author: _[iPICKETT, Judge.

text:
    Bonnie D. REED v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 02-804.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Anne E. Watson, Attorney at Law, Opel-ousas, LA, for Plaintiff/Appellee, Bonnie D. Reed.
    Katherine P. Martin, Attorney at Law, Lafayette, LA, for Defendant/Appellant, State Farm Mutual Automobile Insurance Company.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR and ELIZABETH A. PICKETT, Judges.
   _[iPICKETT, Judge.

FACTS

This suit arises from an automobile accident that occurred in Ville Platte, Louisiana, on February 27, 2001. This accident involved a 1997 Ford Taurus being driven by Bonnie Reed.

Both parties’ vehicles were insured by State Farm Mutual Automobile Insurance Company (State Farm). Ms. Fontenot had a liability policy with a $10,000.00 per person liability limit. Ms. Reed had a policy which afforded $25,000.00 per person in uninsured motorist benefits. It was stipulated that Ms. Fontenot was 100% liable in the cause of the accident.

On April 27, 2001, Ms. Reed signed an authorization giving State Farm permission to obtain her medical records.

On June 22, 2001, Ms. Reed called her State Farm claims representative, Shawn Smith, and told Mr. Smith she was going to need a knee replacement and was making a claim for uninsured motorists (UM) benefits.

On July 23, 2001, Ms. Reed settled with State Farm for Ms. Fontenot’s policy limits of $10,00.0.00.

When notified by Ms. Reed that she intended to make a UM claim, Mr. Smith contacted the State Farm representative who handled Ms. Fontenot’s policy, Cedric Roy. Mr. Roy informed Mr. Smith that Ms. Reed had a four-month-old injury which did not exceed policy limits. Monica Domingue subsequently took over the handling of the UM claim. Ms. Domingue secured the records from State Farm’s file involving the liability policy, which reflected medical bills totaling $3,272.32 and treatment through May 21, 2001. Ms. Do-mingue did not find, at that time, that any UM tender was warranted as she did not believe the claim exceeded the underlying | ¡.policy limits.

Ms. Domingue further investigated the claim, requesting complete medical records from Dr. Barry Henry and Dr. Chuck Aswell. Dr. Henry’s records reflected a pre-existing knee condition for which Ms. Reed had undergone surgery on her knee several months prior to the accident, with pain and mild swelling reported on December 7, 2000, a little less than three months before the accident at issue. Ms. Do-mingue re-evaluated the claim and, again, determined that Ms. Reed had not proven a claim which exceeded policy limits. Because Ms. Reed was claiming she needed a knee replacement because of the accident, Ms. Domingue specifically inquired of Dr. Henry as to what extent the accident had aggravated Ms. Reed’s preexisting condition. Ms. Domingue had received complete medical records on July 30, 2001, one week after State Farm settled the liability issue at policy limits under Ms. Fontenot’s policy. Ms. Domingue sent her inquiry to Dr. Henry on August 4, 2001.

State Farm received a reply from Dr. Henry on August 28, 2001. Dr. Henry acknowledged he had recommended a total knee replacement prior to the accident, but that Ms. Reed’s condition had been aggravated by the accident. He noted the surgery would be sooner than otherwise necessary as a result of the accident.

By September 7, 2001, State Farm had Bonnie Reed’s complete medical records before it reflecting treatment through July 20, 2001, total medical bills of $5,333.47, and an opinion from the treating physician that Ms. Reed’s pre-existing knee condition was aggravated by the accident which accelerated the need for knee replacement surgery. At this point, Ms. Domingue increased her evaluation of Ms. Reed’s claim, ranging it from $17,500 to $18,500.00. After giving State Farm a ^credit for the underlying $10,000.00 liability limit, she issued a tender to Ms. Reed for $7,500.00. She advised Ms. Reed that she would continue to evaluate her claim and pay accordingly as any additional documentation was received.

On October 3, 2001, Ms. Reed filed suit against State Farm alleging that State Farm acted arbitrarily and capriciously in failing to timely tender the policy limits and/or a reasonable amount under the policy as required by La.R.S. 22:658 and 22:1220. The plaintiff sought damages, attorney fees, penalties and court costs.

On November 1, 2001, Ms. Reed’s attorney, by letter to Ms. Domingue, requested the policy limits of the UM policy be paid to Ms. Reed.

Ms. Reed was seen by Dr. Charles Johnson, an orthopaedic surgeon, on January 29, 2002. He also recommended a total knee replacement, and surgery was scheduled for February 25, 2002. State Farm took Ms. Reed’s deposition on February 18, 2002, at which time she told State Farm the date of the scheduled surgery. State Farm had requested, but not yet received, the medical records from Dr. Johnson.

State Farm received Dr. Johnson’s medical records on February 26, 2002, which reflected the January appointment and his recommendations. Dr. Johnson’s deposition was taken on March 4, 2002. At the deposition, Dr. Johnson testified that the damage to Ms. Reed’s knee was caused by the motor vehicle accident. Following this deposition, State Farm tendered the balance of the policy limits in the amount of $17,500.00. Although a settlement offer was made, Ms. Reed rejected it because it did not include attorney fees and penalties.

State Farm issued its check on April 3, 2002, in the amount of $18,128.87 which included the policy limits of $17,500.00 and legal interest in the amount of $628.87.

|4A trial on the merits was held on May 20, 2002. Judgment was rendered in favor of the plaintiff, Bonnie Reed, and against the defendant, State Farm, awarding the plaintiff $1,800.00 in penalties with legal interest, $15,000.00 in attorney fees plus legal interest, costs of the proceeding, and a $350.00 expert witness fee assessed for Timothy Fontenot, the physical therapist. Written judgment was executed on May 22, 2002. It is from this judgment the defendant appeals.

ASSIGNMENTS OF ERROR

ASSIGNMENTS OF ERROR BY THE DEFENDANT

(1) The trial court committed manifest error in concluding that State Farm failed to make a reasonable tender within thirty days from proof of loss as the evidence established that Ms. Reed did not make satisfactory proof of a loss mandating a UM tender more than thirty days prior to September 7, 2001 nor did Ms. Reed provide any proof to State Farm that the value of Ms. Reed’s claims must have exceeded $17,500.00 at that time.

(2) The trial court committed manifest error in concluding that a second UM tender was mandated more than thirty days prior to April 3, 2002 when no additional satisfactory proof of loss was submitted during that time-frame.

(3) The trial court committed manifest error in concluding that State Farm was arbitrary and capricious in failing to make a reasonable investigation where the evidence clearly showed that State Farm actively investigated the plaintiffs claims throughout the handling of this matter.

(4) The trial court committed manifest error in concluding that State Farm was arbitrary and capricious in failing to properly evaluate the claim when the evidence clearly established that Ms. Reed had sustained an aggravation of a pre-existing condition, there were numerous causation issues regarding the extent of the aggravation, which State Farm actively investigated, and tendered within thirty days of obtaining clarification of those issues.

(5) The trial court erred as a matter of law in considering evidence which was never submitted to State Farm for consideration during the handling of this matter and therefore was completely irrelevant to the determination of the sole issue regarding whether State Farm acted arbitrary and capricious in the handling of Ms. Reed’s claim.

(6) The trial court’s award of $15,000.00 in attorney’s fees was excessive and an abuse of discretion.

|s(7) The trial court erred in awarding judicial interest on attorney’s fees from the date of judicial demand rather than from the date of judgment.

(8) The trial court erred in allowing the testimony of Timothy Fontenot and assessing an expert witness fee in connection with his testimony insofar as Mr. Fontenot’s testimony was completely irrelevant to the bad faith issues being tried.

ASSIGNMENTS OF ERROR BY THE PLAINTIFF

Plaintiff asserts the following assignments of error in her answer to this appeal:

1. Plaintiff-Appellee, Bonnie D. Reed, contends that the trial court erred in not finding that Defendant-Appellant, State Farm Mutual Automobile Insurance Company, violated both Louisiana Revised Statute 22:658 and Louisiana Revised Statute 22:1220 and therefore allocating penalties of $5,000.00 pursuant to 22:1220 (the higher amount under the statutes).

2. Plaintiff-Appellee, Bonnie D. Reed, contends that State Farm Mutual Automobile Insurance Company violated Louisiana Revised Statute 22:1220 and 22:658 on more than one occasion and Plaintiff is therefore entitled to penalties for each breach by State Farm Mutual Automobile Insurance Company.

