author: | ¡.WALTER J. ROTHSCHILD, Judge.

text:
    Charles RANDALL v. Charley L. MARTIN, River Parish Disposal, Inc. and Clarendon National Insurance Company.
    No. 03-CA-1311.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Vallie Schwartz, Morris Bart, P.L.C., New Orleans, LA, for Charles Randall, Plaintiff/Appellant.
    John M. Dubreuil, Eleanor N. Mack, Kingsmill Riess, LLC, New Orleans, LA, for Charley L. Martin, et al., Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | ¡.WALTER J. ROTHSCHILD, Judge.

Plaintiff, Charles Randall, appeals from a judgment of the trial court granting defendants’ exception of res judicata. Finding no legal or manifest error in this ruling, we affirm.

Facts and Procedural History

Plaintiff, a resident of Virginia, was involved in a multi-vehicle collision on March 12, 2002 while he was in New Orleans. On February 4, 2003, plaintiff filed the instant suit against Charley L. Martin, the driver of one of the other vehicles involved in the accident, River Parish Disposal, Inc. the owner of this vehicle, and Clarendon National Insurance Company, their insurer. In this petition, plaintiff sought damages for personal injuries, mental anguish, pain and suffering, as well as past and future loss of earnings. Plaintiff subsequently filed an amended petition to name as defendant the driver of the second vehicle involved in the accident, James J. Parta and his insurer Liberty Mutual Insurance Company.

Defendants, Martin, River Parish and Clarendon answered this petition generally denying the allegations and also asserting various |3affirmative defenses to plaintiffs allegations, including accord and satisfaction and settlement releasing all claims.

Subsequently, defendants Parta and Liberty Mutual filed an answer to plaintiffs original and amending petition denying plaintiffs allegations. Plaintiff then filed a motion to bifurcate the issues of accord, satisfaction and settlement from the issues of liability and damages. However, this motion was not ruled on by the trial court.

On May 27, 2003, defendants Martin, River Parish and Clarendon brought an exception of res judicata, seeking dismissal of plaintiffs claims against them on the basis that all claims between them had been compromised and settled. Plaintiff filed an opposition to this exception, and the matter was heard by the trial court on June 30, 2003. By judgment rendered on July 14, 2003, the trial court granted defendant’s exception of res judicata and dismissed with prejudice all of plaintiffs claims against Charley L. Martin, River Parish Disposal, Inc. and Clarendon National Insurance Company.

Plaintiff now appeals from this judgment, arguing that the trial court erred in finding that the release signed by plaintiff constituted a valid compromise of all claims against defendants and in failing to allow additional time for discovery of the facts and circumstances surrounding the release. In the trial court and his appellate brief, plaintiff does not contend that the theory of res judicata does not apply to the release in this case; rather, he argues that the release does not represent a meeting of minds between the parties on the issue of claims for bodily injury arising out of the automobile accident.

\ ¿Applicable Law

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. La. C.C. art. 3071. Dumas v. Angus Chemical Co., 31,969 (La.App. 2 Cir. 8/20/99), 742 So.2d 655. A release executed in exchange for consideration is a compromise. Brown v. Drillers Inc., 93-1019 (La.1/14/94), 630 So.2d 741. A compromise regulates only the differences which appear clearly to be comprehended therein by the intention of the parties, “whether it be explained in a general or particular manner,” and does not extend to differences which the parties never intended to include. La. C.C. art. 3073; Ortego v. State, 96-1322 (La.2/25/97), 689 So.2d 1358. Further, a general release will not necessarily bar recovery for those aspects of the claim not intended to be covered by the release. Dimitri v. Dimitri, 00-2641 (La.App. 4 Cir. 6/30/02), 809 So.2d 481, 485, citing Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961).

A compromise therefore carries the authority of things adjudged, and cannot be attacked for error of law or lesion. La. C.C. art. 3078. A compromise may be rescinded whenever there exists an error in the person or on the matter in dispute. It may likewise be rescinded where there exists fraud or violence. La. C.C. art. 3079. Public policy favors compromise agreements and the finality of settlements. Brown v. Drillers Inc., supra at 757; Rivett v. State Farm Fire & Cas. Co., 508 So.2d 1356 (La.1987). The party seeking recision of a settlement agreement bears the burden of proving its invalidity. Hoover v. Boucvalt, 747 So.2d 1227 (La.App. 4 Cir.1999), writ denied, 754 So.2d 969 (La.2000).

| sThe parties’ intent in executing a compromise is normally discerned from the four corners of the document; extrinsic evidence is normally inadmissible to explain, expand or contradict the terms of the instrument. Brown v. Drillers Inc., supra. Nevertheless, when the parties to a compromise dispute its scope, they are permitted to raise factual issues regarding whether the unequivocal language of the instrument was intended to be truly unequivocal. Id. However, such latitude is granted only in the presence of some “substantiating evidence” of mistaken intent. Dimitri v. Dimitri, supra, 809 So.2d at 485; Duet v. Lucky, 621 So.2d 168 (La.App. 4 Cir.1993). In Brown v. Drillers Inc., supra, the Supreme Court held that “substantiating evidence” must establish:

either (1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim.
630 So.2d at 749.

In the absence of such evidence, the compromise is subject to the normal rules of contract analysis and enforced precisely as written. Duet v. Lucky, supra; Brown v. Drillers Inc., supra.

Discussion

In the present case, defendants submitted a copy of a document entitled “Release of All Claims” which was signed by plaintiff on March 29, 2002. The document provides in pertinent part:

That the Undersigned, being of lawful age, for sole consideration of ONE THOUSAND SEVENTY-ONE AND 50/100 Dollars ($1,071.50) to be paid to CHARLEY RANDALL, the undersigned, in hand paid, receipt whereof is hereby acknowledged, do/does hereby and for my/our/its heirs, executors, administrators, successors and assigns release acquit and forever discharge CHARLEY MARTIN, RIVER PARISH DISPOSAL, INC., AND CLARENDON NATIONAL hINSURANCE CO. ... from any and all claims, actions, causes of action, demands, rights, damages costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the 12TH day of MARCH, 2002, at or near KENNER, LA.
The document also provides as follows:
The undersigned hereby declare(s) and represent(s) that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed, that the undersigned relyfies) wholly upon the undersigned’s judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefore and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed.

In support of its position that the terms of this release are invalid, plaintiff relies on the cases of Dimitri v. Dimitri, supra, and Moak v. American Auto. Ins. Co., supra, in which the court invalidated similar compromise agreements. However, we find both of these cases to be factually distinguishable from the present case.

In Dimitri, the plaintiff who was allegedly injured in a slip and fall on defendant’s premises signed a similar release, but did not accept the check given as consideration for the release and returned it to the insurance company. Thus, the court concluded there was no meeting of the minds regarding the settlement terms. In the present case, defendants submitted evidence that plaintiff accepted and subsequently cashed check number 183798 in the amount of $821.50 which referenced “Full and Final Settlement of Property Damages.” The record also contains evidence that |7plaintiff also cashed check number 183799 in the amount of $250.00, which contained the reference “Full and Final Settlement of All Claims.” The total of these check is $1071.50, the amount of consideration stated in the release document.

