author: PETERS, J.

text:
    Angel Sonnier McGEE v. OMNI INSURANCE COMPANY.
    No. 02-1012.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Rehearing Denied April 16, 2003.

      Tobin J. Eason, Weiss & Eason, New Orleans, LA, for Defendant/Appellant, Omni Insurance Company.
    M. Terrance Hoychick, Young, Hoychick & Aguillard, Eunice, LA, for Plaintiff/Ap-pellee, Angel Sonnier McGee.

      Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   PETERS, J.

In the matter now before us, Omni Insurance Company (Omni) appeals a trial court judgment awarding Angel Sonnier McGee damages, penalties, and attorney fees pursuant to La.R.S. 22:1220. For the following reasons, we reverse in part and affirm in part.

DISCUSSION OF THE RECORD

The litigation has as its origin a June 25, 1996 automobile accident which occurred in Eunice, Louisiana. On that day, a vehicle being driven by Jessica Bellard struck a vehicle being driven by Angel Sonnier McGee. On June 25, 1997, Ms. McGee filed suit to recover the damages she sustained in the accident, naming Ms. Bellard and Omni, Ms. Bellard’s liability insurer, as defendants. The liability insurance policy issued to Ms. Bellard by Omni provided liability coverage of up to $25,000.00 per person and $50,000.00 per accident.

After settlement negotiations were unsuccessful, Ms. McGee proceeded to trial against Ms. Bellard and Omni on February 15, 2000. After trial, the trial court rendered judgment in favor of Ms. McGee and against Ms. Bellard and Omni in the amount of $50,000.00 together with legal interest and costs of court, subject to Omni’s policy limits. Omni had previously deposited $25,000.00 in the registry of the court, and the judgment recognized a credit for that deposit. Thereafter, Omni paid the accumulated interest on the $25,000.00 deposit as well as the costs of court, but there remained an excess judgment against Ms. Bellard.

On May 23, 2000, Ms. Bellard and Ms. McGee entered into an agreement in which Ms. Bellard assigned to Ms. McGee her rights against Omni for “failure to provide a good faith defense to her.” In exchange for the assignment, Ms. McGee agreed to refrain from attempting to collect the judgment against Ms. Bellard until she | ¡.had exhausted all legal collection remedies against Omni. This agreement gave rise to the current litigation.

Using this assignment of rights, Ms. McGee filed suit against Omni on August 8, 2000, asserting that Omni had failed to provide a good faith defense to Ms. Bellard and that its failure resulted in the excess judgment against her. After trial, the trial court rendered judgment in Ms. McGee’s favor and against Omni, awarding Ms. McGee damages of $25,000.00 together with legal interest from the date of the filing of her original suit against Ms. Bel-lard, penalties of twice the amount of damages awarded together with legal interest from the date of judicial demand in the instant action, attorney fees in the amount of thirty-three and one-third percent of all sums recovered under the judgment, and specific expenses of $714.24. Additionally, the judgment provided that, in the event Omni was unsuccessful on appeal, the attorney fee would be increased to forty percent.

The evidence submitted at the January 4, 2002 trial consisted primarily of stipulations and documentary evidence. A review of this evidence reveals that few facts are in dispute. The record establishes that as early as March of 1997, Omni was aware that Ms. McGee had already incurred over $18,000.00 in special damages as a result of the June 25 accident. In correspondence to Omni dated March 5, 1997, Ms. McGee offered to settle her claim for $40,000.00. Apparently without even consulting its insured, Omni rejected the offer.

The parties continued to negotiate after suit was filed, and, by correspondence dated September 15, 1998, Ms. McGee’s counsel reduced her settlement offer to Omni’s $25,000.00 policy limit together with accrued legal interest from date of judicial demand. Omni responded to this offer on September 30, 1998, through a 13letter written by Thomas A. Bound, one of its claims adjusters. In that response, Mr. Bound stated that “OMNI WILL OFFER OUR POLICY LIMITS OF $25,000.00 AT THIS TIME. WE WILL NOT BE ABLE TO PAY ANY AMOUNT ABOVE OUR POLICY LIMITS IN SETTLEMENT OF THIS CLAIM.” By correspondence to Mr. Bound dated October 2, 1998, Ms. McGee’s counsel stated that its settlement offer would expire on October 10, 1998, and additionally stated: “So that there is no misunderstanding, the plaintiff is willing to release your insured for the payment of your policy limits plus legal interest and all court costs.” Mr. Bound responded on October 14, 1998, by informing Ms. McGee’s counsel in writing that Omni’s previously communicated offer to settle for only its policy limit would expire on December 14, 1998.

Mr. Bound’s refusal pay the accrued interest was not an act supported by Omni’s counsel of record. By correspondence dated October 14, 1998, Omni’s counsel advised Mr. Bound that Omni should “strongly consider” Ms. McGee’s offer to settle. This recommendation was again communicated to Mr. Bound by correspondence from Omni’s counsel dated October 26, 1998. Mr. Bound obviously declined to take this advice as no new offer to settle was forthcoming from Omni.

During settlement negotiations, Omni had little communication with its insured. Ms. Bellard submitted an affidavit into evidence wherein she asserted that Omni failed to inform her of any settlement offers prior to January 1,1999, failed to seek her opinion concerning settlement, and failed to inform her that Omni would tender its policy limits but would not pay the accrued legal interest. Additionally, she asserted:

Had [she] been notified by OMNI Insurance Group or its attorneys of the amount of medical bills [Ms.] McGee had incurred in October of |41998 ... and that [Ms. McGee] was willing to release [her] and OMNI in exchange for payment of the policy limits of $25,000 plus court costs and all legal interest due at the time, [she] would have demanded that OMNI settle the claim (for the amounts demanded by [Ms. McGee]) in order to protect [her] from the potential excess judgment which ultimately was taken against [her].

The earliest evidence of any communication between Omni and Ms. Bellard appears in the form of a notarized statement signed by Mr. Bound on February 8, 2001. In his statement, Mr. Bound asserted that he forwarded Ms. Bellard a letter dated December 3, 1998, that he talked to her on that same day, and that he “personally advised Ms. Bellard of the status of the negotiation including that Omni was going to pay its policy limits of $25,000, but not any legal interest pursuant to policy language.” He recalled speaking with Ms. Bellard “because he made notes of that conversation.” However, he did not produce the notes upon which these assertions were made. Additionally, the December 3, 1998 correspondence which Mr. Bound claims to have forwarded to Ms. Bellard did nothing to inform Ms. Bellard of the specific status of the litigation. It appears to be a form letter and stated the following:

WE ARE IN THE PROCESS OF INVESTIGATING THE ABOVE CAPTIONED LOSS. OUR INFORMATION INDICATES THE CLAIMS ARISING FROM THIS LOSS MAY EXCEED OUR INSURED’S POLICY LIMITS. OUR INSURED’S POLICY WITH OMNI PROVIDES LIABILITY LIMITS OF $25,000 PER PERSON AND $50,000 PER ACCIDENT FOR BODILY INJURY AND $25,000 FOR PROPERTY DAMAGE.
IF YOU HAVE COLLISION OR UNINSURED MOTORIST COVERAGE UNDER YOUR OWN INSURANCE POLICY, PLEASE NOTIFY YOUR INSURANCE CARRIER OF THIS LOSS AS SOON AS POSSIBLE. PLEASE MITIGATE THE DAMAGES ASSOCIATED WITH YOUR LOSS, THIS IS TO INCLUDE RENTAL, TOWING, STORAGE AND ETC. IF YOU HAVE ANY QUESTIONS CONCERNING THE CONTENTS OF THIS LETTER, PLEASE CONTACT ME AT THE NUMBER BELOW.

Apparently not satisfied with the advice of its trial counsel concerning |BsettIement, Omni sought an opinion on the issue from a member of a Shreveport, Louisiana law firm and was given a written response by a member of that firm on March 1, 1999. In that correspondence, the Shreveport attorney gave Mr. Brett LaFoy, an Omni employee identified as a “Litigation Specialist,” the following opinion:

[T]he insurer does owe a duty to its insured to pay policy limits plus legal interest prior to judgment in a situation where the plaintiff will accept same in settlement of all claims against its insured and in a case where there is no issue as to liability and it is substantially certain that a judgment will be rendered in excess of the policy limits. Although statutory law does not impose the obligation to pay interest prior to judgment, failure to do so could violate the insurer’s duty of good faith to its insured.

(Emphasis added.)

Despite this clear statement from the Shreveport attorney, Mr. LaFoy wrote Ms. Bellard the following letter the very next day, March 2,1999:

As you know, Angel McGee is presenting a bodily injury claim as a result of [the June 25 accident]. She has hired an attorney and filed suit. We have attempted to resolve this claim by tendering the bodily injury limits of $25,000 under Charles Bellard’s policy. Ms. McGee and her attorney have rejected this offer. We are now at a position to inquire if you are willing to contribute any money to attempt to .settle this claim.
If we are not able to settle this case, you may wish to hire legal counsel to represent your interests and for any judgement over the bodily injury limits of $25,000. While this case may have a value in excess of the available bodily injury limits, we will continue all efforts to resolve this claim within these limits and obtain a full release. Please carefully consider your options in this case. Please contact us at the number below once you have reached a decision.

(Emphasis added.)