8. Plaintiff-Appellee, Bonnie D. Reed, contends that she is entitled to an additional judgment for attorney’s fees for the time expended on this Appeal lodged by State Farm Mutual Automobile Insurance Company as well as for the work done in answering the Appeal.

DISCUSSION

APPELLANT’S ASSIGNMENTS OF ERROR

In the first four assignments of error, State Farm argues the trial court committed manifest error regarding specific findings, namely: 1) that State Farm failed to make a reasonable tender within 30 days of proof of loss as Ms. Reed did not make a satisfactory proof of loss more than 30 days prior to September 7, 2001; 2) that a second UM tender was mandated more than 30 days prior to April 3, 2002; 3) that State Farm was arbitrary and capricious in failing to made a reasonable 1 ^investigation; and 4) that State Farm was arbitrary and capricious in failing to properly evaluate the claim.

Generally, an appellate court may not set aside the factual findings of a trial court unless there is a finding of manifest error or it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse the determinations of a trial court, an appellate court must: 1) find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993).

The insured bears the burden of making “satisfactory proof of loss” before any payment is owed by an insurer. This includes proof that: 1) the owner or operator of the other vehicle involved in the accident was uninsured or underinsured, 2) he was at fault, 3) such fault gave rise to damages, and 4) the extent of such damages. Hart v. Allstate Insurance Company, 437 So.2d 823 (La.1983).

The trial court made very specific findings of fact regarding whether State Farm was arbitrary and capricious in handling this claim. The trial court found that on July 23, 2001, State Farm settled the claim against the tort-feasor’s liability policy for the $10,000.00 limits. Since the parties stipulated that the other party was 100% at fault, it is apparent the appellant was aware at that time that the appellee was not at fault in the accident.

The trial court further found that at the time of the first UM tender, on September 7, 2001, State Farm had medical bills to totaling $5,333.47, Ms. Domingue had copies of all the appellee’s medical records, and State Farm was aware appellee needed a total knee replacement. The trial court concluded that State [7Farm knew, at the time it made the $7,500.00 tender, that it was not a reasonable tender. The trial court specifically found the plaintiff had made a satisfactory proof of loss and the damages exceeded the $10,000.00 liability policy.

The trial court further determined that at no time did State Farm request an IME and that State Farm failed to take depositions of the treating physicians for over one year from the date of the accident. The appellee in fact had total knee replacement on February 25, 2002, with the cost of the surgery exceeding $30,000.00.

Although State Farm argues it had no real evidence of a causal connection until Dr. Johnson’s March 4, 2002 deposition, the trial court found it had all the information necessary to properly evaluate the claim prior to July 23, 2001. We have reviewed the record and find these findings of fact to be supported by the record. We find no manifest error in the trial court’s findings that Státe Farm was arbitrary and capricious in failing to properly evaluate the claim and that State Farm failed to make a reasonable ténder in a timely manner, thus violating La.R.S. 22:658 and 22:1220.

In Assignments of Error 5 and 8, State Farm asserts the trial court erred, as a matter of law, in considering the testimony of Timothy Fontenot, the physical therapist who treated the appellee both before and after the accident, and erred in assessing an expert witness fee. The appellant argues that Fontenot did not respond to two requests they sent for his records and that his testimony was totally irrelevant as to the issues before the court-whether State Farm failed to properly investigate the claim and whether State Farm handled the claim in an arbitrary and capricious manner.

We cannot agree that Fontenot’s testimony was irrelevant to the issues before the court. Fontenot, as appellee’s physical therapist, had first hand and pertinent | ¿knowledge of the appellee’s condition as it pertained to her knee both before and after the accident. He had vital information as to the degree to which the accident aggravated the condition-the very issue about which State Farm argues it had little information. While State Farm sent two requests to Mr. Fontenot for his records, which he did not respond to until after the UM limits had been tendered, State Farm never subpoenaed his records and never took his deposition. Because this is reasonably related to the trial court’s determination as to whether the claim was properly investigated and evaluated, we find no error on the trial court’s part in allowing the testimony. We further find no error in the trial court’s assessment of an expert witness fee.

In Assignments of Error 6 and 7 the appellant argues the trial court’s award of $15,000.00 in attorney’s fees is excessive and the trial court erred in awarding interest from the date of judicial demand, rather than the date of judgment.

La.R.S. 22:658, which the trial court found the appellant to have violated, allows for the imposition of attorney fees.

Factors to be taken into consideration in determining the reasonableness of attorney fees include: 1) the ultimate result obtained; 2) the responsibility incurred; 3) the importance of the litigation; 4) amount of money involved; 5) extent and character of the work performed; 6) legal knowledge, attainment, and skill, of the attorneys; 7) number, of appearances made; 8) intricacies of the facts involved; 9) diligence and skill of counsel; and 10) the court’s own knowledge. Rivet v. State, 96-0145 (La.9/5/96); 680 So.2d 1154.

In the present case,. the attorney submitted an affidavit reflecting she had been practicing law in Louisiana , since 1986, normally charges 40% on contingency cases, 19began representing the appellee in August of 2001, and had spent 62.9 hours on this case. We note the issues in this matter are rather straightforward and the duration of the litigation rather brief. Counsel was ultimately successful in proving a violation of La.R.S. 22:658 and in obtaining policy limits for her client on the main demand.

Considering the factors set forth in Rivet, we find while counsel is entitled to attorney fees the court abused its discretion at fixing the amount at $15,000.00. We amend the court’s award to the amount of $11,000.00.

As to the issue of judicial interest, the jurisprudence has established that when attorney fees are assessed under La.R.S. 22:658, interest is due from the date of judicial demand. Baghramain v. MFA Mutual Insurance Company, 315 So.2d 849 (La.App. 3 Cir.), writs denied, 320 So.2d 207, 209 (La.1975). We find no error on the trial court’s part in ordering interest on the attorney fees from date of judicial demand.

APPELLEE’S ASSIGNMENTS OF ERROR

In her first assignment of error, the appellee argues the trial court erred by not finding State Farm violated both La. R.S. 22:658 and 22:1220. Appellee maintains she is entitled to penalties under both statues.

We previously noted the trial court made a finding of fact that State Farm had all information needed to appropriately evaluate this claim on September 7, 2001, but did not, tender policy limits until after the March 4, 2002 deposition of Dr. Johnson. We have found no error in those findings of fact.

Further, we find the trial court in fact made a finding that State Farm violated both 22:658 and 22:1220. In its reasons for ruling the trial court stated (emphasis added):

LnThis Court has no trouble finding that State Farm as plaintiffs UM carrier was arbitrary and capricious in failing to make a reasonable tender within 30 days from proof of loss, in failing to ■ make a reasonable investigation, in failing to properly evaluate the claim, and by its actions or ináctions, uh, which have violated' both the letter and the spirit of the law,-that is LRS 22:657 and 22:1220, and have therefore incurred liability for attorney’s fees, penalties, and court costs.

The court went on to assess penalties under 22:658. The trial court’s error was in not considering the penalty provisions of both statutes in assessing the penalties and attorney fees. The provisions of 22:168 and 22:1220 are closely related. This issue has been discussed fully by our supreme court in Calogero v. Safeway Ins. Co., 99-1625 (La.1/19/00); 753 So.2d 170. There the court stated:

We have previously recognized the close relationship between the conduct prohibited in La.R.S. 22:658, subd. A(l) and the^ conduct prohibited in' La.R.S. 22:1220, subd. B(5). Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, 192, n. 14. In fact, the conduct prohibited is virtually identical, i.e., failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious or without probable cause. The primary difference is that under La.R.S. 22:658, subd. A(l), the insurer must pay the claim within 30 days of receiving satisfactory proof of loss, rather than the longer 60 day period allowed under La. R.S. 22:1220, subd. B(5).
In this case, there is no question that Safeway failed to pay the claim within 30 days after receiving satisfactory proof of loss. Further the trial judge made a factual finding that Safeway’s failure to pay was arbitrary and capricious. Because he made this factual finding, the court of appeal was correct in awarding attorney fees under La.R.S. 22:658 because, unlike penalties under La. R.S. 22:1220, subd. C, penalties and attorney fees under La. R.S. 22:658, subd. B(l) are mandatory, rather than discretionary, where a breach of La. R.S. 22:658 subd. B(l) has occurred. McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1092, n. 6 (La.1985) (citing Hart v. Allstate Ins. Co., 437 So.2d 823 (La.1983)); Steadman v. Pearl Assurance Co., 242 La. 84, 134 So.2d 884, 888 (La.1961). This holding is not in conflict with the court of appeal’s correct legal finding that where La.R.S. 22:1220 provides the greater penalty, La. R.S. 22:1220 supersedes La.R.S. 22:658 such that Calogero cannot recover penalties under both statutes. 735 So.2d at 820. However, because La.R.S. 22:1220 does not provide for attorney fees, Calogero is entitled to recover attorney fees under La. R.S. 22:658 for Safeway’s In arbitrary and capricious failure to pay his claim within 30 days of receiving satisfactory proof of loss.

