erred in assessing twenty percent of the fault to Memorial Hospital, based on a finding that the nursing staff breached the standard of care required by failing to instruct Stephanie in the importance of maintaining the bed rails in the up position. A review of the trial transcript reveals that Latigue failed to satisfy the first element of her medical malpractice claim in that she failed to establish the standard of care applicable to nurses in this locale pertaining to this situation.

There are instances when a plaintiff need not introduce expert testimony in order to satisfy her burden of proof. Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228. This refers to cases of obvious negligence, such as where the doctor amputates the wrong leg, leaves a sponge in the patient, or drops a knife, scalpel, or acid on the patient. Id. In those instances, a lay person can infer negligence without the aide of expert testimony. Id. If the matter does not involve an instance of obvious negligence, then the plaintiff may still establish the standard of care and breach thereof through the testimony of the defendant’s expert witness. Sandifer v. Wise, 00-293 (La.App. 4 Cir. 2/7/01), 780 So.2d 1099.

Here we do not find that this was an instance of obvious carelessness. Thus, Latigue was still required to prove the standard of care applicable and the resulting breach therefrom. A review of the record reveals that she failed to introduce any expert testimony pertaining to the use of bed rails with patients such as Thomas. However, Memorial Hospital introduced the testimony of Gerald Bryant, RN, an expert in nursing, who stated that Thomas was a high risk patient for falling, who 17required all four rails in the up position. He further stated that having only two rails up would probably be a breach of the standard of care by the nursing staff. Thus, we find that Latigue established that the local standard of care would require that a patient in Thomas’ condition should have all four bed rails in the up position.

However, Latigue failed to establish that the standard of care requires that the nursing staff instruct the family members as to the position of the bed rails. Bryant did testify that generally nurses do not instruct family members on the use of the bed rails. He stated:

Generally, you don’t tell people. I mean, you don’t tell them not to touch side rails, things like that. Most families won’t do that kind of thing, because you have so many family members in and out of the room in the process of a day. So, you couldn’t have contact with everyone who is going to do that. Otherwise, you would have to have someone stationed there to touch base with everybody who goes into a room and tell them what they can and can’t do. So, no, you don’t do that.

Dr. Arthur Primeaux, a member of the medical review panel, testified that they did not find that the nursing staff breached the applicable standard of care in this instance. He stated that the review panel did not want to make a credibility call between Stephanie’s version and that recounted by Mattinson. Instead, he stated that they reviewed the record as a whole before reaching a decision that Memorial Hospital met the appropriate standard of care in this matter.

Accordingly, we find that Latigue failed to present evidence establishing the standard of care applicable to the nursing staff at Memorial Hospital with regard to the need to instruct family members in the use of bed rails. Nor do we find that the testimony presented by Memorial Hospital satisfies her burden of proof. Thus, we find that the trial court erred in finding that Memorial Hospital was twenty percent |Rat fault in causing Thomas’ injury. The judgment of the trial court is reversed and Latigue’s claims against it are dismissed.

Pursuant to this finding, the remaining assignments of error are rendered moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and judgment is rendered dismissing the action of the plaintiff-appellee/appellant, Betty Latigue, against the defendant-appellant/appellee, Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital. The costs of this appeal are assessed to Latigue.

REVERSED AND RENDERED.


author: 11 SULLIVAN, Judge.

text:
    STATE of Louisiana v. EXPUNGED RECORD NUMBER 249,044.
    No. 02-589.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      James C. Downs, District Attorney, Alexandria, LA, for Plaintiff/Appellant, State of Louisiana.
    W. Jay Luneau, Luneau Law Office, Alexandria, LA, for Defendant/Appellee, Expunged Record Number 249,044.
    H. Bradford Calvit, Attorney at Law, Alexandria, LA, for Sheriff William Earl Hilton.
    Court composed of NED E. DOUCET, JR., Chief Judge, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   11 SULLIVAN, Judge.

The State of Louisiana appeals the trial court’s judgment which orders the destruction of Appellee’s felony arrest records. We reverse.

Facts

On January 9, 1998, Appellee was arrested for obstruction of justice, a violation of La.R.S. 14:130.1, and false personation of a peace officer, a violation of La.R.S. 14:112.1. On July 21, 1999, he filed a motion for expungement in which he prayed that his arrest records be expunged and destroyed. The District Attorney did not oppose the request for expungement and stated in correspondence to Appellee that the charges would not be prosecuted. After a hearing, the trial court granted Ap-pellee’s request that his arrest records be expunged, but denied his request for destruction of the records.

