author: [JOHN D. SAUNDERS, Judge.

text:
    Herbert ROBIN and Mary A. Robin v. ALLSTATE INS. CO.
    Nos. 03-1009, 03-0926.
    Court of Appeal of Louisiana, Third Circuit.
    March 24, 2004.
    Rehearing Denied May 5, 2004.

      Judy Y. Barrasso, Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., New Orleans, LA, for Defendant/Appellee, Allstate Ins. Co.
    Larry Lane Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Appellee, Marie Candice Hattan.
    Ped C. Kay, III, Broussard & Kay, Lafayette, LA, for Plaintiff/Appellant, Herbert Robin and Mary A. Robin.
    Russel Oliver Primeaux, Kean, Miller, Hawthorn, D’Armond, McCowan, & Jar-man, Baton Rouge, LA, for DefendanVAp-pellee, Computer Sciences Corp.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   [JOHN D. SAUNDERS, Judge.

This is an action by insureds against their automobile liability insurer for damages resulting from the insurer’s alleged breach of contract, bad faith, and various tort claims. Mr. Robin appeals the trial court’s ruling sustaining Allstate’s exception of no cause of action dismissing Mr. Robin’s tort claims against Allstate. Mr. Robin also appeals the trial court’s ruling in Allstate’s favor, dismissing Mr. Robin’s remaining claims with prejudice. We affirm the rulings of the trial court.

FACTS

The facts of the accident giving rise to this action, and much of the procedural history of this matter, have been presented in Knepper v. Robin, 99-95 (La.App. 3 Cir. 11/17/99), 745 So.2d 1248, writ granted in part and judgment rev’d in part, 99-3572 (La.2/18/00), 754 So.2d 955, and Robin v. Allstate Ins. Co., 02-689 (La.App. 3 Cir. 2/5/03), 844 So.2d 41, writ denied, 03-1818 (La.10/17/03), 855 So.2d 763. The relevant facts are as follows:

Knepper, 745 So.2d at 1250, sets out the facts for the underlying automobile accident which is the source of the present lawsuit as follows:

On June 15, 1994, Elizabeth Knep-per, hereinafter “Plaintiff,” was involved in an automobile accident with Herbert Robin, hereinafter “Defendant,” which occurred on Interstate 10 in St. Martin Parish. Defendant was operating a Chevrolet Blazer, traveling in the eastbound passing lane, when his vehicle crossed the grass median and struck Plaintiffs Honda Civic, which was traveling in the westbound passing lane. Defendant’s vehicle struck the side of Plaintiffs vehicle, sending her Honda Civic spinning. Defendant’s truck was totaled, and Plaintiffs vehicle was smashed and fire damaged. Plaintiff was flown by helicopter from the scene of the accident to the Lafayette General Medical Center where she received treatment; she was not held overnight. She returned two days later complaining of left shoulder pain. She was ultimately treated by various doctors for TMJ, an extruded disc fragment in her lower back and depression.

Knepper was awarded $45,500 in general damages and $26,500 for future medical expenses. This court increased the damage awards by |2a total of $64,640, for a total damage award of $164,640. This court also awarded “$10,000 for costs and attorney’s fees associated with proving Defendant’s liability made necessary by Defendant’s failure to admit the same.” Id. at 1259. This award for costs and attorney’s fees was reversed by the supreme court. Therefore, the final judgment was $64,640 in excess of the $100,000 policy limits issued by Allstate covering Mr. Robin’s liability for this accident.

The present litigation commenced on November 16, 2000, when the Robins filed suit against Allstate for bad faith damages under La.R.S. 22:658 and 22:1220, breach of contract damages, and general tort damages. An amending petition was filed naming M. Candace Hattan and M. Candace Hattan, a Professional Law Corporation, as defendants on December 26, 2001.

Robin, 844 So.2d at 44.

The trial court granted an exception of no cause of action and dismissed M. Candice Hattan and M. Candice Hattan, a Professional Law Corporation, finding that, under La.R.S. 9:5606, the action by the Robins was preempted. Prior to trial, the trial court also granted Allstate’s exceptions of no cause of action and dismissed all of the Robins’ tort claims with prejudice. After a six-day trial on the merits concerning Mr. Robin’s allegations of bad faith and breach of contract, Judge de-Mahy held that Allstate’s actions were not arbitrary or capricious, and that the settlement offers made by Allstate were reasonable at the time they were made.

In his ruling during the trial on the merits, the Judge deMahy stated:

In considering the evidence presented, much emphasis was placed on the casualty core processing redesign which was adopted by Allstate, and use of the Colossus computer program in assessing cases. The use of the Colossus computer program, based on the evidence that was presented, was not the exclusive method of determining evaluation, but was a tool used by adjusters, among others.
In deciding whether or not Allstate was arbitrary and capricious or acted in bad faith in failing to settle the claim within policy limits, their action or inaction must be considered in light of the information that they had or should have had at the time these decisions were made. In considering what information they had at various times and what their assessment of the damages were on each of those occasions, I find that |sthey were not arbitrary and capricious in failing to settle at policy limits, which was the only offer that was ever made by the plaintiff, was to settle at the policy limits. At the various times, the offers that were made by Allstate were reasonable considering the information available.
And the handling of the defense by Candace Hattan and the Allstate adjusters, I find did not breach their obligation to defend Mr. Robin. Therefore, I will dismiss the plaintiffs claims at his cost.

Mr. Robin presents the following assignments of error for our review:

1. The trial court erred, as a matter of law, when it granted Allstate’s Exception of No Cause of Action dismissing Robin’s tort claims, including those tort theories for breach of good faith and fair dealing, breach of fiduciary duty, bad faith/negligence/intentional [sic], intentional infliction of emotional distress, and abuse of process.
2. The trial court erred when it decided that Allstate was not liable for a breach of contract claim based on the facts of this case.
3. The trial court erred when it decided that Allstate did not act in bad faith when handling Robin’s underlying claim in the Knepper matter.
4. The trial court erred when it decided that Allstate’s policies, practices and procedures did not constitute bad faith and/or breach of contract and/or a tort based on the facts of this case.
5. The trial court erred when it failed to give an adverse presumption to Allstate’s decision not to call Ms. Christine Sullivan after plaintiffs expert testified regarding Allstate’s policies, practices, and procedures.
6. The trial court erred when it excluded Allstate’s Implementation Training Manual in light of the trial court’s previous order.
7. The trial court erred when it failed to sanction Allstate for its intentional violation of a court order with regard to certain documents it was ordered to produce in discovery.
8. The trial court erred when it failed to sanction Allstate for thwarting plaintiffs discovery efforts.
9. The trial court erred when it admitted certain inadmissable evidence, including but not limited to certain issues raised in plaintiffs motion in limine.
10.The trial court erred when it dismissed plaintiffs case and failed to award damages.

| ¿STANDARD OF REVIEW

We begin by noting the well established rules of appellate review of jury and trial court decisions.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and 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 own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).