Id. at 174

Since the penalty provision in La. R.S. 22:1220 supersedes the penalty provision in La.R.S. 22:658, and the trial court has made factual findings that State Farm violated both provisions, findings we have determined are not manifestly erroneous, the trial court should have assessed penalties under the provisions of La.R.S. 22:1220. Accordingly, we amend the judgment to reflect the appropriate penalty of $5,000.00 as provided for in La.R.S. 22:1220. Attorney fees were appropriately assessed under La.R.S. 22:658.

Appellee further argues the judgment be modified to provide multiple penalties, as she argues there are multiple breaches of La.R.S. 22:1220. The appellee argues multiple penalties are due for each occasion that the insurer violated La.R.S. 22:1220(B)(5) in arbitrarily and capriciously failing to tender policy limits. The facts of this case, taken as a whole, support the trial court’s findings that State Farm was arbitrary and capricious in failing to make a reasonable tender in a timely manner and therefore violated La.R.S. 22:1220(B)(5). However, there is no proof of any other breach of La.R.S. 22:1220. Therefore, multiple penalties are not appropriate.

The appellee has requested additional attorney fees for her work on this appeal. We award her the amount of $1,500.00 in additional attorney fees.

DECREE

We find no manifest error on the part of the trial court in its findings of fact and conclusion that State Farm acted in an arbitrary and capricious manner in handling this claim. We affirm all aspects of the ruling of the trial court except as to the |! ¿following: l)we amend the trial court’s award of attorney’s fees from $15,000.00 to $11,000.00; 2) we find the trial court erred in assessing penalties under La.R.S. 22:658 rather than La.R.S. 22:1220 and amend the award of penalties from $1,800.00 to $5,000.00; 3) we further grant additional attorney fees in the amount of $1,500 for work doné on appeal. All costs of this appeal are assessed to appellant.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: JjGREMILLION, Judge.

license: Public Domain

text:
    Lewis FRAZIER, Jr. v. ZAPATA PROTEIN USA, INC.
    No. 02-0605.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Lionel H. Sutton III, Sean Daniel Al-fortish, Law Offices of L.H. Sutton, III, New Orleans, LA, for PlaintiffAppellant, Lewis Frazier, Jr.
    Alan K. Breaud, Breaud & Lemoine, Lafayette, LA, for Defendant/Appellee/Ap-pellant, Zapata Protein USA, Inc.
    John Robert Shea, John Shea & Associates, Lafayette, LA for Intervenor, John Robert Shea.
    Frank J. D’Amico Jr., New Orleans, LA, for Intervenor, Frank J. D’Amico Jr.
    Kristina Boyle Webb, Shapiro & Shapiro, Baton Rouge, LA, for Intervenor, Advocate Financial, L.L.C.
    Thomas M. Daigle, Lafayette, LA, for Intervenor, Thomas M. Daigle.
    Ashley Spencer Gulden, New Orleans, LA, for Intervenor, Ashley Spencer Gulden.
    Court composed of NED E. DOUCET, JR., Chief Judge, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   JjGREMILLION, Judge.

Both the plaintiff, Lewis Frazier, and the defendant, Zapata Protein (USA), Inc., appeal the jury’s judgment and rulings by the trial court in this matter. For the following reasons, we affirm as amended.

FACTS

On October 9, 1995, Frazier, who was employed as a seine setter by Zapata, allegedly suffered a work-related accident aboard a purse boat of the pogey fishing boat, the TIGER SHOAL. Frazier alleged that he fell and hit his left side, injuring his back, when the mate purse boat bumped the TIGER SHOAL while releasing from it in order to go set out its net. As a result of this injury, Frazier underwent two back surgeries.

Zapata fishes for menhaden, or pogey fish, six months out of the year off the coast of Cameron Parish, Louisiana. In doing so, it sends out numerous steamers, like the TIGER SHOAL, which are directed to the schools of fish by spotters located in small airplanes. When a school of fish is located, the spotters direct the steamer to that location. Once the steamer reaches the school, it blows its whistle twice to signal the fishermen to man the two purse boats tied to its stern. The purse boats, known as the captain boat and the mate boat, are lashed together and tied closely to the steamer’s stern. Once the purse boats are manned, the steamer sounds its whistle again to signal the release of the two boats, each of which contains half of the net. The purse boat operators throw the boats into gear and move them forward up against the stern of the steamer so that an engineer on the steamer can loosen the running fines holding the boats to it. Crew members on the purse boats then unhook the | ^running fines, releasing the purse boats from the steamer. After their release, the purse boats approach the school of fish and encircle it with the net. Once the fish are caught, the net is then lifted and the fish are pumped aboard the steamer and held until it reaches Zapata’s processing plant located in Cameron. The capture of fish in this manner is called making a set.

Frazier claimed that he was injured on October 9, 1995, when the engineer loosened the slack in the running fine holding the mate boat to the steamer before the mate, Brian Rice, had the boat up against the steamer’s stern. He alleged that Rice then had to run the purse boat forward in order to create slack in the running fine so that it could be unhooked from the steamer. Frazier claimed that Rice bumped the purse boat hard into the steamer causing him to fall across a thwart located in the rear of the boat where he was stationed. After the set was completed, Frazier reported the accident to Rice, who in turn, reported it to Captain Charles Robinson, the captain of the TIGER SHOAL. Although Frazier completed the fishing season, which ended approximately three weeks later, he performed only fight duty work during that time.

On June 10, 1996, Frazier filed suit against Zapata pursuant to the Jones Act and general maritime law via the Savings to Suitors Clause, 28 U.S.C. § 1333, seeking damages based on the doctrine of unseaworthiness and negligence, and maintenance and cure benefits. The maintenance and cure issue was separated from the main demand and tried as a bench matter, with the trial court awarding Frazier maintenance and cure benefits and ordering Zapata to pay for his surgery. Two petitions of intervention were filed by attorneys previously hired by Frazier to represent him in this matter.

laThis matter was tried by a jury. At the close of Frazier’s evidence, the trial court granted a directed verdict in favor of Zapata on his claim for damages based on unseaworthiness. It also dismissed Zapata’s affirmative defense of contributory negligence during the jury charge conference. At the close of evidence, the jury rendered judgment in favor of Frazier awarding him a total of $200,000 in damages for past and future pain and suffering, past lost earnings, and future loss of earnings. A judgment was rendered by the trial court awarding Frazier the aforementioned damages, and further ordering Zapata to pay interest on the judgment from the signing of the judgment until paid. It further ordered that each party would bear their own court costs and expert fees, except that Zapata would pay 60% of the court costs incurred by Frazier up until the date of judgment. A motion for new trial filed by Zapata was denied by the trial court. Both Frazier and Zapata appeal suspensively from this judgment.

ISSUES

On appeal, Frazier raises five assignments of error. He argues that the jury abused its discretion by only awarding him $50,000 in general damages and $150,000 in past lost wages and future loss of earnings. He further argues that the trial court erred in granting the directed verdict as to his unseaworthiness claim, in failing to award prejudgment interest from the date of the accident, and in assessing him with 40% of his court costs.

Zapata raises three assignments of error. It argues that the jury erred in finding liability on its part pursuant to the Jones Act. It further claims that the trial court erred by denying its motion for a directed verdict on the issue of Frazier’s Jones |4Act claim and in dismissing its affirmative defense of comparative fault without the benefit of a motion for a directed verdict by Frazier on that issue.

LIABILITY

Jones Act

The Jones Act allows an injured seaman to bring a negligence action against his employer. 46 U.S.CApp. § 688 (1994).