In Moak, plaintiff was injured in a vehicular accident wherein she sustained the loss of a finger, and the court noted the disparity between the extent of the injury and the amount of the compensation received. The release in that case did not distinguish between personal injuries and property damage and the check was given for the exact amount of the property damage sustained. In the present case, the release specifically refers to “bodily and personal injuries” as well as property damage. Further, the record fails to contain competent evidence that the amount of compensation received was insufficient for plaintiffs injuries.

Plaintiff also contends that the release executed in this case constitutes an impermissible rush release as defined by the court in Wise v. Prescott, 244 La. 157, 151 So.2d 356, 362 (1963), wherein the court invalidated a release which was signed within 24 hours of a plaintiffs accident. However, in that case, the plaintiff was a 70 year old woman who had broken her glasses in the accident and was unable to read the release document. Further, the adjuster did not identify himself, and plaintiff was unaware that she executed a release of her claims.

In the present case, the release was executed over two weeks after the accident at issue. Plaintiff was aware that he was dealing with an insurance adjuster, as he went to the insurance office to obtain the check. During the two week period between the time of the accident and the date plaintiff received the check, plaintiff had an opportunity to consult an attorney regarding his legal rights and to seek medical care to learn of the extent of | «his injuries. We fail to find that the release executed in this case constitutes an impermissible “rush release.”

Finally, we find no merit in plaintiffs claim that the disparity in bargaining positions between himself and the insurance adjuster is grounds for invalidation of the release. The record shows that plaintiff is a literate man who was employed at the time of this accident. Although he contends that the insurance adjuster did not fully explain the rights he was relinquishing by signing the release, the specific terms of the release which was read and signed by plaintiff clearly indicate that plaintiff understood that he was releasing defendants from any and all claims he may have had as a result of the automobile accident.

As the party seeking to invalidate the compromise agreement, Mr. Randall has the burden of proof. We conclude that based on the circumstances of this particular case, he has failed to meet this burden. The self-serving affidavit of plaintiff is the only evidence that plaintiff did not intend to settle all of his claims against defendants. However, the settlement terms are clear and unequivocal. The document specifically provided that plaintiff voluntarily settled all claims for all “known and unknown, foreseen and unforeseen bodily and personal injuries.” Further, Mr. Randall received and negotiated the payments made in consideration for this release. Other than the information contained in his affidavit, there is no evidence in the record that Mr. Randall was not adequately compensated for his injuries. Under the circumstances presented herein, we fail to find that the trial court erred in refusing to consider extrinsic evidence to determine plaintiffs intentions in executing this release.

UFor these reasons, the judgment of the trial court maintaining the defendants’ exception of res judicata and dismissing plaintiffs claim is affirmed. Plaintiff is to bear all costs of this appeal.

AFFIRMED.


source: Caselaw Access Project

author: | JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    Marlon SIMMONS, et al. v. CTL DISTRIBUTION and Darren Tomas.
    No. 03-CA-1301.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      James M. Dill, David B. Gooch, The Dill Firm, A.P.L.C., Lafayette, LA, for Appellant.
    Walter C. Dumas, Patti Durio Hatch, Dumas and Associates, Baton Rouge, LA, Richard J. Arsenault, John Randall Wha-ley, Neblet, Beard & Arsenault, Alexandria, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, .THOMAS F. DALEY and MARION F. EDWARDS.
   | JAMES L. CANNELLA, Judge.

The Defendants, CTL Distribution, Inc. (CTL) and Darren Tomas (Tomas), appeal a judgment in a wrongful death and survival action in favor of the Plaintiffs, Marlon Simmons and his deceased mother, Dolores Simmons. We amend in part and affirm as amended.

On April 5, 2002, Tomas, a tractor trailer truck driver employed by CTL, was transporting molten sulfur on the River Road near Romeville, Louisiana. He lost control of the truck in an “S” curve and it overturned, spilling the sulfur. Eric Der-oache, an employee of the St. James Parish Council charged with the responsibility of emergency response, ordered a mandatory evacuation of the residents in the Romeville community as a precautionary measure in the event of wind shifts or catastrophic failure of the tank containing the sulfur. Molten sulfur is a health hazard which can cause respiratory irritation. The evacuation was ordered at 7:20 a.m.

Dolores Simmons was a 62 year old retired teacher’s aide and a life-long resident of Pleasant Hill Street, one of the streets subject to the evacuation. She lived there with two sisters, her nephew, Marlon Simmons, and his son, her Isgrandson. As usual, Dolores Simmons was awake at 5:00 a.m. At 6:45 a.m. she woke her son and fixed breakfast. After breakfast, Marlon Simmons went outside to cut the grass. He noticed that there was no activity on the street, which was unusual. He told his mother and she telephoned another family member to find out what was going on in the neighborhood. When Marlon went back outside, he saw police officers, one of whom told them to evacuate the area and to go to Romeville School. His mother became extremely anxious and began shaking. Marlon made two trips to the school transporting the family. He first took his son, cousin and

disabled aunt. On his second trip, he transported his mother and another aunt. When they arrived at the school, Dolores Simmons was having breathing problems and was trembling. The paramedics on the scene arranged for her to be transported to St. Elizabeth’s hospital, where she was admitted with atrial fibrillation with a rapid ventricular rate, leading to severe pulmonary edema, and respiratory failure secondary to pulmonary edema. She was intubated at that time. She remained there for six days, but her condition deteriorated and she was transferred to Our Lady of the Lake Hospital in Baton Rouge, Louisiana on April 11, 2002. Dolores Simmons remained intubated and in respiratory failure. She died on May 2, 2002, approximately one month after the sulfur spill.

Marlon Simmons filed suit for his mother’s wrongful death and for her survival damages on June 17, 2002. On March 12, 2003, a judge trial took place. On May 14, 2003, the trial judge found the Defendants liable and awarded survival damages on behalf of the deceased in the amount of $950,000, special damages for medical and funeral expenses of $134,575.05, and wrongful death damages in the amount of $300,000..

On appeal, the Defendants contend that the trial judge erred in finding that the stress of the evacuation was the legal cause of Dolores Simmons’ death because she was not exposed to any sulphur from the spill and she had a long Rhistory of pulmonary and cardiac disease. The Defendants also contend that the survival and wrongful death damages are excessive.

The evidence at trial showed that it was unlikely that Dolores Simmons condition was caused by inhalation of sulfur fumes, because the sulfur cloud released by the accident was blown away from her residential area across the Mississippi River. The evidence also shows that she had longstanding pulmonary and cardiac medical conditions and that she had been hospitalized and successfully treated on other occasions for congestive heart failure and pulmonary edema. The issue then, is whether the stress of the evacuation triggered an acute flare-up of those conditions, which ultimately led to her death. The trial judge found that it did, stating that “the direct cause of Dolores Simmons death was severe acute pulmonary edema and respiratory failure secondary to pulmonary edema which was prompted by her severe stress from the mandatory evacuation.”

Dr. Anu Vellanki, a board certified internist, was Dolores Simmons’ treating physician and was called when she was brought to the emergency room at St. Elizabeth Hospital. According to Dr. Vellanki, she was hospitalized three weeks before the incident for cellulitis, an inflammation of skin and underlying tissues, and leg swelling, unrelated to congestive heart failure and the resultant pulmonary problems. Shortly thereafter, he saw her in the office. He stated that at that time, her congestive heart failure was stable and that she did not exhibit shortness of breath, or have pulmonary edema.