[T]he appellate court’s disagreement with the trial court, alone, is not grounds for substituting its judgment for that of the trier of fact. Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1983). If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, supra. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

DISCUSSION

Allstate’s Motion to Strike

We begin by addressing the preliminary matter of Allstate’s Motion to Strike, which was referred on the merits. In its motion, Allstate requests that we strike certain elements of Mr. Robin’s brief, including several citations to proffered documents as well as their corresponding arguments, the section entitled “Allstate’s |BPiscovery Abuse”, and exhibits C, D, E, and F of Mr. Robin’s brief. We grant Allstate’s motion with respect to exhibits C through F of Mr. Robin’s brief, as they are not a part of the record on appeal. We take notice of these documents to the extent that they are discussed in the trial transcript or appear in the trial record, however, the documents attached to the Robins’ brief will be stricken. We deny Allstate’s motion with respect to Mr. Robin’s references to proffered documents. We also deny Allstate’s motion with respect to Mr. Robin’s argument entitled “Allstate’s Discovery Abuse.” However, we note that following our thorough review of the record and the trial transcript, we find no evidence of discovery abuse on the part of Allstate during the course of this trial. Therefore, we find that Mr. Robin’s argument that the trial court erred in failing to impose sanctions against Allstate is without merit.

Mr. Robin’s Assignments of Error

Mr. Robin alleges that Allstate failed to fulfill its contractual obligation to defend him in the suit filed by Ms. Rnepper following the automobile accident of June 15, 1994. He also claims that Allstate acted in bad faith in the handling of his claim, and was arbitrary and capricious in failing to settle the claim within the policy limits when first given the opportunity to do so.

Mr. Robin claims that Allstate’s actions in handling this matter constitute bad faith and are a violation of La.R.S. 22:658 and 1220.

La.R.S. 22:658 states, in relevant part:
A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
_k- • • •
(3)Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.

And La.R.S. 22:1220 provides, in relevant part:

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The 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. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. 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.

Assignment of Error Number 1 — Exception of No Cause of Action

In his first assignment of error, Mr. Robin argues that the trial court erred as a matter of law by granting Allstate’s exception of no cause of action and dismissing the Robins’ tort claims. Allstate argues that, the supreme court’s ruling in Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, La.R.S. 22:1220(B) provides an exclusive list of the “extra-contractual or tort-like” claims actionable against an insurer for an alleged breach of the insurer’s duty of good faith and fair dealing. As Mr. Robin does not present any of the claims allowable under La.R.S. 22:1220(B), he has failed to state a valid cause of action as to his tort claims.

We find the trial court did not err in granting Allstate’s exceptions of no cause of action with respect to the Robins’ tort claims. Additionally, even had the trial court’s grant of no cause of action been in error, for the reasons stated below we find no breach of Allstate’s contractual duty to defend Mr. Robin, and no negligence or bad faith in Allstate’s inability to settle the claim below Mr. Robin’s policy limits. Therefore, the Robins’ tort claims are without merit.

Assignments of Error Numbers 2-1 — Bad faith/Breach of Contract

We next address Mr. Robin’s assignments of error concerning the trial court’s decision, following a trial on the merits, rendering judgment in favor of Allstate and against Mr. Robin and dismissing his claims with prejudice. Mr. Robin claims that Allstate acted in bad faith when handling the claim involving his accident with Ms. Knepper. Additionally, Mr. Robin argues that Allstate’s failure to settle his claim with Ms. Knepper at or below his policy limits constitutes a breach of its insurance contract with him.

The threshold question in this matter is whether Allstate failed to make reasonable efforts to settle the matter before and during the trial. The question of the reasonableness of Allstate’s various settlement offers, and its refusal of offers made by Ms. Knepper, must be evaluated on the basis of whether they were reasonable at the time they were made or rejected. The Robins insist that Allstate repeatedly |srefused reasonable settlement offers made by Ms. Knepper and forced the matter to trial unnecessarily. He contends that Allstate’s actions unnecessarily exposed him to an excess judgement.

Allstate argues that, given the information it possessed at the time each settlement offer was on the table, its actions were reasonable. Allstate insists that it conducted a thorough investigation, and made several attempts to obtain Ms. Knep-per’s medical information and to settle the claim before trial. It counters that Mr. Kay, the attorney for Ms. Knepper in the original matter, and now the attorney for the Robins here, repeatedly failed to respond to its requests for information and attempted to hide IME results. Allstate contends that it only had two opportunities to settle at Mr. Robin’s policy limits, and at the time the offers to settle were made no one at Allstate reasonably believed the case presented a danger of excess exposure or even approached the policy limits. Allstate notes that, even at trial, the original jury verdict was within the policy limits and the trial judge refused to increase the award upon Mr. Kay’s request for an excess verdict through a JNOV motion.

Determining whether an insurer’s refusal to settle a claim prior to going to trial was arbitrary and capricious is highly fact specific. For this reason, the findings of the trial court should not be overturned on appeal absent clear error. Rogers v. Government Employees Ins. Co., 598 So.2d 670 (La.App. 3 Cir.), writ denied, 605 So.2d 1364 (La.1992). It is well settled within this circuit that a determination of whether an insurer’s refusal to pay a claim is arbitrary and capricious, or without probable cause, hinges on the facts known by the insurer at the time a decision to refuse to pay the claim is made. Myers v. Broussard, 96-1634 (La.App. 3 Cir. 5/21/97), 696 So.2d 88. Due to the penal nature of La.R.S. 22:1220, the statute must 19be strictly construed. Theriot, 694 So.2d 184. Additionally, where the insurer has presented a reasonable defense for its failure to timely tender payment, the penalty provisions of La.R.S. 22:1220 should not apply. Perkins v. Guaranty Nat'l Ins. Co., 95-229 (La.App. 3 Cir. 11/2/95), 667 So.2d 559, writ denied, 96-759 (La.5/31/96), 673 So.2d 1033.

In Smith v. Audubon Ins. Co., 95-2057, pp. 7-10 (La.9/5/96), 679 So.2d 372, 376-77, the supreme court stated:

In the absence of bad faith, a liability insurer generally is free to settle or to litigate at its own discretion, without liability to its insured for a judgment in excess of the policy limits. William Shelby McKenzie & H. Alston Johnson, III, 15 Louisiana Civil Law Treatise-Insurance Law and Practice §218 (1986). On the other hand, a liability insurer is the representative of the interests of its insured, and the insurer, when handling claims, must carefully consider not only its own self-interest, but also its insured’s interest so as to protect the insured from exposure to excess liability. Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1978[1977]) (on rehearing). Thus, a liability insurer owes its insured the duty to act in good faith and to deal fairly in handling claims. Id.
Thus, the determination of whether the insurer acted in bad faith turns on the facts and circumstances of each case. Of course, an insurer is not obliged to compromise litigation just because the claimant offers 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. Nevertheless, when an insurer has made a thorough investigation and the evidence developed in the investigation is such that reasonable minds could differ over the liability of the insured, the insurer has the right to choose to litigate the claim, unless other factors, such as a vast difference between the policy limits and the insured’s total exposure, dictate a decision to settle the claim.