By correspondence dated April 8, 1999, Mr. LaFoy informed Ms. Bellard of the following:

WE ARE WRITING YOU TO UPDATE YOU ON THE STATUS OF THIS CASE. THE PLAINTIFF ATTORNEY IS STILL DEMANDING I rYOUR POLICY LIMITS OF $25,000 PLUS INTEREST. UNDER YOUR POLICY, WE WILL PAY UPTO [sic] YOUR POLICY LIMITS OF $25,000. ANY JUDGEMENT OVER YOUR POLICY LIMITS OR INTEREST OWED WILL BE YOUR RESPONSIBILITY. YOU MAY WISH TO CONSIDER CONTRIBUTING SOME MONEY IN AN ATTEMPT TO SETTLE THIS CASE. YOU MAY WISH TO CONSULT SEPARATE LEGAL COUNSEL TO PROTECT YOUR INTERESTS,

(Emphasis added.)

Omni’s trial counsel continued to advise that Ms. McGee’s settlement offer be accepted. By correspondence dated April 9, 1999, Omni’s counsel informed Mr. LaFoy that it was his recommendation that “we simply pay the policy limits plus legal interest accrued to date to settle the [litigation].” In support of his recommendation, the attorney attached a copy of Hodge v. American Fidelity Fire Insurance Co., 486 So.2d 233 (La.App. 3 Cir.), writ denied, 489 So.2d 917 (La.1986), to the correspondence, a case previously cited to Mr. LaFoy by the Shreveport attorney. The attorney informed Mr. LaFoy that “there is nothing we really gain by depositing our policy limits into the registry of the court. Legal interest will continue to accrue from the date of judicial demand.... There would be no reason to deposit the policy limits plus interest, because we can simply settle the case on those terms.” Despite this opinion, Mr. LaFoy forwarded the policy limits to Omni’s counsel of record for deposit into the registry of the court on April 16,1999.

After the trial court rendered judgment in Ms. McGee’s favor, Omni appealed, asserting five assignments of error:

1. Omni was with probable cause in defending its position based on policy language typical of .all policies and which has not been ruled to be against public policy.
2. Omni was not arbitrary or capricious in attempting to resolve the underlying cause of action, when weeks after the plaintiffs first offer, Omni responded with an offer of roughly 90% of plaintiffs 17initial offer (which was policy limits).
3.Omni was in constant communication with its insured, Ms. Bellard; therefore, it was not in bad faith in handling the claim and its actions do not justify a claim for an excess judgment.
4. The trial court could not award attorney’s fees pursuant to R.S. 22:1220 even if the court finds Omni arbitrary, capricious and without probable cause.
5. Double damages pursuant to R.S. 1220 were not justified in this matter.

OPINION

Because the first three assignments relate to the question of good faith, we will consider them together. Louisiana Revised Statute 22:1220(A) provides that an insurer “owes to his insured a duty of good faith and fair dealing.” It further provides that “[t]he insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both.” Id. (emphasis added). In defining what act or acts constitute a breach of the duty of good faith and fair dealing, La.R.S. 22:1220(B) provides:

Any one of the following acts, if knowingly committed or'performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.

Further, “the wording and structure of [Acts 1990, No. 308, § 1, whereby La.R.S. 22:1220 was added] strongly suggest that the legislature intended Subsection B to |sconstitute an exclusive list of the types of conduct for which damages and penalties can be sought by insureds and third-party claimants pursuant to the statute. ... [T]he only acts which give rise to a cause of action for violation of La. R.S. 22:1220 are the specific acts enumerated in Subsection B(1)-(5).” Theriot v. Midland Risk Ins. Co., 95-2895, p. 7 (La.5/20/97), 694 So.2d 184, 188. That being the case, only La.R.S. 22:1220(B)(1) is applicable to the matter before us.

In its written reasons for judgment, the trial court concluded that Omni did not even inform Ms. Bellard of Ms. McGee’s September 15, 1998 settlement offer until November 15, 1998, or long after it had expired. The trial court further noted that from the very outset of the litigation Omni was aware that liability on the part of Ms. McGee was very likely and that a judgment would probably exceed the policy limits. Additionally, the trial court concluded that as of September 15, 1998, Omni was “aware that Ms. McGee had incurred in excess of $15,000.00 in medical bills and was also claiming over $6,000.00 in lost wages.” Additionally, the trial court determined the following:

[A] review of all correspondence to Ms. Bellard fails to indicate that she was ever told that her counsel believed that she would likely be found liable for causing the accident and that an excess judgment was likely to be rendered against her. She was never told that the medical expenses and lost wage claims alone, that were being claimed by McGee, exceeded her policy limits and she was never told that her policy did provide for the payment of legal interest on damage awards once judgment was rendered.

Equally damaging, the trial court concluded that Omni consistently ignored the advice of its legal counsel as well as the Shreveport attorney to the effect that failure to tender its policy limits and accrued interest violated its good faith obligation. Further, Omni specifically misrepresented its policy terms in Mr. LaFoy’s correspondence of April 8, 1999, wherein Mr. LaFoy informed Ms. Bellard that “ANY JUDGMENT ROVER YOUR POLICY LIMITS OR INTEREST OWED WILL BE YOUR RESPONSIBILITY.” Based on these and other factual findings, the trial court concluded that “the failure of Omni Insurance Company to settle, by payment of its policy limits plus the legal interest was arbitrary, capricious and in bad faith, and in total disregard of the interest of its insured, Jessica Bellard.” Specifically, the trial court found that Omni misrepresented its policy provisions, in violation of La.R.S. 22:1220(B)(1), in its April 8, 1999 correspondence to Ms. Bellard because it informed her that she would be responsible for the interest owed on any judgment rendered. “The determination that an insurer’s handling of a claim is arbitrary and capricious is a factual finding which may not be disturbed unless manifestly erroneous.” Calogero v. Safeway Ins. Co. of La., 99-1625, p. 5 (La.1/19/00), 753 So.2d 170, 173. We find that these factual findings are supported by the record, and we conclude that the trial court’s factual determinations are not manifestly erroneous or clearly wrong.

Although La.R.S. 22:1220 was enacted in 1990, Louisiana jurisprudence has long recognized that insurers must act in good faith when called upon to defend their insureds. Specifically, the jurisprudence establishes that “the insurer is the champion of its insured’s interests; that the interests of the insured are paramount to those of the insurer, and that the insurer may not gamble with the funds and resources of its policyholders.” Cousins v. State Farm Mut. Auto. Ins. Co., 294 So.2d 272, 275 (La.App. 1 Cir.), writ refused, 296 So.2d 837 (La.1974). The court in Domangue v. Henry, 394 So.2d 638, 640 (La.App. 1 Cir.1980), writ denied, 399 So.2d 602 (La.1981), stated:

Louisiana jurisprudence establishes that a duty is placed upon the insurer to consider the interest of the insured as paramount when an |inoffer to settle is made. The insurer has a duty to act in good faith and to deal fairly when handling and settling claims in order to protect the insured from exposure to excess liability.

Additionally, in Lafauci v. Jenkins, 01-2960, pp. 13-14 (La.App. 1 Cir. 1/15/03), 844 So.2d 19, 28-29, the first circuit recently stated:

A liability insurer is the representative of the interests of its insured, and when handling a claim against its insured must carefully consider not only its own self-interest, but also its insured’s interest, to protect the insured from exposure to excess liability. Smith v. Audubon Insurance Company, 95-2057, pp. 7-8 (La.9/5/96), 679 So.2d 372, 376. In fulfilling its role as the champion of its insured’s interests, a liability insurer owes its insured the duty to act in good faith and to deal fairly in handling claims. Id. In Smith, our Supreme Court articulated the following principles in determining whether a liability insurer has complied with that duty:
[T]he determination of whether the insurer acted in good faith turns on the facts and circumstances of each case. Of course, an insurer is not obligated to compromise litigation just because the claimant offered to settle a claim for serious injuries within the policy limits, and its failure to do so is not by itself proof of bad faith. The determination of good or bad faith in an insurer’s deciding to proceed to trial involves the weighing of such factors, among others, as the probability of the insured’s liability, the extent of the damages incurred by the claimant, the amount of the policy limits, the adequacy of the insurer’s investigation, and the openness of communications between the insurer and the insured. ...
Because the determination of a liability insurer’s bad faith failure to settle in excess judgment cases is so fact-intensive, great deference must be accorded to the trier of fact....
Id., 95-2057 at pp. 9-10, 679 So.2d at 377.
Even if a liability insurer is not in bad faith in its evaluation of a claim or in refusing to settle a claim, it may still be found to be in bad faith for failure to keep its insured informed of the status of settlement negotiations and other developments affecting his excess exposure. The failure to do so may expose it to liability to its insured for all or part of any excess judgment, as well as his attorney’s fees incurred in protecting himself and in prosecuting his claim for consequential damages against his insurer. See Maryland Casualty Company v. Dixie Insurance Company, 622 So.2d 698, 702-03 (La.App. 1st Cir.1993).

While Theriot, 694 So.2d 184, limits the specific acts of bad faith to those enumerated in La.R.S. 22:1220(B), we have no difficulty in concluding that Omni breached the duty imposed by La.R.S. 22:1220(B)(1). Misrepresentation can occur when an insurer either makes untrue statements to an insured concerning pertinent facts or fails to divulge pertinent facts to the insured. Both occurred in this case. As pointed out by the trial court in its reasons for judgment, Omni misrepresented the terms of its policy by informing Ms. Bellard that she would be responsible for any interest award, even after judgment. Additionally, Omni consistently failed to communicate the status of the claim to Ms. Bellard on a regular basis and, when it did communicate, failed to communicate the pertinent facts necessary for Ms. Bellard to consider in determining what was in her personal interest.