The Jones Act allows an injured seaman to bring a negligence suit against his employer 46 U.S.C.App. § 688 (1944). The employer’s potential liability extends to all personal injuries arising during the course of the seaman’s employment, but proof of negligence is essential to recovery. See id. Such negligence may arise in many ways including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-21, at 312 (2d ed.1994). The duty of care owed by an employer under the Jones Act is that of ordinary prudence, namely the duty to take reasonable care under the circumstances. Gautreaux v. Schurlock [Scurlock] Marine, Inc., 107 F.3d 331, 335-36 (5th Cir.1977 [1997]). The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries. However, a seaman need only present “slight evidence” that his employer’s negligence caused his injuries in order to reach the jury or to be sustained upon appellate review. Id. at 334-35.

Foster v. Destin Trading Corp., 96-0803, pp. 3-4 (La.5/30/97), 700 So.2d at 208, (on rehearing). The manifest error-clearly wrong standard of review applies to matters brought pursuant to the Jones Act.

After reviewing the record in its entirety, we cannot say that the jury erred in finding Jones Act liability on the part of Zapata. Differing views of the evidence were presented to the jury with regard to the negligence of Zapata in causing Frazier’s back injury. Frazier and his witnesses, Austin Owens and David Sharp, who were both on the purse boat at the time of the alleged accident, testified that Rice Isbumped the purse boat into the steamer hard enough to cause them to fall. Although neither Owens nor Sharp actually saw Frazier fall, both testified that Frazier appeared hurt after that incident and that they had to help him out of the purse boat after the set was completed. Zapata’s witnesses, Rice and Robinson, both testified that the bump never occurred. Since the jury was presented with conflicting testimony on this issue, we cannot say that it was unreasonable in finding liability on the part of Zapata. Accordingly, Zapata’s assignment of error pertaining to its Jones Act liability is dismissed as being without merit.

Unseaworthiness

Frazier next argues that the trial court erred in granting a directed verdict in favor of Zapata, which dismissed his claim of unseaworthiness. We disagree. In dismissing this issue, the trial court stated that there was no physical evidence in the record of an unseaworthy condition aboard the TIGER SHOAL or its purse boat.

A directed verdict is the proper procedural vehicle to foreclose a jury’s decision on a 'matter after the close of evidence by the opponent of the moving party. As such, it should only be granted when the facts and inferences, when viewed in a light most favorable to the nonmovant, point so strongly in' favor of the movant that the trial court feels that reasonable persons would not reach a contrary verdict. Hebert v. BellSouth Telecomm., Inc., 01-223 (La.App. 3 Cir. 6/6/01), 787 So.2d 614, writ denied, 01-0223 (La.6/6/01), 787 So.2d 614; Courville v. City of Lake Charles, 98-73 (La.App. 3 Cir. 10/28/98), 720 So.2d 789. In reviewing the correctness of a directed verdict, an appellate court analyzes the evidence in light of the substantive law relevant to the nonmovant’s claim. Odom v. State Dep’t of Health and Hosps., 98-1590 (La.App. 3 Cir. 3/24/99), 733 So.2d 91.

Pursuant to general maritime law, ■ a seaman is entitled to • work on a seaworthy vessel. Thus,'1 a vessel owner has an absolute duty to furnish a seaworthy vessel, and a breach of that duty will give rise to a claim for general damages. Vendetto v. Sonat Offshore Drilling Co., 97-3103 (La.1/20/00), 725 So.2d 474, cert. denied, 527 U.S. 1023, 119 S.Ct. 2369, 144 L.Ed.2d 773 (1999). An action for unseaworthiness arises if a seaman alleges that he was injured as a result of a defective condition of the vessel, its equipment, or its appurtenances. Id. The unseaworthiness of a vessel is a question of fact, which will be determined on a case-by-case basis. Id.

There is a more stringent causation requirement for claims of unseaworthiness than Jones Act claims. In an unseaworthiness claim, the plaintiff must show that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness. Phillips, 953 F.2d at 928.

Derouen v. Mallard Bay Drilling, LLC, 00-1268, p. 10 (La.App. 3 Cir. 6/22/01), 808 So.2d 694, 705.

After reviewing the record, we find, as did the trial court, that Frazier presented no evidence showing that an unseaworthy condition of the TIGER SHOAL or its purse boat played a substantial part in bringing about his injury. Accordingly, we find no error in the trial court’s grant of a directed verdict on the issue of unseaworthiness in favor of Zapata.

Comparative Fault

In its next assignment of error, Zapata argues that the trial court erred in dismissing its affirmative defense of comparative fault without the benefit of a directed verdict by Frazier on that issue. It claims that the trial court dismissed this |7issue sua sponte during the jury charge conference and did not present this issue to the jury. There is no record of this conference in the record. We agree that it was error for the trial court to dismiss this issue on its own motion, since only a party may bring a motion for a directed verdict on an issue. La.Civ.Code art. 1810; see Morgan v. Mazda Motor of America, 93-1378 (La.App. 3 Cir. 5/4/94), 640 So.2d 453. However, we find this error to be harmless since the record is devoid of any evidence that Frazier failed to act as a reasonable seaman would act under the same circumstances. Foster v. Destin Trading Corp., 96-0803 (La.5/30/97), 700 So.2d 199. Accordingly, this assignment of error is dismissed as being without merit.

DAMAGES

In his next assignment of error, Frazier argues that the jury abused its discretion by only awarding him $50,000 in general damages. We agree.

Dr. William Foster, a neurosurgeon, began treating Frazier on November 13, 1995. A November 20, 1995 MRI revealed degenerative disc changes at L3-4 and, to a lesser extent, at L4-5. It further revealed a bulging disc at L3-^l, with a posterior osteophyte formation, or bone spur, combining with hypertrophy or thickening of the ligamentum flavum and facet joint, to create a stenosis or narrowing of the spinal canal. The bulging disc produced a mass effect on the ventral aspect of the thecal sac surrounding the nerve roots. Similar findings were noted to a lesser extent at L4-5. Dr. Foster noted that Frazier’s spinal stenosis and bulging disc predated his work-related injury, but opined that, according to his history, he was asymptomatic prior to his accident.

|SA May 14, 1996 myelogram and post-myelogram CT scan revealed degenerative changes at L3-4 and L4-5, hypertrophy of the ligamentum flavum, and a small spinal canal. As a result of this test, Dr. Foster felt that Frazier had a definite defect on the left oblique at L4-5, small impressions at L3-4, moderate central canal stenosis, and a bulging disc at L3-4 and L4-5. He also felt that Frazier had a classic radicu-lopathy or nerve root compression at L5.

Dr. Foster treated Frazier conservatively, including injections for pain by Dr. Kevin Goran and physical therapy. However, when this failed, he performed surgery on September 29, 1998, which involved a lumbar laminectomy from L3 through L5 on both sides and a decompression of the nerve roots bilaterally at L4, L5, and SI. Surgery improved Frazier’s leg pain, however, he began experiencing back pain several months later. Dr. Foster sent him to Dr. Dale Gunderson, an orthopedic surgeon, to evaluate him for a fusion. Dr. Foster opined that Frazier’s complaints were caused by his degenerative changes, which were aggravated by his work-related accident. Following surgery, he recommended that Frazier be restricted to sedentary to light duty work.

Dr. Bernauer determined that Frazier had an unstable back and performed surgery on him on May 30, 2000. This surgery, which took approximately five hours, entailed a lumbar anterior interbody fusion of the L4-5 and L5-S1 disc levels using bone from Frazier’s hip, as well as the placement of screws posteriorly into the vertebra at L4, L5, and the tail bone, which hooked into a plate system in order to stabilize his back. Frazier was hospitalized four days as a result of this surgery.

|9Pr. Bernauer testified that Frazier had not yet reached maximum medical improvement and that he had not been released to return to work at the time of the trial. He estimated that it would be at least one year before he could determine whether the fusion had solidified. Once that occurred, he stated that Frazier would undergo a functional capacity evaluation and a three-to-four month work hardening program before he released him for work. After that, Dr. Bernauer testified that he would restrict Frazier to a maximum lifting of twenty-five pounds, repetitive lifting of ten to fifteen pounds, and no stooping, crawling, squatting, bending, or climbing. He further stated that Frazier would have a 50% anatomical disability of his back and that he would restrict him to sedentary to light work. Dr. Bernauer opined that Frazier would never be able to work offshore.