On February 2, 2000, Appellee filed a rule to modify judgment on rule or, alternatively, petition for declaratory judgment in which he sought destruction of the previously expunged records or a declaration that La.R.S. 44:9(B) is unconstitutional. The District Attorney filed exceptions and an answer to the rule. After a hearing, the trial court ordered that “all agencies and law enforcement officers ... destroy by incineration, any and all records, including mug shots, fingerprint cards, and rap sheets held by them in connection with the arrest of [Appellee] which occurred on the 9th day of January, 1998.” The District Attorney appeals.

Discussion

The trial court granted Appellee’s request for destruction of his felony arrest records, stating “because there was no action initiated by the district attorney’s office in the furtherance of the arrest or conviction ... the record is eligible at this point to |2be destroyed.” La.R.S. 44:9 provides for the expungement and destruction of misdemeanor amst records in two instances. One instance is when “[t]he time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted.” La.R.S. 44:9(A)(1). There is no such provision regarding felony arrest records. La.R.S. 44:9 provides for the expungement of felony arrest records in particularized instances, but it does not provide for the destruction of felony arrest records.

Expungement does not equate to destruction. In State v. Savoie, 92-1586, 93-1955, p. 3 (La.5/23/94); 637 So.2d 408, 410, the supreme court held “that the word ‘expungement’ is distinct from the word ‘destruction’ and that the two words cannot be used interchangeably or to mean the same thing. Public records which may be ‘expunged’ need not be ‘destroyed.’ LSA-R.S. 44:9 C(2), E; C.Cr.P. Art. 893 F.” This distinction was codified by Acts 1999, No. 1111, § 1, which added subpart G to La.R.S. 44:9, which provides: “ ‘Expungement’ means removal of a record from public access but does not mean destruction of the record.”

It is well settled that a trial court’s findings of fact will not be disturbed on appeal unless they are manifestly erroneous or clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). However, when a trial court’s decision was based upon “its erroneous interpretation or application of law rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference.” Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-72 (La.1983). The trial court’s grant of Appellee’s request for destruction of his felony arrest records was a misapplication of the law. Therefore, we reverse the judgment.

| ¿Declaratory Judgment

In his rule, Appellee alternatively sought a judgment declaring that La.R.S. 44:9’s provision for the destruction of misdemeanor arrest records, but not felony arrest records, is unconstitutional.

When the constitutionality of a statute, ordinance or franchise is assailed in a declaratory judgment action the attorney general must be served with a copy of the proceeding and he is entitled to be heard and/or, at his discretion, to represent or supervise the representation of the interests of the state in the proceeding. LSA-R.S. 49:257(B); LSA-C.C.P. art. 1880. In all other proceedings in which the constitutionality of a statute, ordinance or franchise is assailed, the attorney general should be served notice and/or a copy of the pleading and, at his discretion, be allowed to be heard and to represent or supervise the representation of the interests of the state in the proceeding. LSA-R.S. 49:257(B); see also LSA-R.S. 13:4448.

Vallo v. Gayle Oil Co., Inc., 94-1238, p. 7 (La.11/30/94); 646 So.2d 859, 864.

In his rule to modify judgment on rule or, alternatively, petition for declaratory judgment, Appellee requested service on the Attorney General, but there is no evidence in the record that service was made. Without proof of notice of service on the Attorney General, the issue of the constitutionality of La.R.S. 44:9 is not properly before this court. Accordingly, we remanded this matter to the trial court for further proceedings on this issue.

Disposition

The judgment of the trial court ordering the destruction of Appellee’s felony arrest records is reversed, and this matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . Pursuant to a motion and order for anonymity, Appellee will not be identified by name.


author: 11 JAMES F. McKAY III, Judge.

text:
    TRISTAR CONSTRUCTION CO., INC. v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 2001-CA-2282.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 15, 2003.

      Judith Otero, Richard L. Muller, Muller & Muller, Covington, LA, for Plaintiff/Appellant.
    Danatus N. King, New Orleans, LA, for Housing Authority of New Orleans.
    Daniel Lund, III, James A. Oswald, Lloyd N. Shields, Shields Mott Lund L.L.P., New Orleans, LA, for Yeates and Yeates Architects.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY).
   11 JAMES F. McKAY III, Judge.