Even assuming, for purposes of argument, that all of the legal advice concerning settlement obtained by Omni was inaccurate, Omni took no steps to communicate to Ms. Bellard that she could be relieved of potential excess liability by simply paying a small amount of interest. In other words, because of Omnfs action or inaction, Ms. Bellard was never given the opportunity to mitigate her losses. Omni was clearly in bad faith in handling this claim. It placed its own interests in saving a few dollars of interest ahead of its insured’s interest and, in the face of facts overwhelmingly pointing to an excess judgment, ignored the legal advice of its own counsel. We find no merit in Omnfs first three assignments of error.

The remaining two assignments of error relate to the correctness of the attorney fee and penalty awards. The penalty provision, La.R.S. 22:1220(0), provides that “[i]n addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against | i2the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.” Omni does not dispute that Ms. Bellard sustained damages in the amount of $25,000.00 plus interest as a result of its actions.

In its fourth assignment of error, Omni argues that La.R.S. 22:1220(C) does not provide for the award of attorney fees and that, therefore, the trial court erred in awarding any amount for attorney fees. Ms. McGee agrees that La.R.S. 22:1220(0) does not specifically provide for attorney fees, but relies on this court’s holding in Credeur v. McCullough, 95-1415 (La.App. 3 Cir. 11/20/96), 685 So.2d 300, writ granted and judgment vacated, 96-3081 (La.6/30/97), 696 So.2d 996, judgment reinstated on remand, 95-1415 (La.App. 3 Cir. 10/29/97), 702 So.2d 985, for the proposition that an award of attorney fees is appropriate under the statute. However, the supreme court has held in Calogero, 753 So.2d at 174, that “La.R.S. 22:1220 does not provide for attorney fees.” Thus, we find merit in this assignment of error and reverse the award of attorney fees in its entirety.

Omni’s final assignment of error addresses the correctness of the trial court’s penalty award pursuant to La.R.S. 22:1220(C). As stated in Credeur, 702 So.2d at 987, Omni’s behavior “is exactly the type of behavior the legislature meant to dissuade when they enacted La.R.S. 22:1220.” Thus, we find no merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s award of attorney fees, but affirm the judgment in all other respects. We tax all costs equally between Angel Sonnier McGee and Omni Insurance Company.

AFFIRMED IN PART AND REVERSED IN PART.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Bobby G. MORRIS, Plaintiff-Appellee, v. Angela L. FLORES, et al., Defendants-Appellants. Angela Lucinda Flores, Plaintiff-Appellant, v. James McLamb, et al., Defendants-Appellees.
    Nos. 36,932-CA, 36,933-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2003.

      Downer, Hammond & Wilhite, by Kevin W. Hammond, Timothy W. Wilhite, for Defendant-Appellant, Angela L. Flores.
    Andrus & Doherty, by James P. Doherty, Jr., Opelousas, for Plaintiff-Appellee, Bobby G. Morris.
    Rice & Kendig, by Marshall Carl Rice, William F. Kendig, Jr., Lunn, Irion, Salley, Carlisle & Gardner, by Richard B. King, Jr., Shreveport, for Defendants-Appellees, Illinois National Ins. Co. and American International South Ins. Co.
    Cook, Yancey, King & Galloway, by James R. Sterritt, Edwin L. Blewer, Jr., Shreveport, for Defendants-Appellees Clarendon National Ins. Co., Caddo Parish Sheriff and James W. McLamb.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   STEWART, J.

In this suit resulting from an automobile collision, the trial court determined that the accident was caused by the combined negligence of Angela Lucinda Flores, who was found to have been 20 percent at fault, and James McLamb, who was found to have been 80 percent at fault. The trial court awarded Flores $12,500 in general damages. Flores appeals the award of damages, which she contends is abusively low. In answer to the appeal, McLamb, along with his employer and insurer, the Caddo Parish Sheriff and Clarendon National Insurance Company respectively, asserts error in the trial court’s allocation of fault. Upon review of the record, we find no error in the allocation of fault between McLamb and Flores. However, we find the trial court’s award of general damages to Flores to be abusively low, and we now raise that award to $25,000, the lowest figure which could have been awarded under the circumstances.

FACTS

On July 2, 1999, shortly before 10:00 p.m., a three vehicle accident occurred in the southbound lanes of travel along a rural, unlit section of Louisiana Highway 1, a four-lane divided highway with a speed limit of 65 miles per hour. The three vehicles involved in the accident included a Chevrolet S-10 pickup truck which was driven by Angela Flores, a Ford Crown Victoria patrol car which was driven by James McLamb, a deputy with the Caddo Parish Sheriffs Office, and a Ford Crown Victoria taxicab which was driven by Bobby Morris.

| ¡>Flores, who was seven months pregnant, had left her home on La. Hwy. 1 to meet friends. She was driving a truck which belonged to a friend and which she had permission to drive. Flores first traveled north along the highway. However, she began experiencing automotive difficulties after about a mile of travel. According to Flores, the truck kept “flooding out” and slowing whenever she pressed the accelerator. She decided to head back in the direction of her home, so she turned the vehicle and headed south along the highway. As Flores turned, she entered the left lane of travel in the southbound lanes. Flores realized that the vehicle would not make it much further, so she attempted to pull off to the left into the grassy median separating the four lanes of the highway, rather than attempt to cross to the right shoulder and risk the vehicle stopping between the lanes of travel. At this point, she was driving 10 miles per hour. As she was maneuvering to get fully into the median, she was hit from the rear by McLamb.

McLamb, a deputy with the Caddo Parish Sheriffs Office, was traveling south along the highway and was about to get off duty for the evening. He heard over the radio that another officer had stopped a vehicle and that the stop might involve a rape suspect. McLamb decided to assist that officer, so he began driving at about 75 to 80 miles per hour. As he entered the four lane portion of La. Hwy. 1, he passed a vehicle and spotted another officer who had made a vehicular stop. McLamb testified that he let that officer know over the radio that he was available to assist if needed, and that he began slowing his speed in case he needed to turn around. McLamb Lsaw a taxi ahead of him in the right lane. McLamb testified that he entered the left lane to go around the taxi and that he glanced over to the taxi because he thought he might recognize the driver. At that moment, McLamb collided into the rear of Flores’ truck. McLamb never saw Flores’ truck prior to impact and did not know what he hit until after the accident. The force of the impact caused both vehicles to flip over. McLamb’s vehicle also spun around and hit Morris’s taxi one or more times.

Bobby Morris, the driver of the taxi, was traveling south along the highway on his way to work. His speed was about 55 miles per hour. Morris testified that he was traveling in the left lane when he noticed McLamb’s vehicle approaching “real fast” from the rear. Morris immediately moved over to the right lane. Morris saw Flores’ truck exiting the left lane. He noticed the rear lights of the truck blink and believed this to be the hazard lights. He described the position of the truck as being at an angle, with the front portion off the road and the back portion at the yellow line. He further described the rear of the truck as being on the pavement but not on the highway, and he testified that it was not blocking the lane of travel. He believed he was two or three car lengths away from the truck when he noticed it. As McLamb’s vehicle came up beside him, Morris tried to pull further to the right. He heard the impact of the collision between McLamb and Flores, but he did not see it occur. Morris’s vehicle was hit by McLamb’s vehicle as it spun upside down on the highway.

Claims were asserted against each of the parties involved in the accident and heard in a bench trial. In addition to the testimony of the 14parties, the trial court heard from other witnesses. Chrystal Livingood and Tiffanye Hebert were traveling together along La. Hwy. 1, and observed McLamb traveling at a high rate of speed along the highway prior to the accident. Neither saw the accident occur, but they did stop to offer assistance.

Sheila Hostnick, a deputy with the Cad-do Parish Sheriffs Office, was called on direct examination by counsel for Bobby Morris. Hostnick was on patrol at the time of the accident and responded to the accident scene. Her testimony, which was based on her investigation of the accident and statements made by the parties at the time of the accident, largely corroborated the parties’ version of events. When called to the stand again on behalf of the defense by the Caddo Parish Sheriff, Clarendon National Insurance Company, and McLamb, Hostnick recalled Flores stating at the time of the accident that she did not have permission to drive the truck and that she was warned that the truck had mechanical problems. However, there was nothing in the police reports to corroborate this remembrance on the part of Hostnick, and Hostnick had failed to recall this information in her earlier testimony when questioned about statements made by the parties. Expert testimony was also offered by the Caddo Parish Sheriff, Clarendon, and McLamb to show that Flores’ truck was actually blocking part of the left lane of travel and that McLamb’s speed was not in excess of the posted speed limit.

From the testimony, the trial court found that Flores entered the left southbound lane of travel after turning around due to mechanical problems, |fithat she was only able to travel 10 miles per hour, and that she was traveling partially in the left lane and partially in the median. The trial court further found that Morris was traveling in the right southbound lane at about 55 miles per hour, and that McLamb approached in the left southbound lane of travel at about 65 to 70 miles per hour. The trial court concluded that as McLamb passed by Morris, he looked to his right to see if he recognized Morris, and “never saw Flores’ vehicle until just before the impact.” The trial court determined the accident to have been caused by the combined negligence of McLamb and Flores, whom he assigned with 80 percent and 20 percent of the fault respectively. The trial court awarded general damages to Morris, McLamb, and Flores in the amounts of $7,500, $10,000, and $12,500 respectively. Judgment was rendered on June 25, 2002, in accordance with the written findings and reasons for judgment.