Dr. Vellanki discussed her condition on April 5, 2002. He explained that Dolores Simmons’ severe acute pulmonary edema (fluid in the lungs) was caused by rapid, irregular heart beat (atrial fibrillation) which prevents the heart from pumping blood fast enough through the lungs. Thus, fluid accumulates, depleting the oxygen levels in the lungs. This required her to have a tube inserted down her throat into the lungs to help her to breathe comfortably. Oxygen is pumped |Bthrough the tube by a ventilator. Because she needed a ventilator to breathe, she was diagnosed with respiratory failure. Despite the physicians’ efforts, the treatment was unsuccessful and she died in Our Lady of the Lake Hospital in May of 2002.

Dr. Vellanki stated that Dolores Simmons’ did not suffer from shortness of breath daily, that, more likely than not, the severe stress from the evacuation triggered the rapid ventricular heart rate that led to shortness of breath and pulmonary edema as the fluid accumulated in the lungs, and to the resultant respiratory failure and death.

Dr. Albert Pearce, an expert in internal medicine and cardiology, explained the relationship between the heart and lungs, which are connected by the' pulmonary artery and veins. Dr. Pearce noted that the primary purpose of the heart is to pump oxygenated blood to the body. Its secondary purpose is to deliver oxygen-depleted blood to the lungs to be re-infused with oxygen. Following that, the oxygenated blood is sent back to the heart for delivery to the rest of the body. In cardiogenic (heart related) pulmonary edema, fluid builds up in the lungs because of a heart problem, as in this case. Cardiogenic pulmonary edema can occur due to atrial fibrillation and/or rapid ventricular rate and can result in heart failure. Normally, the atrial does not contribute significantly to cardiac output, but when the muscle is diseased, the atrial contributes up to 20% of the cardiac output. When atrial fibrillation occurs, heart failure can follow because the atrial cannot contract with sufficient strength to fill the heart. Dr. Pearce noted that congestive heart failure can be systolic and/or diastolic. In systolic heart failure, the weakened ventricle muscle, located in the upper part or chamber of the heart, lacks the full ability to squeeze. In diastolic heart failure, the muscle works well, but is thickened and requires more pressure for the muscle pump to fill the heart properly. Intubation provides the necessary oxygen. In non-eardiogenic | (¡pulmonary edema, the pulmonary fluid build-up is unrelated to heart problems. This is referred to as adult respiratory disease syndrome (ARDS).

In reviewing her history, Dr. Pearce noted that Dolores Simmons remained in respiratory failure from the day that she was admitted to the hospital until her death more than one month later. During her hospitalizations she was taken off the ventilator once, but she was unable to breathe on her own and the breathing tube had to be reinserted. Because she had been on the ventilator for some time and the larynx can be damaged with long-time use, a tracheostemy was performed. In that procedure, the breathing tube was inserted into Dolores Simmons’ neck via an incision.

Dr. Pearce noted that Dolores Simmons had been hospitalized shortly before this incident with cellulitis. He agreed with Dr. Yellanki that the cellulitis was unrelated to atrial fibrillation, rapid ventricular rate, pulmonary edema or respiratory failure. He also testified that stress can aggravate hypertension and some heart conditions, noting that the literature includes a study showing that congestive heart failure was often preceded by an emotional event. He also noted that she was a long time smoker, which can cause chronic obstructive pulmonary disease, and that she did not always take her hypertension medications. However, he felt that her pulmonary edema episodes were transient and that the lower area of her heart was thickened, impairing her ability to get sufficient oxygen. Although, he agreed that smoking and her pre-disposition to congestive heart failure could have contributed to her inability to get off the ventilator, Dr. Pearce testified that it was more probable than not that the stress of the evacuation caused the series of medical events that led to her death.

Dr. Carl Lavie, an expert cardiologist, disagreed with Drs. Pearce and Vellanki. He testified that the stress of the evacuation was not the precipitating cause of Dolores Simmons’ hospitalization following the evacuation, or of the ^conditions that led to her eventual death. He noted that she was morbidly obese, that she smoked for 40 years, and had heart/lung disease for 11 years. Dr. Lavie stated that the nurse’s report of Dolores Simmons’ hospitalization for cellulitis several weeks before the sulfur spill indicated that she was short of breath walking to the bathroom and, in his opinion, the leg swelling or cellulitis indicated that she was experiencing congestive heart failure at that time. He contended that her heart rate was no higher on the date of the accident than in her prior hospital admissions. Although he claimed that stress could have played a small part in raising her heart rate, her diastolic squeeze ability was severely impaired prior to the accident. He stated that her heart rate was brought under control within 1-2 days of hospitalization. Thus, had the heart caused the problems, the doctors should have been able to remove the breathing tube (extubate). He concluded that she could have had an infection or some other reason for the fluid retention unrelated to cardiac problems and that her death was probably caused by ARDS.

SCOPE OF REVIEW

On appellate review, the court’s function is to determine whether the findings of the trier of fact were clearly wrong or manifestly erroneous. Matta v. Snow, 01-760, p. 7 (La.App. 5th Cir.1/15/02), 807 So.2d 934, 938; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is a 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. Matta, 01-760 at p. 7, 807 So.2d at 938; Rosell, 549 So.2d at 844. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Matta, 01-760 at p. 7, 807 So.2d at 938; Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly |Rerroneous or clearly wrong. Matta, 01-760 at p. 8, 807 So.2d at 939; Stobart, 617 So.2d at 882. Only where the documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, may the court of appeal find manifest error, even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-845.

DUTY/RISK ANALYSIS

In determining liability for negligence under La.C.C. art. 2315, the courts employ the duty/risk analysis, following a four-prong inquiry: (1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff. Namely, was it a cause-in-fact of the harm which occurred? (2) Did the defendant(s) owe a duty to the plaintiff? (3) Was the duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?” Davis v. Witt, 02-3102, pgs. 10-11 (La.7/2/03), 851 So.2d 1119, 1126-1127. In order for a plaintiff to recover, all four inquiries must be affirmatively answered. In order to do so, a plaintiff must prove five separate elements: (1) that the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) that the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) the actual damages (the damages element). Id.

DUTY AND BREACH OF THE DUTY

The issue of whether a defendant had a duty to a plaintiff is a question of law. That question is answered by determining whether a plaintiff has any law 13(statutory or jurisprudential) to support his claim. Roberts v. Benoit, 605 So.2d 1032, 1043 (La.1991), on rehearing.

Clearly, in this case, the Defendants had a duty to the public that might be affected by the spilling of hazardous material in their neighborhoods. That duty was breached by the driver’s failure to execute an “S” curve on the River Road resulting in the chemical spill that mandated the evacuation.