The appellant, Tri Star Construction Co., Inc. (Tri Star), appeals the trial court’s judgment of July 27, 2001 granting the defendants’, The Housing Authority of New Orleans (HANO), Yeates and Yeates Architects (Yeates), and Ventana Property Management, Inc. (Ventana), joint motion for summary judgment and dismissing plaintiffs case.

On April 23, 1993, Tri Star, as the general contractor, entered into a construction contract with HANO to replace the roof systems on thirty-five buildings at the C.J. Peete Housing Development, for a contract price of one million six hundred fourteen thousand five hundred seven dollars. ($1,614,507.00). On November 25, 1991, HANO had contracted with Yeates as the architect to draft drawings and specifications for the project. HANO’s representative during the early phases of the project was C.J. Brown Property Management, Inc. (C.J. | ¡.Brown), whose successor in interest is Ventana. C.J. Brown was no longer working at the HANO offices nor involved with the project after September 30,1994. As part of the contract Tri Star was to follow the specifications provided by Yeates. During the performance of the construction contract on the C.J. Peete Housing Development, Tri Star encountered a problem with the installation of the flat roof in that water was pooling on the roofs instead of flowing into the drains. On April 21, 1995, HANO terminated Tri Star’s contract for failure to perform the work in accordance with plans and specifications and failure to resolve the pooling problem. Pursuant to this termination, Tri Star filed suit on June 7,1995. HANO filed an exception of no right of action, which was granted by the trial court but which this Court reversed in 1998. In response, on June 5, 2001, the defendants filed a joint motion for summary judgment, which the trial court granted on July 30, 2001; this is a final appealable judgment pursuant to La. C.C.Pro. art. 1915(B).

The issues for review before this Court are whether or not the trial court erred in granting the defendants’ joint motion for summary judgment and whether or not the trial court erred in failing to hold that the plaintiff is entitled to statutory immunity pursuant to La. R.S. 9:2771.

| ¡¡Under the most recent amendments to the Summary Judgment law, La. C.C.P. art. 966, this Court reviews summary judgment de novo, considering the same standards applied by the trial court in deciding a motion for summary judgment. Plauche v. Bell, 99-0707, (La.App. 4 Cir. 5/3/00), 762 So.2d 130, 133. Generally, a Motion for Summary Judgment may only be granted “[ajfter adequate discovery or after a case is set for trial.” La. C.C.P. art. 966(C)(1). La. C.C.P. art. 966(B) requires the party seeking summary judgment, who has the burden of proof, to show two things: (1) that “no genuine issues as to material fact” exist, and (2) that he “is entitled to judgment as a matter of law.” In order to meet his burden of proof, the mover is not required “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.” La. C.C.P. art. 966(C)(2). If the movant meets its burden of proving these two issues, the burden shifts to the party opposing the motion to “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” Id. Summary judgment is now a favored procedure in Louisiana. La. C.C.P. art. 966(A)(2).

The plaintiff complains that the trial court erred in granting the defendants’ joint motion for summary judgment concluding that no genuine issues of material fact existed. Plaintiff essentially argues that the trial court erred in not finding that there were genuine issues of facts in question, which would preclude a granting of a motion for summary judgment. The plaintiff asserts that the trial court failed to take into consideration the plaintiffs countervailing affidavits to those that the defendants presented to the court.

|4The affidavit of Cynthia Yeates sets forth the instances in which Tri Star failed to perform the work in accordance with the plans and specifications which Yeates provided to Tri Star. The failure to perform is predicated on Tri Star’s failure to verify site conditions prior to undertaking work on the project in violation of the “General Conditions of the Contract for Construction”, Clause 2, Paragraph (e), which provides:

The Contractor shall lay out the work from the base lines and benchmarks indicated on the drawings and be responsible for all lines, levels, and measurements of all work executed under the contract. The Contractor shall verify the figures before laying out the work and will be held responsible for any error resulting from its failure to do so.