Additionally, in Myers, 696 So.2d at 103, this court held:

To be successful under La.R.S. 22:658, a plaintiff must prove that |inthe insurer received satisfactory proof of loss, failed to pay the claim within thirty days after receiving sufficient proof of loss, and such failure to timely tender a reasonable amount was arbitrary and capricious. Khaled [v. Windham], 94-2171 [(La.App. 1 Cir. 6/28/95)]; 657 So.2d 672. The supreme court has defined “sufficient proof of loss” as follows:
that which is sufficient to fully apprise the insurer of the insured’s claim. To establish a “satisfactory proof of loss” of an uninsured/underin-sured motorist’s claim, the insured must establish that the insurer received sufficient facts which fully apprise the insurer that (1) the owner or operator of the other vehicle involved in the accident was uninsured or un-derinsured; (2) that he was at fault; (3) that such fault gave rise to damages; and (4) establish the extent of those damages.
McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1089 (La.1985) (citation omitted).
Whether a refusal to pay a claim is arbitrary, capricious, or without probable cause hinges on the facts known to the insurer at the time of its refusal to pay the claim. Wells v. Houston, 95-202 (La.App. 3 Cir. 6/7/95); 657 So.2d 474, writ denied, 95-1733 (La.10/13/95); 661 So.2d 500. The determination of whether an insurer’s handling of a claim is arbitrary or capricious is one of fact, which should not be disturbed on appeal unless it is manifestly erroneous. Kha-led, 94-2171; 657 So.2d 672. However, the provisions of La.R.S. 22:658 are penal in nature and should be strictly construed. Perkins v. Guaranty Nat’l Ins. Co., 95-229 (La.App. 3 Cir. 11/2/95); 667 So.2d 559, unit denied, 96-0759 (La.5/31/96); 673 So.2d 1033. If an insurer, in good faith, has presented a reasonable defense for its failure to timely tender payment, then these penalty provisions should not apply. Id.

In order to fully evaluate the validity of Mr. Robin’s claim it is necessary look at the history of settlement attempts in this matter and determine what information Allstate had at the time the various offers were made. Based on uncontrovert-ed testimony presented at trial, Allstate initiated investigation of the Knepper/Rob-in accident June 16, 1994, the day after it occurred. On June 17, 1994 Allstate met with Mr. Robin and took a taped statement from him about the accident. Allstate requested an offer to settle from Ms. Knep-per on June 27, 1994, approximately two weeks after the accident. She refused any attempt to settle, indicating that she wanted | vito consult an attorney. She retained Mr. Kay immediately and he made no response to this initial attempt by Allstate to settle.

Following our review of the trial transcript and the record on appeal, it appears that what followed was a series of attempts by Allstate to obtain medical information about Ms. Knepper and her medical condition, as well as repeated attempts to obtain settlement offers from her attorney. There appears to have been great difficulty contacting Ms. Knepper’s attorney, gaining access to her available medical records, and obtaining any settlement package from her. This continued for a span of approximately two years, until July of 1996, when Allstate was notified by Ms. Khepper’s attorney that he was working on a settlement offer.

On August 2, 1996, Allstate received Ms. Khepper’s first settlement package. In that offer she requested settlement of the claim at Mr. Robin’s $100,000.00 policy limits. In this original settlement offer from Ms. Knepper her total medical expenditures to date were $7,133.19. She stated a probable need for future surgical treatment of her TMJ and back, with an estimate of future medical expenditures of $30,000.00, and finally, estimated general damages of $135,000.00. Mr. Robin argues that this original settlement package constituted sufficient proof of loss on the part of Ms. Knepper concerning her medical status, and Allstate’s decision to refuse this settlement offer was arbitrary and capricious.

Allstate notes that the documentation provided with this settlement offer from Ms. Knepper primarily included medical bills for past medical treatment. There was a very limited amount of actual medical evaluation and diagnosis provided at this time, and the medical evaluations provided indicated splint therapy was recommended for TMJ treatment. There is no reference in any of the medical | ^evaluations provided with the August settlement offer that future surgical treatment will be required, or even recommended, for the TMJ. Additionally, the majority of the medical evaluation with regards to her back injuries came from Dr. E.A. Blake, a chiropractor. There is no recommendation in the medical records provided for any future neck or back surgery. In fact, the only medical evaluation provided from an orthopaedic physician at this point was from a Dr. Richard Shure at Jewett Orthopaedic Clinic in Orlando Florida. The focus of this evaluation was exclusively addressing Ms. Knepper’s complaints of left thumb pain resulting from the accident. There is no mention in this evaluation of any neck or back problems. Allstate found Ms. Knepper’s failure to mention her back pain to her orthopaedic physician suspect.

At this point Allstate had repeatedly evaluated the claim, continuing to increase the value of the claim from its initial $2,000.00 estimate immediately following the accident, to between $18,000.00 and $24,000.00 by the time this first offer was received from Ms. Knepper. As a result of Allstate’s assessment of the value of the claim, as well as the factors mentioned above, Allstate refused this offer of settlement. Allstate responded on September 24, 1996, with a counter offer to settle at $22,000.00, a figure Allstate felt reasonable based on the medical expenses incurred to date and the evidence they had of reasonable and necessary future medical expenses.

There were no further attempts by Ms. Knepper to settle the matter until July 1, 1997, when she once again sought a settlement from Allstate of $100,000.00, plus judicial interest and costs. This offer remained open for 15 days. At the time Ms. Knepper presented this offer her past medical expenses totaled $10,775.00. Allstate notes that she had missed no significant amount of work, had not been hospitalized, [13and still had no medical evaluations or doctor recommendations suggesting that she undergo jaw surgery for TMJ or back surgery.

Allstate claims that, at the time of this second offer it had not received any updated medical records regarding Ms. Knep-per’s injuries. Allstate states that additional medical records and reports were not received until July 23, 1997, more than a week after the July 1, 1997 settlement offer had expired. Even after receiving these updated medicals Allstate argues that they still did not support Ms. Knep-per’s policy limit demand. Dr. Kornberg, her orthopaedic surgeon in Florida, had not recommended surgery for her back, prompting Ms. Knepper to seek an independent medical evaluation from Dr. Freidman, another orthopaedic physician, in September of 1995. Despite the existence of this medical evaluation prior to the first settlement offer made by Ms. Knepper in August of 1996, Allstate did not learn of it until the July 1, 1997 offer. During his evaluation of Ms. Knepper in 1995 Dr. Freidman diagnosed her with chronic neck and low back pain, stating that the patient had very scant symptoms at the time of the evaluation. Dr. Freid-man did not feel there was a need for further medical treatment and indicated that Ms. Knepper was at maximum medical improvement.