SCOPE OF THE DUTY OR LEGAL CAUSE

There is no “rule” for determining the scope of the duty, whether stated in terms of proximate cause, legal cause, or duty. Roberts, 605 So.2d at 1044. The scope of the duty inquiry is a policy question as to whether the particular risk falls within the scope of the duty. Id. In Roberts, the Court stated:

Generally, the scope of protection inquiry becomes significant in “fact-sensitive” cases in which a limitation of the “but for” consequences of the defendant’s substandard conduct is warranted. These cases require logic, reasoning and policy decisions be employed to determine whether liability should be imposed under the particular factual circumstances presented....
In determining the limitation to be placed on liability for a defendant’s substandard conduct — i.e., whether there is a duty-risk relationship — we have found the proper inquiry to be how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced .... Although ease of association encompasses the idea of foreseeability, it is not based on foreseeability alone.” Absent an ease of association between the duty breached and the damages sustained, we have found legal fault lacking.

Roberts, 605 So.2d at 1045. [Citations omitted]

It is clear that the release of molten sulfur into a neighborhood could cause respiratory problems to the populace. That did not occur in this case. However, it is also reasonable to expect those affected to be anxious and nervous about the potential harm to them. This would be especially stressful for a person with medical conditions in general and respiratory problems in particular. Based on the testimony of Drs. Pearce and Vellanki, stress can and did raise Dolores Simmons’ heart rate and can and did lead to atrial fibrillation and ventricular rapid heart rate. hnThus, there is an ease of association between the evacuation caused by the accident, and to the harm here. In addition, her physical response was foreseeable given her medical history. We find therefore, that the Plaintiff proved legal causation as the harm was within the scope of the duty breached by the Defendants.

CAUSE-IN-FACT

A plaintiff in a personal injury lawsuit must prove causation by a preponderance of the evidence. Dabog v. Deris, 625 So.2d 492, 493 (La.1993). The cause-in-fact question is generally a “but for” inquiry. If the Plaintiff probably would have not sustained the injuries but for the Defendant’s substandard conduct, such conduct is a cause in fact. Roberts, 605 So.2d at 1042. “Stated differently, the inquiry is ‘[d]id the defendant contribute to the plaintiffs harm or is the defendant a cause of the plaintiffs harm?’ ” Crowe, The Anatomy of a Torh-Greenian, as Interpreted by Croive who has been Influenced by Malone — A Primer, 22 Loy.L.Rev. 903, 920 (1976); Roberts, 605 So.2d at 1042. If multiple causes exist, the courts use an alternative method, the “substantial factor” test for determining cause in fact. Roberts, 605 So.2d at 1042. Under this test, cause in fact exists when a defendant’s conduct was a “substantial factor” in bringing about a plaintiffs harm. Id., Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). The Roberts Court stated that in determining cause-in-fact under either method, it is irrelevant whether the defendant’s actions were “lawful, unlawful, intentional, unintentional, negligent or non-negligent,” citing Green, The Causal Relation Issue in Negligence Law, 60 Mich.L.Rev. 543, 549 (1962); Roberts, 605 o.2d at 1042. “Rather, the cause in fact inquiry is a neutral one, free of the entanglements of policy considerations — morality, culpability or responsibility — involved in the duty-risk analysis.” Id. To the extent that a defendant’s actions had something to do with the injury the plaintiff | ti sustained, the test of a factual, causal relationship is met. Roberts, 605 So.2d at 1042.

In addition, it is axiomatic that a tortfeasor takes his victim as he finds her. Lasha v. Olin, 625 So.2d 1002, 1006 (La.1993). A defendant’s liability for damages is not mitigated by the fact that the plaintiffs pre-existing physical infirmity is responsible in part for the consequences of the plaintiffs injury. Id.

Two physicians in this ease testified that the extreme stress of the evacuation caused Dolores Simmons’s rapid, chaotic heartbeat that lead to pulmonary edema and respiratory failure. Their conclusion was disputed by Dr. Lavie. All of the doctors were eminently qualified in their fields and all had access to Dolores Simmons’ medical history. Since neither the documents nor objective evidence so contradicted their testimony, nor was the testimony so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, the trial judge’s determination of credibility cannot be disturbed. Furthermore, the Defendants cannot avoid liability because of Dolores Simmons’ medical history. They must take her as they found her. Thus, we find no manifest error in the finding that the accident and evacuation caused Dolores Simmons’s death.

DAMAGES

The standard for the review of damage awards is whether, after an articulated analysis of the facts, the appellate court finds that the trial judge abused his great discretion. Farrell v. Pierre, 02-1136, p. 9 (La.App. 5th Cir.4/8/03), 846 So.2d 49, 55; Matta, 01-760 at p. 8, 807 So.2d at 939; Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). This determination is made with consideration to the individual circumstances of an injured plaintiff. Farrell, 02-1136 at p. 9, 846 So.2d at 55; Matta, 01-760 at p. 9, 807 So.2d at 939; Theriot, 625 So.2d at 1340. After an analysis of the facts and circumstances peculiar to the particular case and |12a particular plaintiff, an appellate court may conclude that the award is inadequate (or excessive). Farrell, 02-1136 at p. 9, 846 So.2d at 55; Matta, 01-760 at p. 9, 807 So.2d at 939; Theriot, 625 So.2d at 1340. Only then does the appellate court resort to prior awards, and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Farrell, 02-1136 at p. 9, 846 So.2d at 55; Matta, 01-760 at p. 9, 807 So.2d at 939; Theriot, 625 So.2d at 1340.

SURVIVAL DAMAGES

The Defendants contend that the survival award is excessively high considering that Dolores Simmons did not exhibit conscious pain and suffering during the month prior to her death. The only evidence at trial on this issue was the medical records. In both doctors’ and nurses notes, it is reported that she appeared comfortable on the ventilator, that she exhibited no signs of distress, and that she was sitting up in bed watching television or resting quietly. The respiratory therapists that treated her also noted that her respirations were regular and unlabored, her breath was clear, free of cough, her nasal drainage/sputum was clear and her nails and mucous membranes were pink. The Defendants assert that these signs indicate that she was getting adequate oxygen and had good blood circulation. During her stay, she was not confined to her bed and could move to a chair or wheelchair. Furthermore, the nurses’ notes at Our Lady of the Lake Hospital consistently report a pain level of “0.” Citing various cases, the Defendants contend that the highest award that could be awarded for her pain and suffering is $50,000.

The Plaintiff argues that Dolores Simmons spent the last month of her life conscious, but trapped in a hospital bed, intubated and completely unable to speak or to fully convey her thoughts and feelings to her son, family and friends who visited her every day. As the days went on, her breathing became more labored, until she took her last breath. In his reasons for judgment, the trial judge stated that 1 is“The life which Dolores Simmons led after the onset of the severe acute pulmonary edema was one of suffering and pain.” He stated that being “comfortable” in a hospital is not the same as being comfortable when one is healthy, and that being intubated and having trouble breathing is unquestionably painful. He recognized that she had to endure all of this for over a month.

In photographs admitted into evidence while she was in the hospital, it is apparent that the trial judge is correct that being comfortable in a hospital is a relative term. Dolores Simmons had several needles and tubes connecting her to various machines. She could not speak and had a writing board with paper on her lap for communication. Furthermore, Marlon Simmons testified that, while waiting to be admitted on April 5, 2002, she told him that she did not think she was going to make it this time. Thus, for a month, she feared her death. Unfortunately, because she was never taken off the breathing tube, those were the last words that she spoke to her son.