Prior to his accident, Frazier testified that he liked playing basketball, dancing, attending church activities, and doing, outside activities, but that he has been unable to perform any of these activities since the accident. Subsequent to his accident, he stated that it was painful for him to move, which caused him .to limp, his feet to swell, and for him to feel a burning sensation throughout along with pins and needles. He further stated that he was unable to sleep and was taking pain medication at all times. Frazier testified that he suffered a lot of pain during the first surgery, which did not diminish afterwards. He stated that he did not wish to undergo the fusion, but stated that he was glad that he did so, since that • surgery has helped him. He stated that he still has pain if he does not take his pain medication and that he is still being treated by Dr. Goran for pain.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the supreme court discussed the standard to be applied in the review of damage awards:

The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement uf an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and 3through Reck to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

After reviewing the record in this matter, we find that the jury abused its vast discretion by only awarding $50,000 in general damages to Frazier. Considering the effect that this injury has had on him under the particular facts of this case, we feel that the award is too low beyond that which a reasonable trier of fact would assess. After reviewing other cases involving similar injuries, we feel that the lowest amount that a reasonable trier of fact could award for a plaintiff undergoing a laminectomy from L3 through L5, decompression of the nerve roots bilaterally at L4 through SI, and a fusion at two levels resulting in a residual disability of 50% in his back along with the usual accompanying restrictions is $250,000. Accordingly, the judgment of the trial court is amended to increase the general damage award from $50,000 to $250,000.

JjjECONOMIC DAMAGES

In his next assignment of error, Frazier argues that the jury abused its" discretion in only awarding him $100,000 in past lost wages and $50,000 in future loss of earnings and fringe benefits.

The burden of proving a loss of income is on the plaintiff. Sengsouly v. Allstate Ins. Co., 99-22 (La.App. 3 Cir. 6/9/99), 744 So.2d 649, writ denied, 99-2526 (La.11/19/99), 749 So.2d 677. Damages for past lost wages can be calculated with mathematical certainty from the proof submitted at trial and is an exception to the much discretion award. Id. “However, the jury must have a reasonable basis for exercising its discretion, and the record must provide a factual basis for the award.” Myers v. Broussard, 96-1634, p. 17 (La. App. 3 Cir. 5/21/97), 696 So.2d 88, 97. With regard to loss of future earnings, damages need not be proven with mathematical certainty, but only be proven by such proof as reasonably establishes the plaintiffs claim. Veazey v. State Farm Mut. Auto. Ins., 587 So.2d 5 (La.App. 3 Cir.1991). Factors to consider in determining an award for future loss of income include the plaintiffs physical condition before the injury, his work history, work consistency, the amount he probably would have earned absent the injury complained of, and the probability that he would have continued to earn wages for the remainder of his work life. LeBlanc v. Steptore, 98-808 (La.App. 3 Cir. 12/9/98), 723 So.2d 1056, writ denied, 99-0087 (La.3/12/99), 739 So.2d 772.

Past Lost Wages

The jury was presented with testimony from two economic experts pertaining to the economic damages suffered by Frazier. Dr. Charles Bettinger, a Imforensic economist and statistician, testified that Frazier’s past lost wages from the date of the accident up until the date of trial was $148,897. This was based on his actual earnings in 1994 of $28,500, multiplied by 5.42 years, and adjusted to reflect his payment of state and federal taxes and a 6.2% social security benefit of $9,586. Dr. Kenneth Boudreaux, testifying on behalf of Zapata, estimated that Frazier’s past lost wages amounted to $99,144. Dr. Boudreaux reached this amount by averaging Frazier’s wages for 1993 through 1995 and then multiplying that amount, $20,738, by the length of time between his accident and the trial. Because we find that the jury’s award of $100,000 for past lost wages is supported by the record, we cannot say that it erred in awarding that amount. Accordingly, the assignment of error as it pertains to past lost wages is found to be without merit.

Future Loss of Earning Capacity

At the time of the accident, Frazier was thirty-five years old. By the time this matter came to. trial, he was forty years old. He stated that he grew up in Beaufort, North Carolina, and that he finished high school and attended college there for two years, playing basketball and majoring in political science. Frazier testified that he began working for Zapata in 1993 and that he completed the 1993 and 1994 fishing seasons. He stated that he also completed the 1995 fishing season by performing light duty work. Prior to his accident, Frazier stated that he had no history of back problems and that he worked for seventeen years, off and on, as a fisherman.. In addition to working in the fishing industry, Frazier testified that he also worked as a public relations consultant for TWA in 1978, and as a stock manager for a warehouse in Alexandria, Virginia. He explained that his job with TWA entailed | ^greeting passengers and directing them to the correct terminal, while his job as a stock manager involved stocking the warehouse. In addition to working as a fisherman in Louisiana, Frazier stated that he also worked as such in North Carolina and Mississippi.

Prior to his accident, Frazier’s income for 1994 was $28,508. His income for 1995 was $21,150. Frazier worked six months as a pogey fisherman during the pogey season, and then drew unemployment for the remaining six months of the year. In 1994, his wages from Zapata equaled $24,130, while his wages in 1995 were $21,150. He drew unemployment compensation of $4,378 in 1994. After his accident in October 1995, Frazier testified that he was only able to draw unemployment until June 1996.

At the time of the trial, Frazier had not yet reached maximum medical improvement. However, once he reached such a point, Dr. Bernauer testified that he would still have a 50% disability rating for his back. He further stated that Frazier would have to undergo a functional .capacity evaluation and a work hardening program, after which he would be restricted to lifting a maximum of twenty-five pounds, repetitive lifting of ten to fifteen pounds, and no stooping, crawling, squatting, bending, or climbing. Dr. Bernauer further opined that Frazier would never be able tu return to work as a fisherman.

Dr. Bettinger estimated that Frazier had a work-life expectancy of 24.58 years, which he multiplied by $28,500 and then discounted by the present day factor of 2^ %, for a total future loss of earnings of $480,715. He further determined that Frazier’s future loss óf -.fringe benefits from this accident amounted to $244,009: $181 uper day in-meal money for a total of $59,777, $32,163 in Social Security contributions, and $152,069 in health and dental insurance. Dr. Bettinger testified that Frazier would have a total loss of $724,724 if he was totally disabled. If he returned to a minimum wage job over his expected work-life, then Frazier would still suffer a loss in the amount of $517,716.

Dr. Boudreaux determined that Frazier had 16.84 years of work life expectancy from the date of trial. Using $20,738, the average of his earnings from 1993 through 1995, Dr. Boudreaux determined that Frazier’s future loss of earnings would amount to $118,092, if he held a minimum wage job. If Frhzier earned $6.00 per hour, then Dr. Boudreaux determined that his loss would be $95,490. If he earned $7.50 per hour, then his loss would be $58,085. Dr. Boudreaux testified that Frazier’s loss of fringe benefits would be $11,430 for his loss of meal money. He stated that he assumed Frazier would be steadily employed in the future, so he did not include any value for his loss of health insurance and other fringe benefits.

Although Dr. Boudreaux admitted that the majority of pogey fishermen drew unemployment during the six months that they did not fish, he did not include this in figuring Frazier’s income. However, he agreed that unemployment compensation is considered income, and that a pogey fisherman would be losing income if he could no longer work or draw unemployment. Dr. Boudreaux further testified that he arrived at Frazier’s base income by averaging his incomes from 1993 through 1995, despite the fact that he only had a W-2 for 1993, rather than a tax return. He did agree that, if unemployment compensation was considered income, then he could not include 1993 in averaging the income since he did not know how |1Bmuch unemployment compensation Frazier drew that year. Dr. Boudreaux testified that the average of Frazier’s 1994 and 1995 incomes was $24,829. Based on this figure, he determined that Frazier’s future loss of earnings would be $306,905 if he was totally disabled. He stated that this was a mid-range figure and that $330,228 would be a high-end figure.

Dr. Boudreaux stated that the meal costs that Frazier was losing could be as high as $8 per day, but that a moderate range would be $6-7 per day. He testified that Zapata provided Frazier with a typical range of benefits, whose total cost could range between 8-12% over and above his payroll. If Frazier was totally disabled, then his lost benefits should be increased by 10-12%. If Frazier’s loss of future earnings was $250,000 ($25,000 h-10%), then his lost benefits would range from $25,000 to $28,000. If his future loss was $330,000, then his lost benefits would range from $33,000 to $36,000.