Following the .judgment, Flores appealed the award of general damages, which she claims is abusively low considering her physical injuries and fear for the life of her unborn child, which she experienced as a result of the accident. McLamb, the Cad-do Parish Sheriff, and Clarendon answered the appeal to challenge the allocation of fault. They argue that a greater percentage of fault should be allocated to Flores and that some fault should be allocated to Morris.

DISCUSSION

Allocation of Fault:

The trier of fact is required to compare the relative fault of the parties in assessing liability. In allocating fault, the trial court must consider the [^nature of each party’s conduct and the extent of the causal relationship between that conduct and the damages claimed. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); McCullin v. U.S. Agencies Casualty Ins. Co., 34,661 (La.App.2d Cir.5/9/01), 786 So.2d 269. Factors which may influence the degree of fault assigned to each party include: (1) whether the conduct resulted from inadvertence or involved an awareness of danger; (2) how great a risk the conduct created; (8) the significance of what the actors sought by the conduct; (4) the capacities of the actors, whether superior or inferior; and (5) any extenuating circumstances which might require the actors to proceed in haste, without proper forethought. Watson, supra; McCullin, supra. The law of comparative fault is applicable in cases involving automobile accidents. Ortigo v. Merritt, 488 So.2d 1051 (La.App. 2d Cir.1986); Moore v. Rowland, 32,644 (La.App.2d Cir.3/1/00), 753 So.2d 411.

The trial court’s apportionment of fault is a factual determination subject to the manifest error standard of review. Moore, supra; Williams v. City of Monroe, 27,065 (La.App.2d Cir.7/3/95), 658 So.2d 820, writ denied, 95-1998 (La.12/15/95), 664 So.2d 451, and 95-2017 (La.12/15/95), 664 So.2d 452.

McLamb argues that the trial court erred in failing to allocate a greater percentage of fault to Flores and in failing to allocate some fault to Morris. With regard to Morris, nothing in the record establishes fault on his part in causing the accident. We find no error in the trial court’s failure to allocate any fault to Morris.

7 A motorist’s duty of care includes the duty to keep his vehicle under control and to maintain a proper lookout for hazards. Williams v. City of Monroe, supra. A motorist must use such diligence and care in the operation of his vehicle as is commensurate with the circumstances. Edwards v. Horstman, 96-1403 (La.2/28/97), 687 So.2d 1007. To avoid liability, a following motorist who rear-ends another vehicle must prove he was not at fault by establishing that he had his vehicle under control, closely observed the lead vehicle, and followed at a safe distance under the circumstances. McCullin, supra; Chambers v. Graybiel, 25,840 (La.App.2d Cir.6/22/94), 639 So.2d 361, writ denied, 94-1948 (La.10/28/94), 644 So.2d 377. The following motorist may also avoid liability by showing that the lead motorist negligently created a hazard which he could not reasonably avoid. McCullin, supra; Boggs v. Voss, 31,965 (La.App.2d Cir.6/16/99), 741 So.2d 139.

McLamb was in the position of the following vehicle because he came from behind and rear-ended Flores’ vehicle. Flores was driving a disabled vehicle at a very slow rate of speed and was attempting to exit onto the median from the left lane of travel when she was hit from behind. McLamb argues that this was not a typical rear-end collision because he was not closely following Flores and she was not proceeding lawfully. He claims the Flores’ vehicle was not properly illuminated and that she should have been in the right lane of travel instead of blocking the left lane or attempting to enter the median. Morris argues that Flores created a hazard that he could not reasonably avoid.

s By allocating twenty percent of the fault to Flores, the trial court considered her negligence in causing the accident. However, the trial court determined that the greater percentage of fault belonged to McLamb. We find no error in this determination. Flores’ vehicle was disabled, so she attempted to maneuver it off the highway when she realized that she could not go further after turning around to return home. Although McLamb argues that Flores’ vehicle was not properly illuminated, Morris testified that he saw lights blinking on Flores’ vehicle. Morris, who was driving at least 50 to 55 miles per hour, saw Flores’ vehicle and realized that there was a problem. McLamb simply did not see Flores’ vehicle at any time prior to impact.

By his own testimony, McLamb established that he was not observant of the lane of travel ahead of him. Instead, his attention was focused on Morris’s vehicle, which McLamb believed he recognized. McLamb did not even know what he had hit until he was told after the accident. McLamb’s claim that Flores created a sudden emergency or a hazardous condition which he could not have reasonably avoided presupposes that he saw the hazard ahead of him and could do nothing to prevent the collision. However, the record clearly establishes that he did not see Flores, because he was not paying attention to the lane of travel before him while he was looking over to Morris. The accident occurred at night on an unlit section of the highway. McLamb had been traveling at a high rate of speed shortly before the accident occurred. He was also focused on the possibility of having to turn around to assist another officer on a vehicular stop. Under |3these circumstances, McLamb should have exhibited a heightened awareness of his surroundings so as to detect any hazards along the roadway and operated his vehicle accordingly. For these reasons, we find no error in the trial court’s allocation of fault.

Damages:

Flores asserts that the trial court’s award of general damages in the amount of $12,500 is abusively low and does not make her whole considering the nature and extent of her injuries.

The trial court has much discretion in awarding damages in tort cases. La. C.C. art. 2324.1. Because of this vast discretion granted the trial court, an appellate court should rarely disturb an award of general damages. Only when the record clearly shows that the trial court abused its discretion in awarding damages in either direction beyond that which a reasonable trier of fact would assess for the effects of a particular injury on a particular party under the particular circumstances should an appellate court either increase or decrease the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Hunt v. Safeway Ins. Co., 35,306 (La.App.2d Cir.12/5/01), 804 So.2d 724; Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 2001-2582 (La.12/14/01), 804 So.2d 647.

Once an abuse of discretion is shown by an articulated analysis of the facts, examination of prior awards in similar cases is proper. An abusively low award is then raised to the lowest amount the trier of fact could have | reasonably awarded. Moody v. Blanchard Place Apartments, supra. To determine whether an award is inadequate, the evidence must be viewed in the light most favorable to the defendant. McCullin, supra; Manuel v. State Farm Mut. Auto. Co., 30,765 (La.App.2d Cir.8/19/98), 717 So.2d 277.

The trial court found that Flores’ injuries included treatment for two lacerations, one of which required sutures; a two-night hospitalization for observation with regard to possible early delivery; referral to physical therapy for soft tissue injury pain and discomfort; complaints up to April 11, 2000, with treatment for pain in her neck, left scapula region, and tingling and numbness into her left arm; and consultations regarding scar revision surgery which established that she would have residual scarring on her chin.

Flores testified that she was very concerned for her baby’s safety after the accident. The baby’s heartbeat could not be detected by the paramedics. Once at the hospital, there were concerns that the accident may have torn her placenta, a condition that could have required a Cesarian section and endangered the life of both mother and child as evidenced by consent forms signed by Flores while hospitalized. Flores testified that she began having early contractions after the accident and that she was given medication to slow the contractions. She also testified that she delivered the baby one month early because she kept having pain and soreness that could not be treated with pain medications during the pregnancy. Because of the soft tissue injuries of the neck and shoulder and resulting soreness, Flores was advised not to breast-feed her baby.

InFkmes suffered two facial lacerations in the accident. One was a stellate laceration extending from the corner of her mouth down to her chin. There were several branches to this laceration. Flores has permanent scarring from the laceration. Two consultations with cosmetic surgeons concluded that a scar revision procedure might result in some improvement but would not remove the scarring. Flores testified that she must now wear a sunblock and special make-up to cover the scar. She testified that the scar is obvious and that people are always asking about it.

An articulated analysis of the facts as set forth in the record and viewed in the light most favorable to the defendants shows that the trial court abused its discretion in awarding only $12,500 in general damages to Flores. This amount is not sufficient to compensate this particular plaintiff, for her particular injuries under the particular circumstances of this case. Flores’ vehicle was hit from behind with violent force which caused both her vehicle and McLamb’s vehicle to flip over. Flores, who was seven months pregnant and covered with blood, crawled from her crumpled truck and was transported by ambulance to LSUMC. She feared for the well-being of her unborn child, and the accident impacted his birth and her ability to breast-feed him. Flores will also be scarred for life as a result of the stellate facial laceration sustained in the accident. Under these circumstances, we must determine what is the lowest amount which the trial court could have reasonably awarded this plaintiff for the laceration, soft tissue injuries, and pregnancy-related effects of the accident.