While we do not doubt that Dolores Simmons’ experiences in the hospital were painful, unpleasant and fear producing, we find that the award for Dolores Simmons’ pain and suffering is excessively high given the particular facts and circumstances of this case. After reviewing the case law, we found no cases that are sufficiently similar to guide us in determining the highest amount that is reasonably within the trial judge’s discretion. Nevertheless, we find that the highest amount that could reasonably be awarded for Dolores Simmons’ pain and suffering is $450,000 and will amend and reduce the survival award to that amount.

WRONGFUL DEATH DAMAGES

The elements of damage for a wrongful death action are loss of love, affection, companionship, services, support, medical expenses and funeral expenses. See, Bujol v. Entergy Services, Inc., 00-1621, p. 46 (La.App. 1st Cir.8/14/02), 833 So.2d 947, 983 and Clark v. G.B. Cooley Service, 35,675, p. 9 (La.App. 2nd Cir.4/5/02), 813 So.2d 1273, 1280. “Attempts to measure in money such intangibles as grief, loss of love and affection, and loss of companionship are subjective and discretionary....” Comberrel v. Basford, 550 So.2d 1356, 1362 (La.App. 5th Cir.1989), writs denied, 556 So.2d 1284, 1285, 1286 (La.1990); Bujol, 00-1621 at 46, 833 So.2d at 983.

The Defendants claim that an award of $300,000 to Marlon Simmons for the wrongful death of his mother is excessively high. They assert that, although he described a close and loving relationship with his mother and claimed he lived with her his entire life except for six months, he was unaware of her prior hospitalizations, and knew only about her high blood pressure and “a problem with her sugar.” The Defendants note that when she filled out the admission forms to the various hospitals, she never put his name down as the person to contact. In addition, the Occupational Therapy Evaluation made at Our Lady of the Lake Hospital on the day before she died reflects that she “lives alone.” The Defendants also argue that Dolores Simmons lived past her life expectancy and had medical problems. According to the medical experts, she could have died at any time. The Defendants assert that given these facts, the highest award that is appropriate for her wrongful death is $125,000.

Marlon Simmons’ testified that he had a close and loving relationship with his mother. He stated that he lived with her his entire life except for six months he was married. She fixed the family breakfast every morning and he took her shopping and to her medical appointments. Marlon Simmons was vague about his mother’s medical conditions, but spent all of his free time in the hospital with her during her last days. During his testimony he was emotionally overcome when he spoke about her. Furthermore, Marlon Simmons’ son was also living with the family and being cared for by Dolores Simmons while he worked. After her death, | iBMarlon had to send the child to live with the child’s mother in New Orleans because he had no one to care for the child while he was working. Under these facts, we find that the award for wrongful death was not an abuse of the trial judge’s great discretion.

Accordingly, we hereby amend and reduce the survival damages to $450,000. We affirm the judgment in all other respects, as amended. Costs of this appeal are assessed against the Defendants.

AMENDED IN PART AND AFFIRMED AS AMENDED.


author: IsSOL GOTHARD, Judge.

text:
    BOARD OF COMMISSIONERS OF THE LAFOURCHE BASIN LEVEE DISTRICT v. RATHBORNE LAND COMPANY, INC.
    No. 08-CA-1206.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Jude G. Gravois, Vacherie, LA, Dale J. Brou, Boutte, LA, for Plaintiff/Appellant.
    Newman Trowbridge, Jr., Lafayette, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   IsSOL GOTHARD, Judge.

Plaintiff, Board of Commissioners of the Lafourche Basin Levee District (Levee District) appeals from a judgment dismissing its action to be declared owner of lands in possession of defendant Rathborne Land Co. (Rathborne). We affirm the decision of the trial court.

The Levee District instituted this action alleging that it was owner of property bordering Lake Des Allemandes that was in possession of Rathborne Land. The Levee Board argued that it was the owner of the disputed property by virtue of a perfected title tracing back to the sovereign via a land grant from the United States to the State of Louisiana in 1923. Rathborne, in defense, argued that the patent purporting to vest ownership of the disputed land in the State of Louisiana was invalid, as the property at issue had already been deeded to its (Rathborne’s) ancestors in title.

The facts adduced at trial reflect that in the winter of 1830, pursuant to a contract with the Surveyor General of the United States, Thomas Evans conducted a survey of the lands bordering Lake Des Alle-mands, more specifically Township 13 South, Range 18 East, bordering on Lake Des Allemandes. An official plat of the survey was approved in 1832. That plat depicted a fractional section 9, bordering on the lake and containing 595.5 acres. (Each section that is not fractional contains 640 acres.) The plat also depicted a fractional section 10, bordering on the lake and subdivided into two lots. The east lot contained 163.96 acres and the west lot contained 84.03 acres. Thereafter, Adolph Wiendahl |3acquired ownership of the west half of fractional section 10; John Rykow-ski acquired ownership of the east half of fractional section 10; and Lezin Becnel acquired ownership of fractional section 9. In 1904, the Louisiana Cypress Lumber Company obtained ownership of all the lands in fractional section 9 and the east half of fractional section 10. It also acquired ownership of a portion of the west half of fractional section 10. In 1927, Rathborne acquired ownership of the property from Louisiana Cypress Lumber Co., and it has been in possession since that time.

In 1859, a resurvey of a portion of Township 13 South, Range 18 East was conducted by Maurice Hauke, and an official plat of this survey was approved in 1859. Hauke’s plat depicts section 9 as a complete section, not bordering the lake and containing 640 acres, and fractional section 10 as containing 639.6 acres. Thus, Hauke’s resurvey increases the area of section 9 by 44.5 acres and section 10 by 391.6 acres.

Subsequently, the State of Louisiana selected sections 9 and 10 pursuant to the Swamp Land Grant. On July 15,1896, the United States cancelled these selections as duplicative. Thereafter, on September 25, 1923, the United States issued a patent to the State of Louisiana for those portions of section 9 and 10 “lying between the meanders of Lake Des Allemands as shown on the plat approved July 9, 1832 and the meanders of that lake as shown on the plat approved September 26, 1859.” On March 15,1951, the State transferred that portion of land to the Levee District, plaintiffs herein.

On June 16,1999, the Levee Board instituted this petitory action, seeking to be recognized as owner of the land “lying between the meanders of Lake Des Alle-mandes on the survey plat approved on July 9, 1832” and “the meanders of |4Lake Des Allemandes as shown on the survey plat approved on September 28(20), 1859.” After trial on the merits, the trial court rendered judgment declaring Rathborne to be the owner of “44.50 acres in Section 9, Township 13 South, Range 18 East, and; 391.23 acres in Section 10, Township 13 South, Range 18 East.” The Levee District filed a motion for new trial, which the trial court granted only on the narrow issue of Rathborne’s claim to the property located in the western half of fractional section 10. Thereafter, the trial court rendered judgment on the new trial, holding that “... the Board is not the owner of the excess property in question. Additionally, Rath-borne has not presented evidence sufficient to delineate with specificity the ownership parameters of Lot 2 in the west half of Section 10 and, therefore, cannot be declared owner of the excess land in the west half of Section 10.”

Plaintiff initiated this suit as a petitory action, admitting that Rathborne was in possession of the land in question.

La C.C.P. art. 3651 states:

The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership.