Ms. Knepper’s verified past medical expenses at the time of the July settlement offer totaled $11,789.00, a large portion of which was transportation and emergency room expenses on the day of the accident, and diagnostic services including MRIs. This settlement package also included, for the first time, a psychiatric evaluation. Allstate particularly notes that Ms. Knep-per did not seek psychiatric care, a significant source of her requested future medical expenses, until February of 1997, almost three years after the accident. Allstate argues that this lapse in treatment |14raised a significant question of causation.

Allstate continued to reevaluate the value of Ms. Knepper’s claim, and at the time it received the settlement offer on July 1, 1997, it had increased the evaluation of the claim to a range between $50,000.00 and $60,000.00. Allstate still felt the evidence did not support a policy limits settlement for Ms. Knepper’s claim, and still had not received medical reports or any diagnosis indicating that jaw or back surgery was recommended as a part of Ms. Knepper’s future medical treatment.

The trial date was set for October 28, 1997. Depositions of Ms. Knepper’s Florida doctors, Dr. Kornberg, Dr. Blankemeier, and Dr. Fusilier, were originally set for August 14, 1997. At the request of Ms. Knepper’s attorney, these depositions were repeatedly rescheduled and postponed, finally occurring October 24, 1997, the Friday before the trial was to begin. Ms. Knepper underwent another MRI on October 27, 1997, the day before trial. At this time Allstate re-evaluated the claims at $75,000.00 to $85,000.00, after including the last minute updated information regarding Ms. Knepper’s medical status. Ms. Hat-tan, Allstate’s attorney, sent a letter to Ms. Knepper’s attorney attempting to settle the claim for $75,000.00 in the hopes of avoiding trial. She received no response to this settlement offer from either Ms. Knepper or her attorney.

During the trial Mr. Robin’s testimony gave Allstate and its attorney some concern. He was described by the trial judge as “a confused, combative, irritated witness.” Additionally, while an October 15, 1997 letter from Dr. Clifton Shepherd to Ms. Knepper’s attorney outlining her medical condition included no recommendation for back surgery, during his testimony at trial less than three weeks later Dr. Shepherd changed his diagnosis to include a recommendation that Ms. |1fiKnepper undergo back surgery. In addition to these concerns, one of Mr. Robin’s witnesses, expected to support his contention that he was not intoxicated the morning of the accident, disappeared.

After these events occurred, Allstate attempted to settle with Ms. Knepper for $90,000.00. Ms. Knepper refused anything below Mr. Robert’s policy limits, plus legal interest and costs, in addition to State Farm’s $25,000.00 UM limit and their PIP limits of $5,000.00, as well as punitive damages and an amount for being arbitrary and capricious. Allstate’s understanding at the time of this offer was that it required acceptance by both Allstate and State Farm. Allstate could not settle with Ms. Knepper, even at their policy limits, unless State Farm was also willing to settle. State Farm testified that they were unwilling to settle at this point because they evaluated the value of the claim at $50,00.00 to $75,000.00. At this time Allstate offered to pay its policy limits plus judicial interest and costs independent of any settlement agreement with State Farm, but Ms. Knepper refused to accept unless and until State Farm also agreed to settle.

Allstate’s position, and its evaluations of the claim at various stages throughout the life of the claim, are supported by uncon-troverted expert testimony. Mr. Robin’s attempts to call Allstate’s analysis procedure into question during trial were unconvincing, and nothing was brought to light that would indicate that Allstate was arbitrary or capricious in failing to accept Ms. Knepper’s various settlement offers.

We cannot say that choosing to litigate this claim under the specific circumstances of this case was a breach of Allstate’s duty or obligations to its insured, nor was it an act of bad faith. There was a clear turning point in this matter during the trial, immediately following the testimony of Dr. Shepherd and Mr. Robin. As lifisoon as Allstate was aware of this, it made attempts to settle near and at the policy limit. Those offers were refused by Mr. Kay. After our thorough review of the record, Allstate’s actions were reasonable at the time, and we see no evidence of arbitrary or capricious behavior on the part of Allstate or its agents handling this matter.

Assignment of Error Number 5 — Adverse Presumption

Mr. Robin also argues that the trial court erred when it failed to give an adverse presumption to Allstate’s decision not to call Ms. Christine Sullivan, an Allstate employee that Allstate had listed as a rebuttal witness to Mr. Robin’s expert, Gary Fry. Allstate argues that the testimony from other Allstate employees was sufficient to prove their case, and Ms. Sulli-vans’ testimony was no longer necessary to rebut Mr. Robins’ expert. Allstate contends that this was a judgment call by counsel made in light of developments at trial, and is not susceptible to an adverse presumption. Paul v. Ford Motor Co., 392 So.2d 704 (La.App. 3 Cir.1980).

We find no error in the trial court’s refusal to apply an adverse presumption in this instance.

Assignment of Error Number 6—Exclu-sion of Allstate’s Implementation Training Manual

Mr. Robin proffered this manual during trial following the court’s refusal to admit it into evidence. He argues that the trial court's refusal to admit this manual was error, and asks us to reverse the trial court’s ruling. After our review of the trial record and transcript, the trial court’s exclusion of the manual that Mr. Robin sought to introduce was based on problems with its authentication, which Mr. Robin failed to rectify. We find no error in the trial court’s actions on this issue, and find this 117assignment of error is without merit.

Assignments of Error Numbers 7 and 8— Evidence and Discovery

On review of the trial record, we find no evidence of any discovery abuse on the part of Allstate, and no evidence that Allstate failed to comply with any court orders concerning document production. Therefore, these assignments of error are also without merit.

Assignment of Error Number 9—Admis-sion of Inadmissable Evidence

Mr. Robin also claims that the trial court erred in “admitting certain in-admissable evidence, including but not limited to certain issues raised in plaintiffs motion in limine.” Mr. Robin specifically refers to reports of Mr. Preston Cloyd, who represented State Farm in the Knep-per matter. Mr. Robin claims that the testimony of Mr. Cloyd regarding his evaluations and/or reports issued in connection with the Knepper case are irrelevant in light of this court’s decision in Knepper, 745 So.2d 1248. We disagree. Our decision in Knepper did not address the reasonableness of Allstate’s refusal to settle Knepper’s claim at the time her various offers were made. Mr. Cloyd’s testimony specifically addresses the reasonableness of Allstate’s claim evaluations at the time Ms. Knepper’s various offers were on the table. Therefore, we find no error in the trial court’s decision to allow this testimony.