Although a jury’s award for loss of earnings is entitled to great deference on review, we find that the jury in this instance has abused its discretion by awarding Frazier only $50,000 for his future loss of earnings. Since this award is based on his future earning capacity, we find that the jury should have considered Frazier’s total past income, and not just his wages from his earnings at Zapata. Even Dr. Boudreaux agreed that the unemployment compensation drawn by Frazier was income and that he would be losing that income if he was no longer able to work as a pogey fishermen or draw unemployment during the off season. Furthermore, we believe that Frazier should, at least, be able to earn minimum wages in the future. Accordingly, we amend the jury’s award for the future loss of earnings from $50,000 to $270,000. |1fiThis includes $200,000 for future lost earnings and $70,000 in lost fringe benefits ($50,000 in health and dental insurance and $20,000 in meal money).

PREJUDGMENT INTEREST

In his next assignment of error, Frazier argues that the trial court erred in failing to award him prejudgment interest because it erroneously dismissed his unseaworthiness claim. However, since' we found no error in the trial court’s dismissal of Frazier’s unseaworthiness claim and this matter was tried before a jury, we find no error in the trial court’s refusal to award him prejudgment interest. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89. This assignment of error is dismissed as being without merit.

COURT COSTS

In his final assignment of error, Frazier argues that the trial court erred in ordering him to pay 40% of his own court costs. La.Code Civ.P. art.1920 provides that the trial court “may render judgment for costs, or any part thereof, against any party, as it may consider, equitable.” The trial court .is entitled to great discretion in its decision to cast costs and will not be reversed on appeal absent an abuse of that discretion. Pelafigue v. Sudduth, 01-807 (La.App. 8. Cir. 5/15/02), 820 So.2d 583. Although the party found liable is generally the party cast with the court costs, we cannot say that the trial court abused its vast discretion in casting Frazier with 40% of his own court costs since he lost on the issue of unseaworthiness. Accordingly, this assignment of error is also dismissed as- being without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended to 1^increase the amount of general damages awarded to the plaintiff-appellant/appellee, Lewis Frazier, from $50,000 to $250,000. The judgment is furthér amended to increase the amount of economic damages from $150,000 to $370,000. The judgment is affirmed in all other respects. The costs of this appeal are assessed -against the defendant-appellee/appellant, Zapata Protein (USA), Inc.

AFFIRMED AS AMENDED.


author: LDOUCET, Chief Judge.

text:
    Michelle Renee BIAS v. Ernest J. VINCENT and Allstate Insurance Company.
    No. 02-642.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Catherine J. Smith, New Orleans, LA, for Plaintiff/Appellant: Michelle Renee Bias.
    Kevin J. Koenig, Raggio, Cappel, Cho-zen & Berniard, Lake Charles, LA, for Defendants/Appellees: Ernest J. Vincent and Allstate Insurance Company.
    Court composed of NED E. DOUCET, JR., Chief Judge, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   LDOUCET, Chief Judge.

Plaintiff, Michelle Renee Bias, appeals a judgment of the district court denying her motion to set aside a prior judgment of the trial court dismissing her suit against Defendants, Ernest J. Vincent and Allstate Insurance Company, for abandonment, i.e., failure to take any step in its prosecution for a period of three years. We affirm the judgment of the district court.

FACTS

Plaintiff was involved in a traffic accident with Defendant, Ernest J. Vincent, on February 15,1997, while both were operating vehicles west-bound on Interstate 10 in Lafayette Parish. At the time of the accident, Mr. Vincent was insured by Allstate Insurance Company. As a result of the accident, Plaintiff filed the instant suit against both Mr. Vincent and Allstate on February 12, 1998. The record reveals that between April 29, 1998, and the filing of Plaintiffs Motion to Set for Trial on the Merits on July 31, 2001, nothing was filed in the record. On August 30, 2001, Defendants filed a Motion to Dismiss on the Ground of Abandonment based upon the provisions of La.Code Civ.P. art. 561. The motion to dismiss was originally heard on November 19, 2001, but due to lack of service on Plaintiffs attorney the judgment rendered that day was set aside and a second hearing was held December 10, 2001. The trial judge ruled in favor of the Defendant, and this appeal followed.

LAW AND DISCUSSION

A comprehensive discussion of the law applicable to motions to dismiss based upon the ground of abandonment can be found in Breaux v. Auto Zone, Inc., 00-1534, pp. 3-6 (La.App. 1 Cir. 12/15/00); 787 So.2d 322, 323-25, writ denied, 01-0172 (La. 3/16/01); 787 So.2d 316 (footnote omitted), wherein our brethren of the first circuit expounded as follows:

La.Code Civ. P. art. 561 as amended in 1997 states, in pertinent part:
A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years,
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall haye thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

To avoid the abandonment of an action, a plaintiff must take a step in the prosecution of his lawsuit, the step must be taken in the trial court, and it must occur within 3 years of the last step taken by either party. Prior to the 1997 amendment, the jurisprudence held that a step was taken by a party when formal action was taken before the court and on the record with the intent to hasten the matter to judgment. See Chevron Oil Co. v. Traigle, 436 So.2d 530 (La.1983); Richey v. Fetty, 96-2762 (La.App. 1 Cir. 4/8/98), 715 So.2d 1, writ denied, 98-2184 (La.11/13/98), 731 So.2d 257.

Article 561 is to be liberally interpreted and any action or step taken to move a case toward judgment should be considered. The article was not intended to dismiss those cases in which plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon his lawsuit. Dismissal of the lawsuit is the harshest of remedies. The law favors and justice requires that an action be maintained whenever possible so that the aggrieved party has his day in court to which he is entitled. Jones v. Phelps, 95-0607 (La. App. 1 Cir. 11/9/95), 665 So.2d 30, writ denied, 95-2907 (La.2/2/96), 666 So.2d 1104. Article 561 is not designed to dismiss actions on mere technicalities but to dismiss those actions which in fact have been abandoned. American Eagle, Inc. v. Employers’ Liability Assurance Corporation, Ltd., 389 So.2d 1339 (La. App. 1 Cir.1980), writs denied, 396 So.2d 885, 886 (La.1981).

Relator contends that the letter and enclosures sent by plaintiffs’ counsel were not before the court or in the record, such that they were not a step in the prosecution. Relator contends that La.Code Civ. P. art. 1474 requires that discovery be served on an adverse party as required in La.Code Civ. P. art. 1313. La.Code Civ. P. art. 1474 states, in pertinent part,

A. Except as otherwise provided by Article 1430, all of the objections, notices, requests, affidavits, interrogatories, and answers to interrogatories, required by any Article in this Chapter to be in writing and served on an adverse party, may be served as provided in Article 1313.
B. Interrogatories and the answers thereto, requests for production or inspection, and requests for admissions and the responses thereto authorized by Article 1421 shall be served upon other counsel or parties, but shall not be filed in the record of the proceedings, unless filing is required under the provisions of Paragraph C of this Article or unless ordered to be filed by the court.
Q_ =1= * *
(4) The serving of any discovery materials pursuant to the provisions of this Article shall be considered a step in the prosecution or defense of an action for purposes of Article 561, notwithstanding that such discovery materials are not filed in the record of the proceedings.
(emph.added).
Article 1313 requires that when service is made by mail, the party or counsel making the service shall file in the record a certificate of the manner in which service was made. While relator does not dispute that plaintiffs’ counsel mailed the letter and reports to relator’s counsel, he contends that plaintiffs did not file in the record a certificate of the manner in which service was made. Relator argues that there is no notation in the record of any such certificate. However, without the |4record before this court, relator did not demonstrate to this court the lack of such a certificate. On the other hand, plaintiffs do not argue that they did file a certificate of service and the suit ledger does not show any such filing.
In Charpentier v. Goudeau, 95-2357 (La.App. 4 Cir. 3/14/96), 671 So.2d 981, the court held that if the party properly mailed an interrogatory to another party, the failure to file in the record an article 1313 certification did not render the service ineffective; such service constituted a step in the prosecution and averted a dismissal for abandonment. The court reasoned that once the interrogatory was mailed as authorized by the article, authorized service of the interrogatory occurred and a step in the prosecution was taken. The court stated that article 1313 did not prescribe any time limit for the filing of the certificate in the record and did not provide that service by mail would lose its effectiveness at some point in time if the certificate was not filed. In Brister v. Manville Forest Products, 32,386, 32,387 (La.App. 2 Cir. 12/15/99), 749 So.2d 881, the Second Circuit found that a notice of deposition served on the adverse party by mail to be formal discovery and that the failure to file the certification of the manner service was made did not defeat the validity of the notice; the court noted that the notice was received by the defendant, as demonstrated by the defendant’s reply letter. As in Brister, in the case at bar, relator’s counsel does not dispute receiving the letter and medical reports. Thus, as in Charpentier and Brister, under the circumstances of the case at bar, the letter is sufficient to interrupt the abandonment period despite plaintiffs’ failure to file a certificate of service in the record. Moreover, relator failed to produce the suit record to demonstrate the lack of a certificate of service, and thus, failed to demonstrate to this court that plaintiffs failed to file it.