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof. La. C.C. art. 531; La. C.C.P. art. 3653(1). That is, the plaintiff must show “valid record title”, or “title good against the world without regard to the title of the party in possession.” The plaintiff must produce a prima facie complete chain of title before the defendant in possession must go forward with any proof. Gaudet v. City of Kenner, 487 So.2d 446, (La.App. 5 Cir.1986), writ den. 493 So.2d 638 (La.1986). Once plaintiff has proved |Khis title, the focus is then on defendant’s title. Bickham, Inc. v. Graves, 457 So.2d 1210, (La.App. 1 Cir.1984).

Plaintiff herein has produced title back to the sovereign, by virtue of a patent issued in 1929. Thus, the focus then shifted to Rathborne. Rathborne contended the patent issued by the United States was invalid, because it purported to transfer ownership of land that the United States did not own. Rathborne argued that the patents issued pursuant to the Evans survey transferred the ownership of the land up to the water’s edge, and therefore the United States could not issue a patent for land “from meander to meander.”

In general, meanders are not to be treated as boundaries, and when the United States conveys a tract of land by patent referring to an official plat which shows the same bordering on a navigable river, the purchaser takes title up to the water line. Producers Oil Co. v. Hanzen, 238 U.S. 325, 35 S.Ct. 755, 59 L.Ed. 1330 (1915). The meander line is not a boundary, but the body of water whose margin is meandered is the true boundary. Mitchell v. Smale, 140 U.S. 406, 11 S.Ct. 819, 35 L.Ed. 442 (1891). The reason for this rule is that it is not possible for a surveyor to delineate precisely, in a series of straight lines, the meanders of a stream or body of water. Land v. Brockett, 162 La. 519, 110 So. 740 (1926), cert. den. 273 U.S. 757, 47 S.Ct. 460, 71 L.Ed. 877 (1927). Furthermore, a resurvey after the issuance of a patent does not affect the rights of the landowner. United States v. State Investment Co., 264 U.S. 206, 44 S.Ct. 289, 68 L.Ed. 639 (1924). However, if the facts and circumstances affirmatively disclose an intention to limit the grant to actual traverse lines, these must be treated as definite boundaries. Producers Oil Co., supra.

This rule, that the purchaser takes to the water line, will not be applied where the facts conclusively show that no body of water existed or exists at or near the place indicated on the plat, or where there never was an attempt to survey the Rland in controversy. Jeems Bayou Fishing & Hunting Club v. United States, 260 U.S. 561, 43 S.Ct. 205, 67 L.Ed. 402 (1923); United States v. Zager, 338 F.Supp. 984 (E.D.Wis.1972). Likewise, the rule will not be applied where the circumstances, as well as the extent and character of the lands, necessitate the conclusion that the omission was deliberate, or the result of such gross and palpable error as to constitute a fraud upon the government. Jeems, supra.

In Zager, supra, 338 F.Supp. at 989, the court said:

In dealing with the exception based on gross error, it is important that the adjective “gross” not be overlooked, for as indicated earlier when dealing with the Government surveys of the last century, error is to be expected. Indeed, the general rule is founded upon this expectation for the rule “evolved because of the difficulty surveyors had in following the edge or margin of projections of land and all the various sinuosities of the water line.” And because when these surveys were undertaken, often “the lands were of such little value, the locality so wild and remote, and the attendant difficulties so great that the expenditure of energy and money necessary to run the lines with minute regard to the sinu-osities of the lake would have been quite out of proportion to the gain.” Thus, in deciding a question of gross error, attention must be paid to “the amount and proportion of acreage between the meander line and the shore,” and this must be balanced with “the circumstances surrounding the original survey, and the type and comparative value of the land at that time.”

The trial court, in its ruling, applied the general rule to find that appellees were the owners of the property at issue. It considered the exceptions to the rule as set forth in the applicable jurisprudence, and found that none were applicable to this case. In this appeal plaintifflappellant, the Levee District, argues error in the trial court’s application of the law to the facts of this case. The Levee Board contends that the trial court erred in its interpretation of the applicable jurisprudence, and that the correct application of those cases results in a finding that the meander, and not the water line, is the boundary.

The Levee District first contends that the trial court committed manifest error in finding that the land in dispute was in existence when Evans conducted his survey in 1830. The Levee District argues that the field notes prepared by Evans 17while conducting the survey are part of that survey. In those notes Evans stated that he placed his markers at or near the lake, and he did not state that there was land that could not be accessed. Accordingly, the land between the Evans meander and the Hauke meander accrued after Evans’ survey and was not deeded to Rathborne’s ancestors in title.

Rathborne contends that the land at issue was in existence in 1830, and therefore was included in the patent issued to its ancestors in title. Rathborne points to the testimony of its expert witness, who stated that it was geologically impossible for the land lying between the meanders to have emerged between 1832 and 1859.

The trial court considered the evidence presented by both plaintiff and defendant, and found that “The court is convinced, with both the assistance of Mr. Battle [the expert witness] and common sense, that the land in question ‘existed’ when Evans surveyed the property” and that the land was “overflow prairie.” Our review of the record fails to find manifest error in this ruling.

The remaining allegations of error made by the Levee Board assign legal error to the trial court’s application of the jurisprudence in resolving this issue. The Levee Board further contends that the trial court erred in distinguishing the Jeems case, supra, and in refusing to consider the legal effects of Evans’ failure to survey the land. Finally, the Levee Board argues that the trial court erred in its interpretation of the “gross error” rule.

In his reasons for judgment, the trial court stated that there was no evidence to suggest that the survey did not take place, rather, “the detailed notes, in conjunction with the maps showing the shoreline of Lake Des Allemands and the overflow prairies are convincing evidence that Evans did complete a traverse what he thought were the boundaries of the lake.” After our review of the record, we agree with the trial court.

lain finding that the “gross error” rule was not applicable, the court said:

In this case, Mr. Evans surveyed a total of 13,492.56 acres in Township 13, Range 18 East. The later survey, performed by Maurice Hauke, shows a total area for the same Township as 17,571.01 acres. Thus, comparing the two survey results in a total area of omitted land in.the amount of 4,078.45 acres, or 23.21%. Considering that at the time the survey was made, “the lands were of such little value, the locality so wild and remote, and the attendant difficulties so great that the expenditure of energy and money necessary to run the lines with minute regard to the sinuosities of the lake would have been quite out of proportion to the gain,” the court cannot say that a 23.21% discrepancy rises to the level of “gross error.”

In their motion for new trial, the Levee Board argued that the trial court erred in using the “entire township” standard as a basis for deciding the issue of gross error. The trial court rejected that argument and declined to grant a new trial on that issue, stating that:

... it makes more sense to compare all of the land surveyed by Mr. Evans in the Township to the amount that was omitted. This is so because the gross error exception rests on the errors of the surveyor. In this case, Evans was the surveyor. Thus, the only way for this court to determine whether Mr. Evans’ errors were “gross” is to look at all of the work he performed in this area, and to then determine his total error. Looking at one fractional section, on the other hand, would only give a small picture of Mr. Evans’ error. For example, if Mr. Evans had only omitted 2 acres on a 60 acres fractional section, but had otherwise omitted 60% of the remaining sections making up a Township, a comparison of only the fractional section would lead to the conclusion that his survey was not in “gross error” while clearly, regarding the entire Township would lead to the opposite conclusion.