Mr. Robin also refers to Ms. Knepper’s discovery deposition and written answers to certain questions by Allstate. He claims that Ms. Knepper’s deposition and the written answers were aimed at learning whether she had undergone any treatment and/or surgery since the trial. He argues that this information is irrelevant to the issue of whether Allstate’s actions in refusing various settlement offers were reasonable at the time they were made.

|1RWe agree that this evidence would be irrelevant to the matter presently before this court, however, as discussed above there is sufficient evidence to support the trial court’s judgment. Therefore, any error in admission of this evidence was harmless.

Assignment of Error Number 10—Failure to Award Damages

As we find no bad faith or breach of contractual duty on the part of Allstate, this assignment of error is also without merit.

Costs Awarded to Allstate

The trial court dismissed all of Mr. Robin’s claims at his cost. Following this judgment by the trial court, Allstate filed a Rule to Tax Costs, and the trial court awarded additional costs, including certain deposition costs, and expert fees incurred by Allstate. We have affirmed the trial court’s judgment that Allstate was “not arbitrary and capricious in failing to settle at policy limits,” we find no abuse of the trial court’s great discretion in awarding these costs against Mr. Robin.

CONCLUSION

We affirm the trial court’s grant of Allstate’s Exception of No Cause of Action and dismissal of the Robins’ tort claims. We affirm the judgment of the trial court below and its decision to award reasonable costs to Allstate. We find no breach of Allstate’s duty to Mr. Robin, and we deem Allstate’s decisions and actions with respect to the settlement of this matter neither arbitrary nor capricious. All costs of this appeal are cast to Mr. Robin.

MOTION TO STRIKE GRANTED IN PART; AFFIRMED.


source: Caselaw Access Project

author: | THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Dr. Ulku RAMELOW v. The BOARD OF TRUSTEES of the UNIVERSITY OF LOUISIANA SYSTEM, d/b/a McNeese State University.
    Nos. 03-1131, 03-1484.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.

      John Michael Veron, Robert E. Landry, Scofield, Gerard, Veron, Singletary & Po-horelsky, Elizabeth Brooks Hollins, Lake Charles, LA, for Defendant/Appellant, State of Louisiana, Board of Trustees, McNeese State University.
    Charles Schrumpf, Schrumpf & Schrumpf, Sulphur, LA, for Plaintiff/Ap-pellee, Dr. Ulku Ramelow.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., JOHN D. SAUNDERS, and ARTHUR J. PLANCHARD , Judges.

       Honorable Arthur J. Planchará, retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   | THIBODEAUX, Chief Judge.

The Board of Trustees of the University of Louisiana System, d/b/a McNeese State University (hereinafter “McNeese”) appeals a judgment of $49,156.00 rendered pursuant to a jury verdict against it in a proceeding brought under the Equal Pay Act of 1963, 29 U.S.C. § 206 (hereinafter “EPA”) by Dr. Ulku Ramelow, a tenured professor in McNeese’s chemistry department. For the following reasons, we reverse the judgment of the trial court. Because Dr. Ramelow failed to demonstrate the factors necessary to prove a prima facie case under the EPA, the jury was manifestly erroneous.

I.

ISSUES

McNeese entreats us to consider:

(1) whether the jury committed manifest error in finding that Dr. Rame-low met her burden of proving that McNeese violated the EPA;
(2) whether the jury erred because Dr. Ramelow failed to demonstrate a valid male comparator as required by the EPA and, therefore, failed in proving that her unequal pay was gender-based;
(3) whether the amount awarded by the jury is supported by the record if the jury’s verdict is not manifestly erroneous; and,
(4) whether proof of Dr. Ramelow’s claims should be limited to consideration of solely annual performance ratings because of a purported judicial confession made during the opening statement of Dr. Ramelow’s attorney.

_b.II.

FACTS

Dr. Ramelow first arrived at McNeese in 1982 when her husband, Dr. Gerald Ramelow (Dr. G. Ramelow), was hired as an assistant professor of chemistry. She began working for the university as an adjunct professor. Her pay was based on the number of classes she taught. Her usual load was one or two classes in addition to a lab course. According to Dr. Ramelow, she earned $200.00 per month. In 1987, Dr. Ramelow was hired as an instructor, a non-tenured track position, with a one year renewable contract. As an instructor, her salary was not based on the number of courses she taught. Finally, in 1991 she was hired as an assistant professor on a tenure track. It was at that point that Dr. Ramelow became eligible for merit pay increases. By 1994, she was promoted to associate professor and became tenured. Two years later, Dr. Ramelow’s request for a full professorship was denied. According to Dr. Ramelow, she was told that her request for promotion to full professorship was too early. Her request was again denied in 1999. Dr. Ramelow testified that she was denied because she did not participate in summer classes and meetings and she lacked congeniality with other faculty members. She explained that she was unable to participate in summer classes because of surgery she underwent at the end of the spring semester.

In 2002, after the retirement of Dr. Russell Ham, the department head, Dr. Rame-low was promoted to full professor. At the time of trial, her salary was $44,683.00. Dr. Ramelow testified that among the full professors in the college of science, both male and female, her salary was the lowest. With the exception of one associate professor, her salary was also the lowest in that group. With respect to experience teaching college level course, Dr. Ramelow presented evidence that she [3has 37.25 years of experience, more than anyone else in the department of chemistry. These years include the time she taught in her home country, Turkey. She also testified that the average salary for associate professors at McNeese for the school year 2002-2003 was $48,039.00 and that full professors at McNeese for that year averaged $60,000.00. Dr. Ramelow testified that, with respect to other professors in the chemistry department, their jobs are identical.

Witnesses for McNeese explained that the differences in salary were due to the tenure track starting date differences, market value for a particular professor’s specialty and merit pay raises which are percentages of salary given to professors based on an annual performance report (APR). McNeese insisted that Dr. Rame-low’s low salary was not based on her gender, but based instead on her APR ranking. The jury found that McNeese failed to pay Dr. Ramelow “in accordance with the Equal Pay Act.”

III.

LAW AND DISCUSSION Judicial Confession

In his opening statement at the trial of this matter, counsel for Dr. Rame-low stated that her rights under the EPA were violated due to the manipulation of her APRs during her years of employment with McNeese. In brief to this court in connection with the present appeal, Dr. Ramelow argued that not only were her APRs manipulated but also certain “salary adjustments,” not tied to merit, were used to keep her salary below that of her male counterparts. It is Dr. Ramelow’s reference to “salary adjustments” to which McNeese objects.