The affidavits presented to the court are well founded and documented by the record thereby supporting the defendants’ motion for summary judgment. Clearly, the trial court was presented with countervailing affidavits which in its judgment favored the defendants’ position resulting in its ruling in the defendants’ favor. Plaintiff failed to produce factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial. Hence, Plaintiffs countervailing expert affidavits did not create a genuine issue of fact for trial. After carefully reviewing the record we concur with the trial court in this matter. There is no merit to plaintiffs argument.

Plaintiff also asserts that it is entitled to immunity pursuant to La. R.S. 9:2771. Plaintiff argues that there were flaws in Yeates’ original design to resurface the flat roofs, and that pursuant to La. R.S. 9:2771, the contractor is not liable for the defects caused by this flawed design.

In construction contracts, Louisiana law implies that the contractor will construct the work in a good and workmanlike manner, the work will be suitable | ¿for its intended purpose, and the work will be free of defects in workmanship or materials. Winford Co. v. Webster Gravel and Asphalt, Inc., 571 So.2d 802 (La.App. 2 Cir.1990). A contractor is not responsible, however, for defects caused by faulty or insufficient specifications furnished to the contractor. La. R.S. 9:2771; Tex-La Properties v. South State Ins. Co., 514 So.2d 707 (La.App. 2 Cir.1987). If the defect in the construction is caused by faulty or insufficient plans or specifications, the contractor is immune from liability upon constructing in compliance therewith, provided the specifications are not provided by him. Winford v. Webster, supra.

Plaintiffs reasoning for claiming statutory immunity is misguided. Despite plaintiffs complaint that the construction contract documents and specifications were unclear and ambiguous, the trial court made a factual determination and correctly held that the contract at issue was a performance specifications contract which contained provisions standard to a re-roofing contract.

The defendants argue that plaintiffs failure to follow the technical specifications in the contract required that Tri Star install a roofing system on the flat roofs with a minimum 1/8" slope per foot and its failure to do so resulted in the ponding of water on the roofs.

The technical specifications in Section 0700 expressly provide that the architect’s drawings are diagrammatical and may not show all the layers required to provide a 1/8" slope. Section 0700, 2.23(a) specifically required that the contractor shall provide as many layers of insulation as are required to achieve the minimum slope of 1/8" per foot. Furthermore, as provided by this section, the technical specifications provided that all depressions, holes, deformities, etc., shall be made smooth by the contractor prior to roof application. Section 0700, 3.11 |fiprovides that the contractor is to adjust the height of the new tapered insulation as required to align properly with the height of the existing roof drain.

These technical specifications were the paradigmatic performance specifications since they set forth an objective to be achieved, installation of a flat roof with a minimum 1/8" slope and smoothing all depressions, holes, and , deformities by the contractor prior to roof installation. These specifications clearly indicate that the onus was upon the contractor to exercise expertise and ingenuity to determine how the objective was to be achieved. The contractor failed to properly follow the required specifications, which resulted in pooling on the respective roofs. Furthermore, Tri Star failed to resolve the pooling problem thereby, breaching its obligations under contract, resulting in the termination of its contract with HANO with cause.

Clearly, the contract between the plaintiff and HANO was a performance specification contract and is therefore not entitled to statutory immunity pursuant to La. R.S. 9:2771. Plaintiffs argument is without merit.

For the above and foregoing reasons, we find no error in the judgment of the trial court. Therefore, this judgment is affirmed.

AFFIRMED.

      . Known as Project No. 48 P001 915.

      . The work to be performed under the contract included among other work, replacing roof systems on thirty-five buildings. Twenty of the roof systems were sloped/pitch roof systems consisting of asbestos shingles that were replaced with asphalt fiberglass shingles. The remaining fifteen buildings had flat roof systems consisting of a six-inch structural concrete roof decking covered with Vermiculite lightweight concrete and four ply coal tar pitch and slag ballast. These were to be replaced with a tapered roof system manufactured and pre-cut by an approved supplier, having dimensions specified in the contract documents, as verified by the contractor to the extent physically possible by actual filed check. The architect chose this tapered insulation system. This system would not work unless the contractor addressed the deck holes, depressions and varying slopes. Tri Star allegedly did not discover the conditions of the roof until the existing vermiculite was removed.

      .At the time of the contract for the project C.J. Brown was the authorized representative of HANO and managed the HANO properties.

      . Case No. 97-CA-1167.

      . 9:2771. Non-liability of contractor for destruction or deterioration of work
      No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.