While the issue raised in the case sub judice is identical to that raised in Breaux, the facts differ. In the instant suit, Plaintiffs attorney testified that she prepared both Plaintiffs answers to Defendant’s interrogatories and Plaintiffs interrogatories and gave them to her secretary to mail to Defendant’s attorney. The secretary did not testify; thus, there is no evidence that Plaintiffs answers to Defendant’s interrogatories and Plaintiffs interrogatories were actually mailed to Defendant’s attorney. Additionally, Defendant’s attorney testified that he did not remember receiving any such correspondence from Plaintiffs attorney, and that a | ¡¡diligent search of his files failed to produce either Plaintiffs answers to Defendant’s interrogatories or Plaintiffs interrogatories to the Defendant.

Had there been either some proof that the answers to Defendant’s interrogatories and Plaintiffs interrogatories to Defendant had been mailed to defense counsel or an admission by defense counsel that he had received the documents prepared by Plaintiffs counsel, Plaintiff would have prevailed. Likewise, had copies of those documents or the certification required by La.Code Civ.P. art. 1313 been filed in the record, this would have constituted sufficient proof to defeat Defendant’s motion to dismiss.

However, in the case at bar, all we have is Plaintiffs counsel unsupported testimony that she prepared two sets of documents and gave them to her secretary to mail. In opposition we have the testimony of defense counsel that he did not receive the documents prepared by Plaintiffs counsel. Whether or not a step in prosecution of the case was taken after April of 1998 is a question of fact. It is well settled that:

Factual determinations of the trier of fact may not be reversed absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a trial court’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). The appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.
[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its | fiown evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.
Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, pp. 11-12 (La.4/3/02); 816 So.2d 270, 278-79 (emphasis ours). In the case sub judice, Plaintiffs counsel’s version of the facts and Defendant’s counsel’s version of the facts differ. The testimony of both of attorneys was self-serving. Thus, we cannot say that the trial judge’s choice, believing the testimony of one over the other, was clearly wrong.

Accordingly, for the reasons stated, we affirm the judgment of the trial court denying Plaintiffs, Michelle Renee Bias’, motion to set aside a prior judgment of the trial court dismissing her suit against Defendants, Ernest J. Vincent and Allstate Insurance Company, at Plaintiffs cost. All costs of this appeal are assessed against Appellant, Michelle Rene Bias.

AFFIRMED.


author: YELVERTON, Judge.

text:
    Pam MURPHY v. BROOKSHIRE GROCERY COMPANY.
    No. 02-808.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Glynn Shelly Maturin, II, Esq., Galloway & Jeffcoat, Lafayette, LA, for Plain-tifPAppellee, Pam Murphy.
    Charles J. Foret, Briney & Foret, Lafayette, LA, for Defendant/Appellant, Brookshire Grocery Company.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   YELVERTON, Judge.

Brookshire Grocery Company appeals a workers’ compensation judgment claiming that the trial court erred in finding that Pam Murphy did not violate Louisiana Revised Statute 23:1208 and in finding that she suffered a work-related accident. We find no error, and affirm.

FACTS

Murphy went to work for Brookshire at the Super 1 grocery store in Lafayette in August 1998 as a cashier. On April 10, 2001, she was helping out in the bakery department because someone was on sick leave. She was the closing person and was in the process of cleaning the area. She picked up a cookie cutting machine and placed it in the dishwasher. As she did, she felt something pull and burn in her neck.

She told David Boudreaux, the grocery manager, about the incident. Murphy then went on break. Murphy explained that she thought she had pulled a muscle and that the pain would get better, but it only got worse as the days went by. She finally saw Dr. Richard Feucht on April 23, 2001, after she aggravated the problem by pulling on a bag of dog food while checking out a customer. Her last day to work was May 23, 2001, when an MRI revealed that she had a herniated disc, so she was placed on light-duty status. The store did not have a position for her that was light-duty at the time.

Initially, Murphy received workers’ compensation benefits, but Brookshire terminated these benefits in July 2001, after approximately eight weeks. Murphy then filed the present claim. The trial court found that Murphy proved that she suffered a work-related accident, and that as a result, she was entitled to temporary, total disability benefits and reasonable and necessary medical expenses.

J^SECTION 1208 VIOLATION

Brookshire first argues that the trial court erred in finding that Murphy did not violate Louisiana Revised Statute 23:1208 which provides in pertinent part:

A. It shall be unlawful for any person for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself -or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

“The only requirements for forfeiture of benefits under Section 1208 are 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.” Resweber v. Haroil Const Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. “The issue of whether an employee forfeited his workers’ compensation benefits by willfully making false statements in order to obtain benefits is one of fact, which is not to be reversed on appeal absent manifest error.” Bibbins v. Sonny’s Pizza, Inc., 01-1524, pp. 4-5 (La.App. 1 Cir. 6/21/02), 822 So.2d 79, 82.

Brookshire alleges that Murphy lied on two separate occasions when she gave a deposition about the events surrounding a 1997 vehicular accident. It claims that she lied when she denied being hurt in the vehicular accident and when she stated that she never hurt her neck before. Although the workers’ compensation judge did not specifically rule on the forfeiture issue, it is well established that a when a judgment is silent as to an issue, the issue is considered rejected. Baker Hughes, Inc. v. Ardoin, 99-1217, 99-1218 (La.App. 3 Cir. 2/2/00), 758 So.2d 830, writ granted in part on other grounds and denied in part, 00-681 (La.4/20/00), 759 So.2d 771. This is especially true since the judgment was in Murphy’s favor. Therefore, we will review 13the evidence to determine whether the workers’ compensation judge was clearly wrong in finding that Murphy did not forfeit her right to benefits.

Murphy never denied that she was involved in a vehicular accident in 1997. However, she did state that she never injured her neck before. Medical records indicate that Murphy went to the hospital after the wreck complaining of neck and back pain. Furthermore, a suit filed on behalf of Murphy for the accident demanded damages for injuries.

When asked at trial to explain her denial, Murphy testified that she did not think that a whiplash was an injury. The record reveals that Murphy was very forthcoming about the fact that she was in an accident and never tried to conceal this fact. While it appears that Murphy may have had a neck problem following the wreck, there is no evidence in the record to indicate that these problems continued past a few months after the accident. It is understandable that Murphy perceived that a whiplash would not qualify as the type of injury that the attorney was asking her about. As can be seen from her testimony in this case, she also thought that the neck problems from the present incident would resolve and were not serious. We do not find that the workers’ compensation judge was clearly wrong in finding that Murphy’s answers were not willful, but probably more in the line of a misunderstanding as to whether whiplash would qualify as an injury. Furthermore, the workers’ compensation judge found Murphy to be a credible witness which we will explain further in the next section.

| OCCIDENT

Brookshire alleges that even if we do not find that Murphy forfeited her right to receive benefits, that the workers’ compensation judge erred when she found that Murphy sustained a work-related accident despite the substantial evidence which cast serious doubt upon her version of events.

Proof of an accident must be by preponderance of the evidence, and a claimant’s testimony alone may be sufficient to discharge this burden, provided two elements are satisfied. First, no other evidence must discredit or cast serious doubt upon the claimant’s version of the incident, and second, his testimony must be corroborated by circumstances following the alleged incident. Bruno v. Harbert Intern., Inc., 593 So.2d 357 (La.1992); Honeycutt v. Elbert Walker Construction, 01-1291 (La.App. 3 Cir. 2/6/02); 815 So.2d 1011. Corroboration of the claimant’s testimony may be provided by the testimony of co-workers, spouses, Mends, or by medical evidence. Bruno, 593 So.2d 357. Barring circumstances that cast suspicion on the reliability of the claimant’s uncontradicted testimony, the trial court should accept the testimony as true when determining whether he has discharged his burden. Id; Honeycutt, 815 So.2d 1011. These determinations are factual in nature and will not be disturbed unless clearly wrong or manifestly erroneous. Id.