Lain reviewing prior awards, we found some cases that awarded damages for mental anguish or fear of the effect of the accident on a pregnancy and other cases dealing with facial lacerations and scars. Pregnancy-related cases include Whatley v. Jones, 157 So.2d 351 (La.App. 3d Cir.1963), in which a woman, who was seven months pregnant at the time of the accident, received $5,000 in general damages when the accident resulted in premature labor pains and premature delivery; Gomez v. Galmiche, 433 So.2d 386 (La.App. 4th Cir.1983), in which a woman, who was approaching her third trimester of pregnancy when involved in an automobile accident, received $12,000 in general damages when she suffered knee and shoulder pain which could not be treated with medication due to her pregnancy, and experienced fear and anxiety about the baby’s health during the remainder of her pregnancy; and Gagnet v. Zummo, 487 So.2d 721 (La.App. 5th Cir.1986), in which a pregnant woman received $10,000 in general- damages when, as a result of an automobile accident, she suffered a neck and back injury which could not be adequately treated with medication due to the pregnancy, groin pain, and fear over the health of her child which resulted in a prolonged period of labor.

Similar cases in which general damages were awarded for facial scars include Barillas v. Carrion, 96-746 (La.App. 5th Cir.3/25/97), 692 So.2d 1217, in which a woman received $11,000 in general damages as a result of injuries sustained in a car accident, including a lip laceration with residual scarring of her chin, neck strain, back strain, and headaches; Neason v. Transit Managment of Southeast Louisiana, Inc., 2000-1271 (La.App. 4th Cir.4/18/01), 789 So.2d 31, in which a child injured in a automobile accident received $20,000 in general damages for facial lacerations which required stitches and left permanent scars about which he was sometimes teased; and Hunt v. Safeway Insurance Company, 35,306 (La.App.2d Cir.12/5/01), 804 So.2d 724, in which a woman involved in an automobile accident was awarded $17,500 in general damages when she sustained a laceration of her eyelid which resulted in permanent scarring and damage to her eyelashes.

The damages awarded in these six cases for either facial lacerations and scarring or pregnancy-related injuries with soft tissue injuries either equal or exceed the total damages awarded in the case sub judice. Flores suffered the full range of injures mentioned in the cases cited above, including facial lacerations with scarring, soft tissue injuries which could not be effectively treated with pain medication during her pregnancy and which prevented her from breast-feeding the baby, and temporary fear for the life of her unborn child. Under the particular circumstances of this case, we find that the lowest amount the trier of fact could have reasonably awarded Flores to be $25,000 in general damages. Accordingly, we amend the trial court’s judgment to increase Flores’ general damages award to $25,000.

CONCLUSION

For the reasons mentioned, we affirm the trial court’s judgment, except as to the award of general damages to Angela Flores, which we amend to increase the award to $25,000. Costs are assessed to the | udefendants-appellees, James McLamb, Caddo Parish Sheriff, and Clarendon National Insurance Company.

AMENDED, AND AFFIRMED AS AMENDED.

      . At trial, Angela Flores, who had married since the time of the accident, was referred to as Angela Leach. This opinion will refer to her as Angela Flores, the name generally used in the suit filings.


author: GASKINS, J.

text:
    H.L. RICHEY, et al., Plaintiffs-Appellees, v. Jeff A. MOORE, et al., Defendants-Appellants.
    No. 36,785-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2003.

      Klotz, Simmons & Brainard by David Klotz, Shreveport, for Defendanb-Appel-lant, Jeff A. Moore, Tammy Hancock Moore, T & M Oil Company and T & M Production.
    Charles W. Strickland, Shreveport, for Defendant-Appellant, Vernon Monk and Marcia Pierce Monk.
    Lemle, Kelleher, Barlow & Hardtner by Michael B. Donald, Shreveport, for Appel-lees.
    Before BROWN, GASKINS and KOSTELKA, JJ.
   GASKINS, J.

The defendants, Jeff A. Moore, Tammy Hancock Moore, Vernon Monk, Marcia Pierce Monk Free, T & M Oil Company, and T & M Production, appeal a trial court judgment granting $50,000.00 in attorney fees to the plaintiffs, H.L. Richey and his wife, Marilyn Richey, and K.F. Young and his wife, Gloria Young, in a dispute over obligations under the transfer of an oil and gas lease. For the following reasons, we reverse the trial court judgment.

FACTS

In June 1984, the plaintiffs assigned to the defendants all their right, title and interest in two oil and gas leases. One of those leases, the W.E. Hall lease, is the subject of the present lawsuit. According to the plaintiffs, the defendants took over the operation of the leases. The defendants then ceased operation of the W.E. Hall lease (lease) and removed equipment from the property, but did not properly plug or abandon the wells on the lease. According to the plaintiffs, the defendants also failed to file necessary documentation with the Louisiana Office of Conservation (Office) to reflect the change in record ownership of the lease to the defendants.

Because H.L. Richey was still the registered owner of the lease, on June 18, 1998, the Office noted that there had been no production from the lease in a number of years. The Office demanded that the wells be plugged and abandoned, equipment be removed, and pits be filled. Failure to comply with the order would subject the plaintiffs to a substantial fine.

|2The plaintiffs filed the present suit on October 24, 1996, seeking a declaratory judgment that the defendants were the owners of the lease and were responsible for plugging and abandoning the wells. The petition was later amended to allege that the defendants breached their obligation under the assignment of the lease by failing to file a change of ownership with the Office and in failing to restore the lease to its original condition, as near as practicable, including the obligation to plug wells and abandon the lease in accordance with applicable governmental rules and regulations. The plaintiffs sought a judgment ordering the defendants to perform their obligations under the assignment and also sought to recover expenses and attorney fees under the indemnity or hold harmless clause of the assignment agreement.

The defendants answered, claiming that the lease had been nonproductive for more than 60 days prior to June 1984, and therefore the lease had expired before the assignment of rights. According to the defendants, the expiration of the lease operated as a bar to recovery by the plaintiffs from the defendants.

The plaintiffs filed a motion for partial summary judgment, claiming that the assignment agreement demonstrated that the defendants were obligated to the plaintiffs. The plaintiffs also sought to strike an affidavit by one of the defendants. The trial court partially granted the motion to strike and denied the motion for partial summary judgment on May 22, 2001.

Trial on the merits was held January 10-11, 2002. On March 15, 2002, the trial court signed and filed a judgment, granting declaratory | ^judgment in favor of the plaintiffs and against the defendants. The court found that the lease was in full force and effect at the time of the assignment of rights. The defendants were found to be the owners and operators of the lease and assumed all responsibilities for the lease as of June 6, 1984, as if they had filed the necessary documents with the Louisiana Department of Natural Resources, Office of Conservation.

The court found that the defendants were obligated to restore the lease to its original condition, as near as practicable, including the obligation to plug and abandon all wells, close all existing pits, and clean up all abandoned oil field equipment located on the lease in accordance with applicable rules and regulations. The court also found that, under the terms of the agreement, the defendants were obligated to protect, indemnify, and hold the plaintiffs harmless from any and all losses, liability, fines, penalties, claims, costs, and expenses imposed or which might be imposed with respect to the lease. The court ordered the defendants to pay the plaintiffs $50,000.00 in attorney fees, based upon a finding that attorney fees were recoverable under the indemnification clause of the lease assignment.

The defendants filed a motion for new trial on the issue of attorney fees; the motion was denied by the trial court on April 29, 2002. The defendants then appealed the trial court judgment, limited solely to the issue of attorney fees.

| ATTORNEY FEES

On appeal, Jeff A. Moore, Tammy Hancock Moore, T & M Oil Company, and T & M Production (the Moores) are represented by the same attorney who represented all the defendants at trial. The remaining defendants, Vernon Monk and Marcia Pierce Monk Free (the Monks), are represented by separate counsel. All of the defendants assert that the trial court erred in taxing them with attorney fees on the basis of the indemnity provision of the assignment of rights executed in June 1984. They also contend that, because the indemnity provision did not specifically state that it provided for attorney fees, the trial court could not award them.

The Monks additionally assert that this is a case of a breach of contract and not one to enforce an indemnity agreement. They claim that indemnity is the reimbursement to one who has discharged the obligation of another. The Monks urge that under indemnity, the allowance of attorney fees is limited to the defense of the claim indemnified against and that no recovery can be had for attorney fees in establishing the right to indemnity. They contend that the plaintiffs in this case have not sustained a loss. The plaintiffs have not paid damages to a third person for whom they are entitled to be reimbursed or made whole. The Monks contend that because there was no original claimant in this case that the plaintiffs were required to make whole, the indemnity provision is not triggered.

In the alternative, the defendants argue that the amount of attorney fees awarded was excessive. The plaintiffs answered the appeal, seeking |Badditional attorney fees arising from the motion for new trial and in defense of the appeal.

As a general rule, attorney fees are not allowed except where authorized by statute or contract. Nassif v. Sunrise Homes, Inc., 1998-3193 (La.6/29/99), 739 So.2d 183. See also Curtis v. Curtis, 28,698 (La.App.2d Cir.9/25/96), 680 So.2d 1327.

In this case, there is no statute allowing the award of attorney fees. The judgment granting attorney fees was based upon the indemnity or hold harmless clause in the lease agreement. That provision is as follows:

Assignee hereby assumes all the obligations and responsibilities of Assignors under the terms of said leases and under the rules, regulations or laws of any government or regulatory agency having jurisdiction and agrees to protect, indemnify and hold Assignors, their agents, employees, heirs and assigns harmless from any and all losses, liabilities, fines, penalties, claims, costs and expenses imposed upon them with respect to the property herein conveyed whether such arose heretofore or whether such arise hereafter.