Louisiana Civil Code Article 1853 states: “A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full | ¿proof against the party who made it.” It may only be revoked on the ground of error of fact. Id. Furthermore, the statement made must be an express acknowledgment of an adverse fact Jones v. Gillen, 564 So.2d 1274 (La.App. 5 Cir.), writ denied, 568 So.2d 1081 (La.1990). McNeese asserts that C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.12/3/03), 861 So.2d 156, supports its position that the remark made by Dr. Ramelow’s counsel during his opening statement regarding manipulation of her APRs is a judicial confession that the APR is the only basis of her claim that McNeese violated the EPA. The effect of a judicial confession by a party or his attorney is to waive the presentation of any evidence as to the subject of the admission. La.Civ.Code art. 1853, cmt. (b); Crawford, v. Deshotels, 359 So.2d 118 (La.1978). In C.T. Traina, Inc., counsel for Sunshine confessed, in an exception of no cause of action, to the existence of an oral contract. The supreme court concluded that an amended answer, denying the oral contract, did not serve to revoke the prior judicial confession. However, in reaching the conclusion that the answer did not revoke the judicial confession, the court noted that the amended answer failed to assert that the original admission was done in error and it also pleaded, in the alternative, that an oral contract existed. Thus, in C.T. Traína, Inc., the issue of whether an oral contract existed was withdrawn, and the introduction of evidence with respect to the oral contract’s existence was not allowed. Moreover, the main issue in C.T. Traína, Inc. was wether a contract existed between the parties; thus, when Sunshine Plaza admitted the existence of the oral contract it stated a fact adverse to its position.

It is noteworthy in the present case that Dr. Ramelow’s counsel made the alleged judicial confession in his opening statement.

| «¡Although the majority of the jurisprudence regarding the purpose of opening statements are discussed in the context of a criminal procedure, that jurisprudence is helpful in understanding the general purpose of opening statements within a civil trial. The purpose of an opening statement is to acquaint the jury with the case in order to prevent confusion, and to protect a litigant from being taken by surprise or prejudiced in the preparation of his defense. State v. Allen, 95-1754 (La.9/5/96), 682 So.2d 713. In Krepps v. Hindelang, 97-980, p. 9 (La.App. 5 Cir. 4/15/98), 713 So.2d 519, 524, the court noted that for a statement to be considered a judicial confession there is an added jurisprudential requirement that “a party must have relied on the declaration to his detriment.” We do not find that the remarks made by Dr. Ramelow’s counsel during his opening statement constitute a judicial admission that Dr. Ramelow is contesting only the APRs with respect to her EPA claim. In her pleadings and through the witnesses at trial, there were other wage matters discussed as the bases for her EPA violation lawsuit, including salary adjustments that were made by McNeese. Further, there is no evidence that McNeese detrimentally relied on the assertions made by Dr. Ramelow’s counsel in his opening statement. Thus, we do not find McNeese’s argument, that a declaration by Dr. Ramelow’s counsel during his opening statement regarding the basis of her claim is a judicial confession thus limiting evidence and argument to that declared basis, convincing.

Equal Pay Act

The Equal Pay Act of 1963, 29 U.S.C. § 206 reads in pertinent part:

(d) Prohibition of sex discrimination.
(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, | (¡between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

The Supreme Court has stated that the EPA is remedial and should be broadly interpreted to fulfill the underlying purposes for which it was enacted, that employees doing equal work should be paid equally regardless of the sex of the employee. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974).

To recover under the EPA, a plaintiff must prove that an employer is paying different wages to employees based on an employee’s sex and that the work they do is equal. Id. By equal, the Act does not mean that the work must be identical, but only that the work be “substantially equal.” Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir.1979), affirmed on other grounds, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). The question of whether the work done by the male and female employees is substantially equal is one of fact and reviewed by this court under the manifest error-clearly wrong standard. Id. The burden is first on the employee, Dr. Ramelow, to establish a prima facie case under the EPA. To do so, she must show that: (1) McNeese is subject to the EPA; (2) she performed work in a position requiring equal skill, effort and responsibility under similar working conditions; and, (3) she was paid less than a man. Jones v. Flagship Int’l, 793 F.2d 714 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d

1001 (1987). There is no question that McNeese is subject to the EPA and that Dr. Ramelow was paid less than 17a man in her department. However, with respect to factor number two, the statute focuses not on whether the female and male employee possess equal skills to do the job, but whether the actual jobs done by the female and male employee for the employer require equal skills. Cox v. Home Ins. Co., 637 F.Supp. 300 (N.D.Tex.1985). Further, minor differences in jobs may be disregarded, but major differences in the jobs may not be disregarded. Corning Glass Works, 417 U.S. 188, 94 S.Ct. 2223. It is only when Dr. Ramelow makes out a pri-ma facie case that the burden of production then shifts to the employer, McNeese, to show that the difference in salary is justified based on one of the Act’s four exceptions. 29 U.S.C. § 206(d)(1). Whether Dr. Ramelow establishes a prima facie case by showing that her position and that of other males at her place of employment are “substantially equivalent” for EPA purposes, thereby shifting the burden to McNeese, is also a question of fact, subject to the manifest error-clearly wrong standard of review. Corning Glass Works, 417 U.S. 188, 94 S.Ct. 2223. See also, Tomka v. Seiler Corp., 66 F.3d 1295, 1311 (2d Cir.1995)(“It is for the trier of fact to decide if [there] is a significant enough difference in responsibility to make the jobs unequal.”). In a case involving the establishment of a prima facie case in a professional setting, the court in Hein v. Oregon College of Education, 718 F.2d 910, 916 (9th Cir.1983) instructed:

[T]he proper test ... in a professional setting such as that of a college is whether the plaintiff is receiving lower wages than the average of wages paid to all employees of the opposite sex performing substantially equal work and similarly situated with respect to any other factors, such as seniority, that affect the wage scale.

(Emphasis added).

Dr. Ramelow testified about female full professors in the College of Science at McNeese who earn a higher salary than she earns. However, among the department of chemistry professors, it appears that Dr. Ramelow chose a single male | ^comparator with respect to her job and salary — Dr. Mark Delaney (Dr. Delaney). Dr. Ramelow’s husband, Gerald, is also a department of chemistry professor. However, Dr. Gerald Ramelow, was hired by McNeese in 1982 as an assistant professor of chemistry. Thus he is not similarly situated with Dr. Ramelow with respect to seniority and cannot satisfy factor number two with respect to Dr. Ramelow establishing a prima facie case.