Tate v. Cabot Corp., 01-1652, pp. 9-10 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 463.

Brookshire claims that the medical evidence casts serious doubt upon Murphy’s version of what occurred, buttressed by the fact that her credibility is at issue. Brookshire speculates that the reason for this finding is that the workers’ compensation judge did not review the medical evidence.

In ruling from the bench, the workers’ compensation judge indicated that she had reviewed exhibits in the record that were introduced before trial and she recognized that there were some inconsistencies in the record. The judge based her ruling primarily on the testimony of Boudreaux, the grocery manager, that corroborated that a work-related accident occurred. She further found that Murphy was consistent in discussing both the vehicle accident and the accident at Super 1, and that in her mind a pulled muscle was not an injury, which was in accord with I.JBoudreaux’s testimony that he was reluctant to file an accident report when he did not feel that there was something obviously wrong. The workers’ compensation judge then left the record open to review a surveillance video, which did not change her opinion, as explained in supplemental reasons for judgment.

Murphy testified that she called for someone to help her with the cookie machine, but no one ever came, so she lifted it herself to place it in the dishwasher. She explained that Boudreaux showed up later and she told him that she had already lifted the machine. She asked him if she could take a break because she felt like she pulled something in her neck and it was burning. He offered to fill out an accident report, and she told him she did not think that she was hurt but that she just suffered a pulled muscle.

Boudreaux confirms Murphy’s testimony that she had been paging him but testified that he did not come because he was busy at the time. His testimony differs from Murphy’s in that he claims she told him she needed help moving the machine because she tried and could not. He explained that he moved it from the sink to the dishwasher and that she mentioned she might have to fill out an accident report because of her neck. She then asked him if she could take a break.

Boudreaux also explained that he did not fill out an accident report because Super 1 does not like filling out accident reports unless someone is obviously hurt. He did not report the incident to anyone else.

Murphy testified that she continued working but the pain got worse each day. She finally went to see Dr. Richard Feucht at the Stafford Health Care Clinic on April 23, 2001, explaining that pulling a bag of dog food across the checkout counter had aggravated the condition. Dr. Feucht’s records confirm this, even though the records | leyere marked that it was not a work-related injury. She was referred for treatment at the Physical Therapy Clinic.

She saw Dr. Feucht again on May 23, 2001, with left-sided neck pain that was not improving. X-rays were taken which revealed spurring at C5 and some questionable disc space narrowing at C4-5, C5-6. It was recommended that she have an MRI. Dr. Feucht placed her on light duty at that time.

It was at this time that Murphy approached David P’Pool, apparently a manager at Super 1, and an accident report was filled out. Murphy approached P’Pool to request light-duty work as required by her doctor, but P’Pool informed her that he did not have anything available. This was the last day she worked. At this time she was placed on temporary total disability benefits which were discontinued in July, 2001.

She returned to the doctor on May 31, 2001, with continuing neck pain. An MRI was finally performed on June 20, 2001, which revealed a disc herniation at C4-5.

After reviewing the record, we agree with the workers’ compensation judge that while there are some inconsistencies in the record, the record as a whole supports Murphy’s explanation that she did suffer an accident, that she did not think it was a serious problem initially, and that she did not want to make a claim for workers’ compensation until she realized how serious her neck problem was. We find that Murphy has proven by a preponderance of the evidence that she suffered a work-related accident which has resulted in disability.

For the above reasons, we find no error in the judgment of the Office of Workers’ Compensation. The judgment is affirmed at Brookshire Grocery Company’s costs.

AFFIRMED.


author: bDECUIR, Judge.

text:
    John L. JOHNSON v. ST. PATRICK HOSPITAL.
    No. 02-0828.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Scott J. Pias, Attorney at Law, Lake Charles, LA, for John L. Johnson.
    Todd M. Ammons, Stockwell, Sievert, Viceellio, Clements & Shaddock, Lake Charles, LA, for St. Patrick Hospital.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   bDECUIR, Judge.

This is an appeal from a workers’ compensation judgment rendered in favor of the employer. John L. Johnson was employed by St. Patrick’s Hospital when he was injured in the course and scope of his employment on February 11, 1999. St. Patrick’s Hospital paid indemnity and medical benefits, but a dispute arose during the course of medical treatment over the need for a particular drug prescribed by a pain management specialist. When the hospital refused to pay for the drug, Johnson filed this disputed claim for benefits. Judgment was rendered in the Hospital’s favor, and Johnson appeals.

The record before us does not contain a transcript of the hearing conducted by the workers’ compensation judge. Because of the death of the court reporter and an inaudible tape recording, a transcript could not be produced. Nevertheless, the exhibits offered into evidence and the parties’ post-trial memoranda are included in the record and provide us with a sufficient account of the proceedings below in order for us to render a just decision.

The record reveals that in January of 2001, Johnson was under the care of Dr. Frank Lopez, a pain management physician, when he was given a prescription for Ritalin. Dr. Lopez wrote in his office notes that he was prescribing Ritalin to treat Johnson’s depression and adult attention deficit disorder. Dr. Lopez later changed the prescription to Serzone. Initially, the Hospital paid for the prescription, but after questioning the connection between Johnson’s treatment for back pain and what Dr. Lopez characterized as depression medication, the Hospital denied further payment for the drug. The Hospital gave two reasons for its denial: first, that the drug was not prescribed by a psychiatrist or psychologist as required by La.R.S. 23:1021(7), and second, that the condition for which the drug was prescribed was not related to the | ^employment injury. The Hospital also refused to approve treatment by a mental health professional.

Johnson then saw a psychologist, Dr. Jerry L. Whiteman, for a mental status examination. In a written report, Dr. Whiteman diagnosed Johnson with depression associated with chronic pain resulting from his employment-related injury. In deposition testimony, however, Dr. “White-man was unable to state whether Johnson’s depression was more probably than not caused by his chronic pain. Nor could he say if the relationship between the pain and the depression was clear and convincing. Dr. WJiiteman’s report and deposition were made a part of the record.

Several months later, the Hospital sent Johnson to Dr. Kevin Bianchini, a neurop-sychologist. After meeting with Johnson and reviewing test results and medical records, Dr. Bianchini concluded that Johnson has long-standing psychiatric and psychological problems that require treatment but are unrelated to his employment injury. Dr. Bianchini’s twelve page report was submitted into evidence.

The workers’ compensation judge ruled that St. Patrick’s Hospital did not have to pay for the drug Serzone, which was prescribed by Dr. Lopez as part of his pain management therapy. The judge also ruled that the Hospital was not arbitrary and capricious in failing to approve a psychiatric or psychological visit and that neither penalties nor attorney’s fees were due.

We agree with the ruling of the workers’ compensation judge. After reviewing the evidence, we conclude Johnson did not meet his burden of proving a correlation between his depression and the employment injury he suffered in 1999. The workers’ compensation act requires proof by clear and convincing evidence in a case such as this, as this court has previously explained:

An employee has to prove by clear and convincing evidence that his mental injury or illness was caused by a work related accident. |3La.R.S. 23:1021(7)(b). The new “clear and convincing” standard is a heavier burden of proof than the usual civil case of “preponderance of the evidence” standard but is less burdensome than the “beyond a reasonable doubt” standard of a criminal prosecution. Lannes v. Jefferson Door Co., 638 So.2d 250 (La.App. 5 Cir. 1994). To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; that is, much more probable than its nonexistence. Hines v. Williams, 567 So.2d 1139 (La. App. 2 Cir.), writ denied, 571 So.2d 653 (La.1990).

Bundren v. Affiliated Nursing Homes, 94-808, p. 2 (La.App. 3 Cir. 2/1/95), 649 So.2d 1177, 1179.

Additionally, the compensation act requires that a diagnosis of a mental injury or illness be made by a mental health professional. See La.R.S. 23:1021(7)(d). Contrary to Johnson’s characterization of this requirement as “hyper-technical,” we note the law is clear and unambiguous, and we do not fault the Hospital for relying on this legislative pronouncement.

After reviewing the record before us, we find no error in the denial of medical benefits for the drug Serzone and in the rejection of Johnson’s request for a mental health evaluation. We agree with the finding that St. Patrick’s Hospital was not arbitrary and capricious in its handling of this dispute; accordingly, the Hospital was properly found not liable for penalties and attorney’s fees.

For the foregoing reasons, we affirm the judgment rendered below at plaintiffs cost.

AFFIRMED.