This provision does not specifically provide for the award of attorney fees in enforcing the indemnity provision. However, the plaintiffs cite the case of Curtis v. Curtis, supra, in support of their position that, under a hold harmless agreement, an obligor is liable for reasonable attorney fees incurred by the obligee, even though the obligatory provision does not specifically authorize attorney fees. The defendants urge that the Louisiana Supreme Court case of Nassif v. Sunrise Homes, Inc., supra, abrogates our holding in Curtis. We find that these cases are distinguishable from each other and from the facts in the case sub judice.

|fiIn Curtis, a former husband and wife sought to partition their former community property. In the partition agreement, the parties agreed to indemnify each other for any loss sustained if one party failed to pay a debt assumed under the agreement. One asset of the former community was a farming partnership. The former husband assumed all farming indebtedness. He also received all the assets of the farming interests. The year after the partition, the partnership received a substantial payment attributable to operations for the previous year.

The former husband received all those funds under the terms of the partition. However, the next year, he presented his former wife with a tax form showing that she received a substantial portion of the payment. She then incurred a large federal income tax liability which she was required to pay. She sued under the indemnity agreement to recover for her loss under the indemnity agreement, including attorney fees.

In Curtis, we concluded that, under the specific terms of the indemnity agreement between the parties, the former wife was entitled to recover attorney fees occasioned by the former husband’s failure to pay a debt assumed under the partition agreement. We cited South Central Bell Telephone Company v. Gaines Petroleum Company, Inc., 499 So.2d 521 (La.App. 2d Cir.1986), in support of that decision. In South Central Bell, the plaintiff brought suit against the owner and lessee of a service station and the gasoline supplier for damages to underground telephone cables caused by leaking gasoline. The gasoline supplier had an indemnity agreement with the owner of the leaking tank and sought to recover attorney |7fees under that provision. The indemnity provision provided that the tank owner would hold harmless and defend the supplier against any and all claims arising out of the storage, handling, or use of the gasoline sold by the supplier. The tank owner also agreed to indemnify the supplier for any costs and expenses the supplier incurred as a result of any such claims.

The court in South Central Bell found that the tank owner had a duty to defend the supplier and that under the indemnity provision, the obligor was liable for reasonable attorney fees incurred by the obligee, even though the obligatory provision did not specifically authorize attorney fees. That holding was based upon Jennings v. Ralston Purina Company, 201 So.2d 168 (La.App. 2d Cir.1967), writ refused, 251 La. 215, 203 So.2d 554 (1967); Lirette v. Union Texas Petroleum Corporation, 467 So.2d 29 (La.App. 1st Cir.1985); and Hobbs v. Teledyne Movible Offshore, Inc., 632 F.2d 1238 (5th Cir.1980). In each of these cases, the entitlement to attorney fees was allowed under the obligation of the duty to defend contained in the indemnity agreement. Although the recovery in Curtis was an extension of these holdings, it was warranted by the specific terms of the agreement between the parties.

In the present case, the defendants contend that our decision in Curtis, to allow recovery for attorney fees incurred,_ not for defense of a |8claim by another party, but to enforce the indemnity agreement, has been abrogated by the holding in Nassif v. Sunrise Homes, Inc., supra.

In Nassif, Shirley Nassif bought a house from Sunrise and then sold it to her cousin, the plaintiff. When the foundation began to settle, the plaintiff filed a redhi-bition suit against Sunrise, the original seller; Coast, the real estate developer that built the house; and Shirley Nassif. Coast filed a third party claim against the engineering firm that designed the foundation of the house for full indemnity for whatever it might have to pay the plaintiff. Judgment was rendered in favor of the plaintiff and against Coast for damages and attorney fees, based upon La. C.C. art. 2545. Judgment was also rendered in favor of Coast and against the engineering firm for the total amount due to the plaintiff, including attorney fees.

The appellate court vacated the award of attorney fees for Coast, finding that there was no statutory or contractual provision allowing for such recovery. This finding was reversed by the Louisiana Supreme Court which found that Coast was entitled to full indemnification from the engineering company, including the amount of attorney fees that Coast was required to pay to the plaintiff.

The supreme court found that the defendant whose liability to a plaintiff for attorney fees results from the actual fault of another, may recover, by way of indemnity, the amount of the attorney fees from the party actually at fault. The supreme court found an implied contract of indemnity between Coast and the engineering firm, shifting the entire loss to the party actually at fault, including the attorney fees that Coast was called upon to | flpay to the plaintiff. Coast was not seeking to recover the cost of defending the suit against the plaintiff, nor was it seeking attorney fees for its action to recover from the engineering firm.

To arrive at its holding, the supreme court discussed an Oklahoma case, United General Insurance Company v. Crane Carrier Company, 695 P.2d 1334 (Okla.1984), which distinguished between an action for attorney fees and an action for indemnity. The supreme court quoted from the Oklahoma case, that a party seeking indemnity could not recover attorney fees expended in litigating a third party action in the absence of a contract for such indemnification.

However, the Oklahoma court went on to hold that the defendant/third-party plaintiff is entitled to recover from the third-party defendant the attorney fees that the plaintiffs recovered from the defendant under the general rules of indemnity that where a person who, without fault on his own part, has been compelled to pay damages occasioned by the primary negligence of another is entitled to indemnity from the latter, whether an express indemnity contract between the parties is in existence or not.

After discussing the Oklahoma case, the Louisiana Supreme Court held that the action for indemnity is a separate substantive cause of action, independent of the underlying wrong, and distinct from an action for attorney fees. The court also concluded that the equitable principles of restitution apply in an action for indemnity to allow a defendant who is only technically or constructively liable for a plaintiffs loss to recover from the | 1()party actually at fault the attorney fees it was compelled to pay the plaintiff, even in the absence of a statute or contract of indemnification. The supreme court in Nassif allowed indemnification even without an express indemnification agreement.

The defendants in the present case cite the passage from the Oklahoma case referred to in Nassif to support their argument that in this state, attorney fees for enforcement of an indemnity contract may not be recovered without an express contract for such indemnification. We note that in Nassif, the issue of recovery of attorney fees for litigation of the third party action was not before the court nor was the issue of recovery of fees expended in litigation of the main demand. The sole issue in that case was whether attorney fees paid to a plaintiff could be recovered by a defendant/third-party plaintiff against the party ultimately responsible for the loss, even though there was no express contract of indemnity. In Nassif, there was no discussion of our holding in Curtis.

Both Nassif and Curtis concerned indemnity, whether express or implied. In Nassif, Coast was required to pay a judgment and attorney fees to the plaintiff and sought indemnity from the third party ultimately responsible for the loss. In Curtis, a former wife sought indemnification for all losses caused by her former husband’s failure to abide by the terms of the partition agreement. In the present case, as argued by the Monks, we find that the indemnity provision has not been triggered.

Indemnity in its most basic sense means .reimbursement, and may lie when one party discharges a liability which another rightfully should have | ^assumed. It is based on the principle that everyone is responsible for his own wrongdoing, and if another person has been compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss. Nassif v. Sunrise Homes, Inc., supra.

In the present case, although the Office of Conservation sent a letter to the plaintiffs, as the registered owner of the lease, ordering that the wells be plugged and abandoned or a daily fine would be imposed, that penalty was never imposed upon the plaintiffs. No losses, liabilities, fines, penalties claims, costs, or expenses were imposed upon the plaintiffs with respect to the property conveyed in the lease assignment. In the present case, the plaintiffs merely sought to require compliance by the defendants with the provisions of the lease assignment to assume the obligations required of the owners of the lease. Although the trial court granted H.L. Richey an award of $750.00 for a letter of credit that he was required to post with the Office, that was not a matter that originally was a liability of the defendants and which they should have assumed under the lease. No liability to a third party was actually incurred. The plaintiffs did not discharge any liability which the defendants rightfully should have assumed. Accordingly, the defendants are correct in arguing that the indemnity provision in the lease assignment is not at issue in this case.

hpThe plaintiffs have filed a declaratory judgment to require the defendants to abide by the terms of the lease agreement. Basically, this is a contract case for specific enforcement of the terms of the agreement. The plaintiffs are not seeking reimbursement for losses occasioned by paying a claim or penalty to a third party. As stated above, generally, attorney fees are not allowed a successful litigant in Louisiana except where authorized by statute or contract. Therefore, because there is no statute authorizing the payment of attorney fees, the terms of the lease agreement govern the recovery of such fees in this case.

In the present case, the plaintiffs were seeking to enforce the terms of the lease assignment, not for indemnity. Therefore, we find that the trial court erred in awarding attorney fees in this case. Our opinion is limited to the facts presently before the court and we make no ruling as to the outcome had this been a suit for indemnity rather than a suit for declaratory judgment to enforce the terms of a contract of lease assignment.

CONCLUSION

For the reasons stated above, we reverse the trial court judgment against the defendants, ordering them to pay attorney fees to the plaintiffs in this matter. Costs of this appeal are assessed to the plaintiffs.

REVERSED.

      . We recognize that Wuertz v. Tobias, 512 So.2d 1209 (La.App. 5th Cir.1987), holds that while it is the general rule of indemnity that an indemnitee may recover from its indemnitor only those costs and expenses incurred in defense of a claim against the principal demand, when specifically provided for by contract attorney fees incurred in establishing the right of indemnity may also be recovered. The basis of that holding requiring a specific provision for attorney fees was based upon federal maritime law. See Morris v. Schlumberger, Ltd., 445 So.2d 1242 (La.App. 3d Cir.1984), writ denied, 449 So.2d 1345 (La.1984).