It is apparent the jury concluded that the job Dr. Delaney performed for McNeese required skills equal to that of the job performed by Dr. Ramelow and that he was likewise similarly situated in all factors affecting the wage scale. Although Dr. Ramelow worked at McNeese as an adjunct professor and instructor for many years beginning in 1982, she was not hired as an assistant professor of chemistry on a tenure track until 1991. In 1994, she was promoted to associate professor and became tenured. In 2002, she became a full professor. On the other hand, Dr. Delaney was hired into a tenure track position, making him eligible for merit raises, four years prior to Dr. Ramelow. Also, Dr. Delaney became the assistant head of the department of chemistry. He maintained his assistant department head position for three to four years, thus increasing his base salary due to the additional administrative work requirements. At one point during his career, Dr. Delaney became the interim department head. In the assistant and interim department head positions, Dr. Delaney was responsible for the supervision of all of the adjunct professors, instructors and professors in the department of chemistry within the College of Science, in addition to his teaching and scholarly research work. As supervisor over the department’s personnel, Dr. Delaney was required to get along well with his colleagues. Dr. Ham testified that Dr. Ramelow lacked congeniality with her fellow professors and had an explosive temper. A reading of Dr. Ramelow’s testimony in the trial transcript of this [9case supports Dr. Ham’s description of Dr. Ra-melow’s personality. The court, and her own attorney, had to repeatedly remind Dr. Ramelow of the trial judge’s authority in conducting the trial and to follow the rules of the court set out by the trial judge.

We find that Dr. Ramelow failed to prove that the job she performed for the university was substantially equal to the job performed by Dr. Delaney, her male comparator in her EPA claim. Her job did not require the same skills as the job Dr. Delaney performed for the university and he was not similarly situated with respect to seniority, factors she had to show to make out a prima facie case under the EPA. Consequently, we find that the jury was manifestly erroneous in determining that Dr. Ramelow sufficiently made out a prima facie case. As a result of our finding that Dr. Ramelow failed to make out a prima facie case of a violation of the EPA, the burden of production to show that one of the exceptions to a wage differential existed never shifted to McNeese. Therefore, our decision pretermits discussion of the remaining issues.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court in favor of plaintiff, Dr. Ulku Ramelow, is reversed. Costs of this appeal are assessed to the plaintiff, Dr. Ulku Ramelow.

REVERSED AND RENDERED.

| THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Ramelow v. State of Louisiana, Bd. of Trustees, MSU, 03-1131 (La.App. 3 Cir. 3/31/04), 870 So.2d 415, the judgment of the trial court awarding liquidated damages and attorney fees is reversed. Costs of this appeal are assessed to plaintiff, Dr. Ulku Ramelow.

REVERSED AND RENDERED.


author: hEZELL, Judge.

text:
    Billy BROWN v. ENTERGY CORPORATION.
    No. CA 03-1452.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.
    Joseph R. Ballard, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee.
    Entergy Corporation, John Green, Attorney at Law, Lake Charles, LA, for Plaintiff Appellant Billy Brown.
    Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL, and ARTHUR J. PLANCHARD, Judges.

       Honorable Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   hEZELL, Judge.

In this appeal, Billy Brown claims that the trial court erred in granting a summary judgment dismissing his claims in favor of the Defendant, Entergy Corporation. For the following reasons, we reversed the decision of the trial court and remand for further proceedings in accordance with this ruling.

In October of 2000, Brown contacted Entergy to have them remove a wooden electric pole from his premises. Employees of Entergy responded to the request by cutting the pole down, cutting the pole in half, then removing the portion of the pole that remained in the ground. They removed the portion of the pole that had been underground, but left the other two pieces, telling Brown that they did not have the proper equipment to remove the pieces and would come back for them at a later time. Brown made several attempts to contact Entergy to have them remove the pole sections. However, these calls did not receive a response.

In November of 2001, over one year after Entergy had cut down the poles, Brown went to mow his lawn. Because one of the poles was left at an angle to the fence that enclosed his yard, he was unable to reach a portion of his lawn to mow. Brown attempted to move one of the sections by hand and, in the process, injured his back. He went to the emergency room at Lake Charles Memorial Hospital on November 19, 2001. He later went to see his personal physician, Dr. Michael Seep, who determined that Brown had sustained a bulging disk at L4-L5 and neural canal stenosis. Dr. Seep diagnosed the injury as an aggravation of a previous back injury.

Brown filed suit against Entergy, claiming that he sustained the injury due to Entergy’s failure to remove the pole sections from his yard. Entergy moved for a summary judgment, which the trial court granted. From this decision, Brown appeals.

1 2As his lone assignment of error, Brown claims that the trial court erred in dismissing his suit through summary judgment. We agree.

On a motion for summary judgment, a trial court must initially determine whether the moving party’s documents resolve all material factual issues. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. In considering whether a genuine issue exists, “courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Walker v. Kroop, 96-0618, p. 2 (La.App. 4 Cir. 7/24/96), 678 So.2d 580, 582. When considering summary judgments on appeal, the court must review the matter de novo. Smith, 639 So.2d 730. Thus, an appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law? Id.

Brown alleged a negligence cause of action against Entergy. In order to sustain such a cause of aétion, a plaintiff must prove the following by a preponderance of the evidence: “(1) the existence of a duty; (2) the breach of that duty; (3) the defendant’s conduct was a cause-in-fact of the plaintiffs injuries; (4) the conduct was a legal cause of the injuries; and (5) actual damages which resulted from the conduct.” Harkins v. Gauthe, 97-912, pp. 6-7 (La.App. 3 Cir. 2/4/98), 707 So.2d 1308, 1311, writ denied, 98-0584 (La.4/24/98), 717 So.2d 1170,(citing Roberts v. Benoit, 605 So.2d 1032 (La.l991)(on rehearing)). Entergy conceded, for the purposes of this summary judgment, that all of these elements were met except for the legal cause element.

[3In Todd v. State, Through Social Services, 96-3090, pp. 6-7 (La.9/9/97), 699 So.2d 35, 39, the Louisiana Supreme Court stated that “whereas the question of cause-in-fact involves a factual determination, the determination of legal cause involves a purely legal question.” Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 294 (La.1993) (citations omitted), summarizes the test for legal cause:

The scope of protection inquiry asks whether the enunciated rule extends to or is intended to protect this plaintiff from this type of harm arising in this manner. In determining the limitation to be placed on liability for defendant’s substandard conduct, the proper inquiry is often how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced.

Entergy concedes that it had a duty to remove these pole sections. However, it failed to do so for over a year. It is easily foreseeable that Brown would try to move the pole sections after such an extended length of time. ■ However, Brown did have knowledge of his own back problems, which could make his actions in trying to manually move the pole alone unreasonable. Accordingly, we find that genuine issues of material fact remain as to the comparative fault of Brown and Entergy. While ultimately the trial court may conclude that Brown’s actions outweigh the inaction by Entergy in causing his injury, we do not find that Entergy’s submission, at this time, sufficiently clarifies the factual background to foreclose further proceedings. Therefore, at this time, a summary judgment is inappropriate.

The decision of the trial court granting Entergy a summary judgment is reversed. This case is remanded to the trial court for further proceedings. Costs of this appeal are assessed against Entergy.