We agree with this rationale of the trial court, and we decline to disturb its ruling. Because we find that the trial court did not commit error in failing to find “gross error,” we find no error in its determination that the Levee District was not the owner of the land at issue.

For the above discussed reasons, the ruling of the trial court is affirmed, all costs are assessed against appellants.

AFFIRMED.

      . Ownership of the remaining west half of fractional section 10 was acquired by Graug-nard and Caire, who are not a party to this suit.


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    Joddie L. CRENSHAW and Holly Crenshaw v. BAYOU LAND AND MARINE CONTRACTORS, INC. and Scottsdale Insurance Company.
    No. 03-CA-1231.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Edward F. Downing, John W. Houghtal-ing, II, Gauthier, Downing, Labarre, Beiser & Dean, Metairie, LA, for Joddie L. Crenshaw and Holly Crenshaw, Plaintiff'Appellant.
    Patricia McKay Clotiaux, Waller & Associates, Metairie, LA, for Travelers Property Casualty Corporation, Intevenor-Ap-pellee-2nd Appellee.
    Wayne Maldonado, Richard C. Bates, Ginger K. Deforest, Ungarino & Eckert, LLC, Metairie, LA, for Bayou Land and Marine Contractors, Inc., et al, Defendants/Appellees.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

This case arises from an accident that occurred on February 25, 1999 at the job site of a canal development project in Me-tairie, Louisiana. According to the plaintiff, Joddie Crenshaw, the project basically involved digging a canal, pouring a concrete bottom and walls, and putting a force main on the west side to connect it to an existing pumping station. At the time of the accident, Mr. Crenshaw was working as an equipment operator for Circle, Inc. (“Circle”), which was the general contractor on the project, and Bayou Land and Marine Contractors (“Bayou”) was one of the subcontractors that was assisting with the project.

In order to perform the work on the project, temporary roadways had to be built over the canal. The temporary roadways were constructed by placing sheet pilings on the sides of the canal and then placing roadway beams and single beams east to west on top of the sheet pilings. Wooden mats were placed over the beams north to south to form the roadway. As the project progressed, portions of the temporary roadway would usually be moved using a “leapfrog” method by which the last section of roadway would be moved by a crane to the front of the roadway and rebuilt, allowing the project to move north.

|3On the date of the accident, a crane driven by Brian Gonzales, a Bayou employee, was carrying a bulldozer along the temporary roadway, when the roadway collapsed. Mr. Crenshaw, who was standing on a beam at the time of the accident, fell into the canal and was trapped underneath a beam for a short amount of time. Mr. Crenshaw sustained several injuries and one of the other workers died as a result of the accident.

On January 31, 2000, Mr. Crenshaw filed a Petition for Damages against Bayou and its insurer, Scottsdale Insurance Company, alleging that the accident was caused by the negligence of Bayou. Travelers Property and Casualty Corporation (“Travelers”), as Circle’s worker’s compensation carrier, intervened in the suit to recover benefits paid to Mr. Crenshaw as a result of this accident.

Trial in this matter was held on August 20, 2002. On December 4, 2002, the trial court rendered a judgment, along with reasons, in favor of the defendants, dismissing the plaintiffs claims against them with prejudice. It is from this judgment that the plaintiff, Joddie Crenshaw, appeals.

FACTS

At trial, three witnesses testified. The first witness was the plaintiff, Joddie Crenshaw. He testified that he was working on a canal project for Circle as an equipment operator at the time of the accident. He stated that temporary roadways had to be built over the canal so that they could work in certain areas of the canal at different times. Prior to his employment with Circle, Mr. Crenshaw worked for Bayou on this project. He testified that it was Bayou’s responsibility to do the sheet pile work and to build the temporary roadways over the canal. Circle supplied the materials for the roadways.

Mr. Crenshaw stated that he was at the job site every day and that Bayou employed the only sheet pile crew on the job. On the day before the accident, Mr. 14Crenshaw pulled up a 60-foot section of mats with a trackhoe and moved them to the north end, because they needed the roadway in place in that area to put the sub-base material, crushed concrete, in the canal. On the morning of the accident, Mr. Crenshaw saw Bayou employees remove part of the roadway from the south end and use it to replace and cover up part of the section that Mr. Crenshaw had removed the previous day. He testified that the section of roadway that Bayou employees put in place on the morning of the accident was the section that subsequently collapsed. He stated that Bayou employees were the last ones to put that section in place prior to the accident.

Mr. Crenshaw stated that prior to the accident, his supervisor, Dale Dominguez, wanted to get a bulldozer placed in the canal through one of the holes where mats had been removed from the roadway, so Mr. Dominguez asked Brian Gonzales, who was a Bayou employee, to move it with Bayou’s crane. The bulldozer weighed approximately 13,500 pounds, but the crane was capable of carrying about 50 tons. Mr. Crenshaw was standing on one of the roadway beams when he heard the crane’s cables “singing” behind him. He turned around and saw the mats collapsing and the bulldozer falling. Mr. Crenshaw was thrown from the beam into the canal and was pinned down by a beam.

Mr. Crenshaw testified that Mr. Gonzales had a history of driving the crane too fast. He stated that he and Mr. Dominguez had both previously asked Mr. Gonzales to slow the crane down, because driving too fast on a temporary roadway can cause too much deflection of the mats and can be dangerous. However, Mr. Cren-shaw did not know if Mr. Gonzales was driving the crane too fast on this occasion. It appeared to him that the crane was traveling properly.

The second witness to testify was Dale Dominguez, who was employed by Circle as a field superintendent. He worked on the canal project and basically oversaw the job for Circle. He testified that Bayou was responsible for building |ñthe temporary roadways over the canal during the project. On the day of the accident, he needed to have a bulldozer placed through a gap in the temporary roadway. He asked Mr. Gonzales if he could handle moving the bulldozer to this location and he answered affirmatively. He told Mr. Gonzales to “take it slow,” because Mr. Gonzales had a habit of driving the crane too fast. He stated that he had previously talked to Mr. Gonzales and his supervisor about him driving too fast over the temporary roadway.

Mr. Dominguez stated that Bayou employees were the last to move the mats to the location where the roadway collapsed. After Mr. Crenshaw moved some mats on Wednesday, the gap in the roadway was very wide. Bayou filled a portion of the gap with mats on the morning of the accident. The portion of roadway that collapsed under the crane was the portion of roadway that Bayou had refilled that day.

On cross-examination, Mr. Dominguez could not say for certain that the mats were improperly placed or that Mr. Gonzales drove improperly and caused the accident. He did not know how fast Mr. Gonzales was driving at the time of the accident. He admitted that there were times during the project when Circle employees would remove portions of the roadway that had been placed by Bayou, and then Circle would replace it after they finished their work.

The third and final witness, Brian Gonzales, testified for the defense. He stated that he had been operating cranes for at least 3^4 years at the time of the accident. He was employed by Bayou as a crane operator at the time of the accident, though he was not licensed to operate a crane at that time. He testified that when Bayou would construct portions of the temporary roadway, Circle employees would often disassemble it in order to do their work. He stated that on the day of the accident, Bayou was not working in the area where the accident |fioccurred so there would have been no reason for Bayou to have constructed the portion of roadway that collapsed.