      . We note that in oral reasons for judgment, the trial court stated that it was awarding the plaintiff $1,000.00 for a fine he was required to pay. However, the plaintiff testified that he did not have to pay any fines to the Office and the award was not included in the written judgment which was signed and filed by the trial court.


author: WILLIAMS, J. íDREW, J., HARRISON, Judge Pro Tempore,

text:
    STATE of Louisiana, Appellee, v. Lewis WRIGHT, Appellant.
    No. 36,635-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2003.

      Rickey K. Swift, Carey J. Ellis, III, Rayville, for Appellant.
    Richard P. Ieyoub, Paul J. Carmouche, District Attorney, Attorney General, for Appellee.
    J. Thomas Butler, Alex J. Washington, Assistant District Attorneys.
    Before WILLIAMS, DREW and HARRISON (Pro Tempore), JJ.
   WILLIAMS, J.

The defendant, Lewis Wright, was charged by bill of information with one count of unauthorized entry of an inhabited dwelling, a violation of LSA-R.S. 14:62.3. Prior to trial, the state amended the bill of information to charge the defendant with one count of simple burglary, a violation of LSA-R.S. 14:62. After a jury trial, the defendant was found guilty as charged. Thereafter, the trial court sentenced the defendant to serve nine years at hard labor, with credit for time served. The defendant appeals, challenging the sufficiency of the evidence to convict him of simple burglary and the propriety of the trial court’s jury instruction as to the applicable responsive verdicts to simple burglary.

Because we find that the state failed to present sufficient evidence to prove an essential element of the offense of simple burglary, we reverse the defendant’s conviction and vacate his sentence.

FACTS

Kenneth Webb was the owner of a house located at 1050 Pierremont Road in Shreveport, Caddo Parish, Louisiana. According to Webb, the house was rental property that he was having remodeled by Michael Johnson Builders. The building contractor, Michael Johnson, testified that the remodeling was an extensive renovation to repair fire damage.

On the date of the offense, February 25, 2001, Richard Upshaw, a neighbor, observed the defendant approach the house, crawl up some boards to the second level and enter the house through a door. Up-shaw called 911 |¡>from his cellular telephone. Upshaw then parked his vehicle nearby and waited for the police to arrive. As Upshaw waited, he watched the defendant moving around inside the house through the front window. The defendant was “ducking” as if he had seen Upshaw and was trying to hide from his view. At trial, Upshaw positively identified the defendant as the person he had seen climb into and hide inside the house.

When Shreveport Police Officer Deid-rick Williams arrived at the scene, he saw the defendant running away from the house. Officer Williams pursued the defendant on foot and apprehended him. After Officer Williams advised the defendant of his Miranda rights, the defendant admitted that he had been inside the premises. Upshaw identified the defendant at' the scene as the person he had seen enter the house. Officer Williams testified at trial and made a positive in-court identification of the defendant as the person he had chased and apprehended on the day of the crime.

According to their trial testimony, neither Webb, the owner, nor Johnson, the contractor, had given the defendant permission to enter the house. Johnson testified that the front and back doors were damaged from the fire and were covered with plywood, which was screwed into the wood. Johnson also testified that the side doors were kept locked. Neither Webb nor Johnson observed any signs of forced entry. Johnson noted, however, that the plywood covering the back door had been removed. Webb testified that the house was left unlocked to allow the various work crews to come and go as necessary to complete the work. At the time of the crime, the 13house contained several items of value. Specifically, some air conditioning units were stacked in the center of the room during the remodeling process. However, there was no evidence that the defendant either caused any damage inside the house or disturbed any of the property in the house.

Initially, the defendant was charged by bill of information with the unauthorized entry of an inhabited dwelling, a violation of LSA-R.S. 14:62.3. Prior to trial, the state filed an amended bill of information charging the defendant with simple burglary, a violation of LSA-R.S. 14:62. The defendant objected to the amendment and requested a continuance on the ground that he was not prepared to proceed. The trial court found that the amendment had not prejudiced the defense and overruled the objection.

The defense did not present any evidence at the trial. The trial court instructed the jury of the possible responsive verdicts to the charge of simple burglary in compliance with LSA-C.Cr.P. art. 814(44). The defense did not make a contemporaneous objection to the jury charge.

The six-person jury rendered a unanimous verdict of guilty as charged. The defendant filed motions for new trial and post-verdict judgment of acquittal, which were denied. Thereafter, the state filed a habitual offender bill of information charging the defendant as a fourth felony offender. The defendant pled not guilty to the habitual offender bill. However, because the state failed to present any evidence at the hearing, the trial court found the defendant not guilty of the habitual offender charge.

With regard to the simple burglary conviction, the trial court sentenced the defendant to serve nine years’ imprisonment at hard labor, |4with credit for time served. The defendant’s motion to reconsider sentence was denied. The defendant appeals.

DISCUSSION

The defendant contends the evidence was legally insufficient to sustain his conviction of simple burglary. The defendant argues that the state failed to prove that he entered the dwelling with the specific intent to commit a felony or theft therein. He asserts that the evidence of intent was solely circumstantial and insufficient. The defendant also contends the trial court erroneously instructed the jury with regard to the responsive verdicts to simple burglary.

The state contends that the evidence was sufficient to prove the defendant’s guilt of simple burglary beyond a reasonable doubt. It avers that the jury reasonably inferred that the defendant entered the house to commit a theft or other felony therein based on the neighbor’s testimony and evidence of the defendant’s flight from the scene. With regard to the erroneous jury instruction, the state argues that the defendant waived his right to complain of this error on appeal because he failed to enter a contemporaneous objection to the jury charge.

The question of the sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. LSA-C.Cr.P. art. 821; State v. Gay, 29,434 (La.App.2d Cir.06/18/97), 697 So.2d 642. The record shows that the defendant properly raised the issue of sufficiency of the evidence in the trial court in a motion for post-verdict judgment of |Racquittal. Accordingly, he has properly preserved the issue for appellate review.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency-of-evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

The statutory rule with regard to the use of circumstantial evidence to sustain a conviction is found in LSA-R.S. 15:438. This section provides [«that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988).

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. LSA-Const. art. V, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.1990), writ denied, 566 So.2d 983 (La.1990).

Simple burglary is defined in LSA-R.S. 14:62, which states in pertinent part:

Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein ...

To support a conviction of simple burglary, proof of the defendant’s presence in a building by means of an unauthorized entry is not alone sufficient. State v. Jacobs, 504 So.2d 817, 820 (La.1987), citing State v. Jones, 426 So.2d 1323 (La.1983). The prosecution must also prove beyond a reasonable doubt that the intruder had the specific intent to commit a theft or felony therein. See State v. Jones, supra.

LSA-R.S. 14:10(1) defines specific intent as follows:

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.

Although intent to commit a burglary is a question of fact, it need not be proved as a fact. It may be inferred from the circumstances. State v. Robinson, 29,488 (La.App.2d Cir.6/18/97), 697 So.2d 607, writ denied, 97-1845 (La.12/12/97), 704 So.2d 1200; State v. Kahey, 436 So.2d 475 (La.1983). A taking is not required. See State v. Jones, 97-2591 (La.App. 4th Cir.9/8/99), 744 So.2d 165, writ denied, 99-3141 (La.4/7/00), 759 So.2d 91. Displacement of the victim’s possessions may be indicative of the specific intent to commit a theft under LSA-R.S. 14:62. See State v. Vortisch, 00-67 (La.App. 5th Cir.5/30/00), 763 So.2d 765.

In State v. Rounds, 476 So.2d 965 (La.App. 1st Cir.1985), the court extensively reviewed the jurisprudence regarding the circumstantial evidence necessary to prove an intent to commit a felony or theft in simple burglary cases:

The question of what constitutes sufficient circumstantial evidence to prove the specific intent to commit a theft or a felony in a simple burglary case has been extensively litigated. In State v. Ricks, 428 So.2d 794 (La.1983), there was a forced entry (screen door latch pulled loose) around midnight. The defendant had no mask, gloves, burglary tools or a weapon. Nothing belonging to an occupant of the residence was found in the defendant’s possession. However, the defendant was not a “stranger” to the premises and claimed that he was attempting |sto visit a female occupant of the premises. This evidence was found insufficient.
In State v. Jones, 426 So.2d 1323 (La.1983), the defendant was found in the alleged victim’s home late at night. The defendant was a neighbor of the victim and contended he went to the victim’s home to get a ride to the hospital. The defendant looked like a person in a drunken stupor and possessed no burglary tools, weapon, mask or gloves. Nothing belonging to the defendant was found in his possession. The Court held this evidence was insufficient and that mere unauthorized presence on the premises did not constitute a burglary.
In State v. Marcello, 385 So.2d 244 (La.1980), the evidence indicated the defendant had been sleeping in an air-conditioning unit on the roof of a building and climbed down a ladder and entered a third floor restroom. The defendant washed with soap and water and entered a hallway from the restroom. The defendant was observed by a porter and ran back into the restroom, climbed out of the window and fled into an adjacent parking garage. He was subsequently chased and arrested by the police in the garage. No property was reported missing. The defendant was not found with any burglary tools and his flight was caused by past convictions for sleeping in public places. This evidence was found insufficient.
In State v. Merrell, 442 So.2d 713 (La.App. 1st Cir.1983), the defendant walked into the victim’s home, walked around for about fifteen to thirty seconds and left. He did not have possession of any weapons or burglary tools. The defendant did not run but rather wandered away. The defendant took nothing from the victim’s home during the incident. This evidence was found insufficient.
In State v. Patterson, 459 So.2d 714 (La.App. 4th Cir.1984), a neighbor observed an open window on an unoccupied house across the driveway from her house. She also observed a strange car in front of the house and called the police. Within several minutes, she heard a horn blow and saw the police approach from both corners. The defendant exited the vacant house from the open window with a screwdriver in his hand. The defendant ran down the driveway, got in the waiting car and fled. Further investigation revealed the window had been forced open. A pair of pliers was lying on the ground beneath the window. Inside the premises, a window air-conditioning unit had been removed and dragged from another room. The court found this evidence was sufficient.
In State v. Perkins, 450 So.2d 396 (La.App. 1st Cir.1984), writ denied, 452 So.2d 694 (La.1984), the victim returned home and noticed the lock on the back door of his 1qhouse had been pried open. He entered the house and observed the defendant standing in his kitchen. All of the kitchen cabinet drawers were open. The court found the defendant’s presence in the home of a total stranger, the forcible entry and the evidence that the kitchen had been searched excluded every reasonable hypothesis but that the defendant had the intent to commit a theft therein and, thus, the evidence was sufficient.
In State v. Jacobs, 435 So.2d 1014 (La.App. 1st Cir.1983), the police received an anonymous call a burglary was in progress in a residence. On arriving at the scene, the police observed a light from a flashlight on the premises and heard someone in the house shout to someone else in the house. The officers also observed the back screen door had been broken and a wooden door was open. One defendant was found in the house hiding under a dining room table. The other defendant was found hiding under a bed with a chisel and a screwdriver. Nothing was found missing from the residence. The state contended the defendants had not committed a theft because their presence was quickly detected and they were stopped before the theft could be consummated. The trial court found this evidence was sufficient.

When the evidence does not support a conviction of the crime charged, the court has generally remanded with instructions to discharge the defendant. State v. Byrd, 385 So.2d 248, 251 (La.1980). However, the discharge of the defendant is neither necessary nor proper if the evidence supports a conviction of a lesser and included offense which was a legislatively authorized responsive verdict. State v. Byrd, supra. See State v. Tillman, 356 So.2d 1376, n. 2 at 1379 (La.1978).

Responsive verdicts for the crime of simple burglary are set forth in LSA-C.Cr.P. art. 814, which provides in pertinent part:

A. The only responsive verdicts which may be rendered when the indictment charges the following offenses are:
44. Simple Burglary:
Guilty.
|inGuilty of attempted simple burglary.
Guilty of unauthorized entry of a place of business.
Guilty of attempted unauthorized entry of a place of business.
Not guilty.

LSA-R.S. 14:62.4 defines the crime of unauthorized entry of a place of business as follows:

A. Unauthorized entry of a place of business is the intentional entry by a person without authority into any structure or onto any premises, belonging to another, that is completely enclosed by any type of physical barrier that is at least six feet in height and used in whole or in part as a place of business.

In State v. Jones, 516 So.2d 396 (La.App. 5th Cir.1987), the court found that a burglary defendant was not entitled to a jury charge on the lesser included offense of “guilty of an unauthorized entry of a place of business,” where the burglary for which the defendant was charged occurred in a residence. The responsive verdict of unauthorized entry of a place of business was not applicable under the facts of the case because an essential element of that particular offense is lacking: specifically, that the structure entered was used “in whole or in part as a place of business.”

LSA-C.Cr.P. art. 803 mandates that the trial court shall charge the jury as to the law applicable to the charged offense and to any other offenses of which the accused could be found guilty under LSA-C.Cr.P. art. 814 or 815. Where there are no statutory responsive verdicts provided in Article 814, the matter is controlled by Article 815 which provides that all lesser and included grades of the charged offense are responsive verdicts, even though the charged offense is a felony and the lesser offense is a misdemean- or. Lesser and included offenses are those in which all of the Inessential elements of the lesser offense are also essential elements of the greater offense charged. State v. Cooley, 260 La. 768, 257 So.2d 400 (1972). Thus, evidence which supports a conviction of the charged offense necessarily supports a conviction of a lesser and included offense. Accordingly, when the accused requests an instruction to the jury on the law applicable to an offense which is truly a lesser and included grade of the charged offense, the trial court has no discretion to refuse to give the requested instruction.

Under LSA-C.Cr.P. art. 814 our legislature has enumerated specific responsive verdicts for the most commonly committed crimes. Article 815 only applies to crimes not listed in Article 814. State v. Merrell, 442 So.2d 713 (La.App. 1st Cir.1983). Since Article 814 provides the responsive verdicts to simple burglary, the trier of fact can not convict on the basis that some other offense has been committed and should have been listed as a responsive verdict. The trial court may exclude one of the responsive verdicts listed in Article 814, but it cannot add to their number. State v. Square, 433 So.2d 104 (La.1983).

Based upon the jurisprudence set forth on this subject as outlined above, we find that there was insufficient evidence to prove that the defendant in the instant case had the specific intent to commit a felony or theft in the house. There were no signs of forced entry. See State v. Rounds, supra. Also, there was no displacement of the victim’s possessions. See State v. Vortisch, supra. Furthermore, the defendant did not possess any burglary tools or weapons, and was not wearing a mask or gloves. Therefore, the evidence viewed in the light most favorable to the prosecution was insufficient to convict the defendant of simple burglary.

As stated above, when a court finds that the evidence was not sufficient to support a verdict for the crime charged, the discharge of the defendant is neither necessary nor proper when the evidence supports a conviction of a lesser and included offense which is a legislatively authorized responsive verdict. State v. Byrd, supra. However, the responsive verdict of unauthorized entry of a place of business is not applicable to the circumstances of the instant case because the house was not “used in whole or in part as a place of business.” LSA-R.S. 14:62.4(A). Although we find that the evidence was overwhelming to convict the defendant of unauthorized entry of an inhabited dwelling under LSA-R.S. 14:62.3, the prosecution amended the bill of information from the offense of unauthorized entry of an inhabited dwelling to simple burglary. Therefore, this conviction of simple burglary is reversed because of insufficient evidence to support that crime or any of the responsive verdicts thereto.

Because we have reversed the defendant’s conviction, we pretermit any additional discussion with regard to his challenge to the propriety of the trial court’s jury instruction.

CONCLUSION

For the above reasons, the defendant’s conviction is hereby reversed and his sentence is vacated.

CONVICTION REVERSED; SENTENCE VACATED.

DREW, J., concurs with written reasons.

HARRISON, Judge Pro Tempore, dissents with written reasons.

íDREW, J.,

concurring:

As usual, my learned colleague has produced a well-written opinion. I join her in holding, notwithstanding State v. Hooker, 623 So.2d 178 (La.App. 2d Cir.1993), that a conviction of simple burglary is impossible under these facts. There is absolutely no proof of a taking, nor proof of the intent to commit another felony inside the structure. Perhaps he was going to take a nap; perhaps he was curious. The evidence preponderates that Mr. Wright was looking to steal or commit a felony, but this element of simple burglary clearly wasn’t proven beyond a reasonable doubt.

Certainly it would be a stretch to argue that this rent house is a “place of business,” even though, at the time of the unauthorized entry, it:

• had recently been damaged by a fire,
• was unsuitable for habitation,
• was in the process of being renovated, and
• was intended to be an income-producing property.

My colleague correctly cites State v. Jones, (La.App. 5th Cir.1987), 516 So.2d 396, wherein this possible argument was dismissed. However, the Jones case is distinguishable, because the structure unlawfully entered in that case was indisputably the home of Mr. Jones. Still, under these facts, the “place of business” argument requires more contortion than this writer can perform.

Had the state not amended the charge, or had the state amended the information to charge simple burglary of an inhabited dwelling (LSA-R.S. 14:62.2), a felony conviction of unauthorized entry of an inhabited 12dwelling would have been appropriate under the proven facts, as that crime (LSA-R.S. 14:62.3) would have then been responsive to the crime billed. C.Cr.P. art. 814(44.1). However, the defendant was in fact prosecuted for simple burglary under LSA-R.S. 14:62, to which unauthorized entry of an inhabited dwelling is not responsive. C.Cr.P. art. 814(44).

The Legislature should reexamine the responsive verdicts for simple burglary, because the status quo is bizarre. It is inappropriate for Mr. Wright to walk away from all this, a free man, but on this record we have no choice. Considering the facts proven and the current law, I concur in this . result. Regrettably, the defendant gets a free pass, even though he clearly and obviously committed a felony.

HARRISON, Judge Pro Tempore,

dissenting.

I respectfully dissent. The jury could reasonably find that Wright entered this structure with the intent to commit a theft therein. These facts are essentially the same as in State v. Hooker, 623 So.2d 178 (La.App. 2d Cir.1993), and are clearly sufficient to establish the essential element of intent. I would, therefore, affirm the jury’s verdict.

      . We find that there was sufficient evidence to convict the defendant of the initial charge of unauthorized entry of an inhabited dwelling; however, the state failed to prove an essential element of the amended charge of simple burglary, i.e., the entry occurred with the specific intent to commit a felony or theft therein.

      . The Supreme Court reversed the conviction. State v. Jacobs, 504 So.2d 817 (La.1987).