REVERSED AND REMANDED.

      . Prior to this incident, Brown has injured his back in a work related accident which resulted in a spinal fusion and chronic pain.

      . Entergy operates on Brown’s land via a servitude. Under La.Civ.Code art. 745 (emphasis added), Entergy "may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible." Thus, it is clear that Entergy had a duty to remove the two pieces of the pole within a reasonable time.


author: I,GREMILLION, Judge.

text:
    David W. HALL v. Harold REBER, Progressive Insurance Company, et al.
    No. 03-1482.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.

      Benjamin O. Burns, Lafayette, LA, for Plaintiff/Appellant David W. Hall.
    V. Ed McGuire, Lake Charles, LA, for Defendants/Appellees Harold Reber Progressive Insurance Co., et al.
    Jeffrey A. Rhodes, Swift & Rhodes, Lafayette, LA, for Defendant/Appellee United States Automobile Association.
    Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL, and ARTHUR J. PLANCHARD Judges.

       Honorable Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   I,GREMILLION, Judge.

The plaintiff, David W. Hall, appeals the judgment of the trial court granting a peremptory exception of prescription in favor of the defendants, Harold Reber and Progressive Insurance Company, and dismissing Hall’s claims against them with prejudice. For the following reasons, we reverse and remand the matter for further proceedings.

FACTS

This matter stems from an automobile accident on September 15, 2001, wherein Hall’s vehicle was struck by Reber’s vehicle. Reber’s vehicle was insured by Progressive. On September 16, 2002, counsel for Hall fax-filed his Petition for Damages with the Calcasieu Parish Clerk of Court, naming as defendants Reber, a resident of Calcasieu Parish, Progressive, and the United States Automobile Association, Hall’s own uninsured/underinsured policy holder. On September 19, 2002, the Clerk’s Office received the original signed petition and a check for $175 to cover the filing fees. On September 24, 2002, the Clerk’s Office forwarded counsel a statement informing him that a further $125 was required to complete the processing of the suit. This amount was not received by the Clerk’s Office until December 11, 2002. At that time, the Clerk’s Office processed Hall’s suit and served the defendants.

On January 21, 2003, Reber and Progressive filed a peremptory exception of prescription arguing that Hall’s claims against them had prescribed since his suit was not filed until September 19, 2002. They base their argument on the fact that Hall failed to submit the full filing fee for the suit until after the five-day period | ¡.provided for in La.R.S. 13:850, pertaining to fax filings. Following a hearing, the trial court rendered a judgment in favor of Reber and Progressive granting their peremptory exception of prescription and dismissing Hall’s claims with prejudice. Judgment was rendered in this matter on June 27, 2003. This appeal by Hall followed.

ISSUE

On appeal, Hall argues that the trial court erred in sustaining the exception of prescription.

FAX FILING

The filing of a petition by facsimile transmission is provided for by La.R.S. 13:850, which provides in pertinent part:

A.Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for matters related to filings by facsimile transmission.

|,Jn reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Morrison v. C.A. Guidry Produce, 03-307 (La.App. 3 Cir. 10/1/03), 856 So.2d 1222. Further, “the standard controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes ‘against prescription and in favor of the claim that is said to be extinguished.’ ” Security Ctr. Prot. Servs., Inc. v. All-Pro Security, Inc., 94-1317, 94-1318, p. 12 (La.App. 4 Cir. 2/23/95), 650 So.2d 1206, 1214 (quoting Louisiana Health Serv. v. Tarver, 635 So.2d 1090, 1098 (La.1994)).

The fax transmission of Hall’s petition was received by the Clerk’s Office at 5:16 p.m. on September 16, 2002. Although the accident occurred on September 15, 2001, September 15th fell on a Sunday in 2002; thus, the September 16th filing was timely. On September 19, 2002, the Clerk’s Office received the original signed petition and a check for $175 from Hall’s counsel. On September 24, 2002, the Clerk’s Office sent him notice that a further $125 was required to complete the processing of the suit. The statement included the following:

Base Deposit of Suit (one service included) $200.00

Additional Service (_@ $50.00 each) $ 100.00

Total amount required for filing of suit $ 300.00

Total amount already paid by your office $ 175.00

TOTAL AMOUNT STILL OWED BY YOUR OFFICE $125.00

By: Cynthia Allen Deputy Clerk of Court

|4PS. PLEASE RETURN THIS PAYMENT, IN ORDER THAT SUIT. STATEMENT WITH YOUR WE MAY PROCESS YOUR

The Clerk’s Office received the additional $125 on December 11, 2002, at which time Hall’s suit was processed. Based on these facts, the trial court held that Hall’s suit had prescribed. Although it would appear that Hall’s claim has prescribed on its face, we find otherwise.

The $200 fee required by the Clerk’s Office included a $50 fee for service of the petition upon one defendant. If service was required against more than one defendant, as here, the Clerk’s Office required a $50 fee for each additional defendant named in the suit. Accordingly, the filing fee for the suit was $150 plus the $50 service fee. In this instance, Hall’s counsel submitted $175 on September 19, 2003. This amount covered the $150 filing fee, plus the $5 transmission fee provided by La.R.S. 13:850(B)(3), leaving a balance of $20. Hall’s counsel should have been required to submit an additional $130 in order to effectuate service on the three named defendants.

Moreover, La.Code Civ.P. art. 1201(C) provides with regard to service of citation:

Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver.

Thus, it is not necessary that service of the citation take place immediately upon | ^filing; we have seen numerous instances where a party filing a petition has requested a hold on service pending the submission of service instructions. In this instance, the petition was processed for service on December 11, 2002, upon the submission of the additional $125 by Hall’s counsel pursuant to the Clerk’s Office request. This fell within ninety days of the commencement of the action on September 16, 2002. Even if service on the defendants was not effectuated within ninety days, barring bad faith on the part of Hall, prescription against Reber and Progressive would still have been interrupted. See Bordelon v. Med. Ctr. of Baton Rouge, 03-0202 (La.1/28/04), 871 So.2d 1075, 2004 WL 164176.

Strictly construing La.R.S. 13:850 against prescription and in favor of Hall’s claim, we find that his counsel complied with the requirements of the statute by forwarding the signed petition and the cheek for $175 to the Clerk’s Office on September 19, 2002. Although service was not effectuated at that time, suit was filed and prescription against Reber and Progressive was interrupted. Accordingly, the judgment of the trial court is reversed and the matter is remanded for further proceedings.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings. The costs of this appeal are assessed to the defendants-appellants, Harold Reber and Progressive Insurance Company.

REVERSED AND REMANDED.

      . We further take judicial notice of the fact that the Louisiana Legal Directory for 2002 reveals that the advance deposit required by the Calcasieu Parish Clerk of Court for the filing of a lawsuit was $150.