He stated that he was asked to move a bulldozer, and he was about to lower it through the gap in the road when he felt as if he was falling through the road beneath him. He immediately dropped the bulldozer so that the crane would not tip forwards. He testified that no one had ever spoken to him about driving too fast or improperly operating the crane.

Mr. Gonzales admitted that part of his job was to take sections of the roadway from the south end and transfer them to the north. However, he asserted that Bayou employees did not move part of the roadway from the south end to fill in the gaps in the road on the date of the accident. In his prior deposition, he indicated that he did not know who built the portion of the roadway that collapsed. At trial, he explained that he did not know the specific person was who built the roadway, but it had to be a Circle employee because he was certain that Bayou did not built it. He stated that he did not see a Circle employee build it, but he would have been the person to build it if Bayou had done it, and he definitely did not build that portion of the roadway. Therefore, it had to have been built by Circle.

In a judgment dated December 4, 2002, the trial judge concluded that the plaintiff failed to meet his burden of proof by a preponderance of the evidence that Bayou was negligent and caused the accident.

DISCUSSION

On appeal, the plaintiff asserts three assignments of error. In his first assignment of error, he argues that the trial court erred in finding that the plaintiff failed to establish by a preponderance of the evidence that the defendants, Bayou Land and Marine Contractors, Inc. and Scottsdale Insurance Company, breached their duty of care owed to Joddie L. Cren-shaw.

|7The plaintiff argues that the only two possible causes for the collapse of the roadway are: 1) the temporary roadway was negligently built; or 2) the crane was improperly driven and caused the roadway to collapse. He contends that Bayou is liable for the accident in either case, because a Bayou employee, Mr. Gonzales, was operating the crane, and Bayou employees built the section of roadway that collapsed. Bayou denies that its employees constructed the portion of roadway that collapsed or that Mr. Gonzales négli-gently operated the crane.

The primary disputed issue in this case is which company built the section of roadway that collapsed. In its reasons for judgment, the trial court stated in part as follows:

Due to the conflicting testimony at trial, the Court is unable to determine whether Circle or Bayou Land and Marine actually built that portion of the roadway where the accident occurred. As such, this Court can only speculate as to what caused the roadway to collapse, and is unable to conclude with any reasonable certainty that the defendants breached a duty of care or were negligent.

In order to determine whether liability exists under the facts of a negligence case, the plaintiff has the burden of proving by a preponderance of the evidence that: 1) the conduct in question was the cause-in-fact of the resulting harm; 2) the defendant owed a duty of care to the plaintiff; 3) the requisite duty was breached by the defendant; and 4) the risk of harm was within the scope of protection afforded by the duty breached. State Farm Mutual Automobile Ins. Co. v. McCadney, 01-900 (La.App. 5 Cir. 12/26/01), 806 So.2d 776, 778-779. Proof by a preponderance of the evidence means that, taking the evidence as a whole, such proof shows that a fact sought to be proven is more probable than not. Johnson v. Lee, 00-78 (La.App. 5 Cir. 5/30/00), 760 So.2d 1273, 1277. The fact sought to be proven by the plaintiff in the present case was that Bayou built the roadway that | ^collapsed and caused the plaintiffs injuries or, alternatively, Mr. Gonzales negligently drove the crane and caused the roadway to collapse.

An appellate court may not set aside the trial court’s decision unless it is manifestly erroneous or clearly wrong. Ramirez v. Girouard, 02-887 (La.App. 5 Cir. 12/30/02), 836 So.2d 549, 551. If the trial judge’s findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even if it would have weighed the evidence differently. Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3 Cir. 11/2/00), 774 So.2d 1022, 1025. An appellate court must view the evidence in the light most favorable to the party who prevailed in the trial court. Id. at 1027.

In the present case, the trial judge considered the evidence presented and found that Mr. Crenshaw did not prove by a preponderance of the evidence that Bayou caused the accident. The testimony presented regarding who built the portion of the roadway that collapsed was disputed. Mr. Crenshaw and Mr. Dominguez stated that Bayou built the road, whereas Mr. Gonzales asserted that it had to be Circle who built the road. Although the plaintiff asserts that Bayou was contractually responsible for building the roadways, the pertinent question is who built the roadway in this instance, and the parties presented conflicting testimony on this issue. Further, although there was conflicting testimony regarding whether or not Mr. Gonzales had been previously reprimanded for driving cranes too fast, there was no testimony that anyone witnessed Mr. Gonzales improperly driving the crane on this occasion.

It is the trier-of-fact’s duty to assess the credibility of the witnesses and to make factual determinations. Bradbury v. Thomas, 98-1678 (La.App. 1 Cir. 9/24/99), 757 So.2d 666, 673. However, when the evidence is insufficient to establish a fact at issue, the trial court must find that the plaintiffs burden has not been met. This does not mean that the trial court failed to make credibility 19determinations, find facts, and consider the evidence presented. Rather, it simply means that after considering the testimony and evidence presented, the trial court found that the plaintiff lacked the necessary evidence to tip the scales to the level of a preponderance of the evidence. See Darbonne v. Wal-Mart Stores, Inc., supra at 1026, wherein the Court discussed insufficiency of the evidence arguments.

Considering the testimony and evidence in this case, we cannot say that the trial court’s decision that Mr. Crenshaw did not satisfy his burden of proof was manifestly erroneous. Accordingly, this assignment of error is without merit.

In his second assignment of error, Mr. Crenshaw contends that, after being presented unequivocal evidence that Bayou built the roadway that collapsed, the trial court erred in refusing to make the factual determination as to whether or not Bayou Land and Marine Contractors, Inc. built the portion of roadway which collapsed.

As stated above, the testimony regarding who built the roadway was disputed and not unequivocal, because the Circle witnesses testified that Bayou built the roadway and Bayou’s witness argued that Circle built the roadway. The trial judge did not believe that the plaintiff proved by a preponderance of the evidence that Bayou built the portion of roadway that collapsed under the crane, and failure to make such a finding was not manifestly erroneous in light of the evidence presented to the court. This trial judge’s finding was reasonable and will not be disturbed. Therefore, this assignment of error is without merit.

In his third and final assignment of error, Mr. Crenshaw asserts that the trial court erred in finding the doctrine of res ipsa loquitur inapplicable to the facts surrounding the accident at issue.

The doctrine of res ipsa loqui-tur is a rule of circumstantial evidence that infers negligence on the part of the defendant when the facts of the case indicate that negligence of the defendant is the most probable cause of the accident, in the | inabsence of other equally probable explanations offered by credible witnesses. Allen v. Blanchard, 99-0277 (La.App. 1 Cir. 3/31/00), 763 So.2d 704, 709; Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 660 (La.1989). In order to apply the doctrine of res ipsa loquitur, the plaintiff must show: 1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant, 2) the defendant had exclusive control over the thing causing the injury, and 3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on the defendant’s part. Williamson v. St. Francis Cabrini Hosp. of Alexandria, 99-1741 (La.App. 3 Cir. 5/10/00), 763 So.2d 50, 54, writ denied, 00-2149 (La.10/6/00), 771 So.2d 83.

Mr. Crenshaw contends that the elements of res ipsa loquitur have been met in this case. He argues that he sufficiently showed that there is an inference of negligence, because the roadway would not have collapsed absent: 1) improper construction of the temporary roadway, or 2) negligent driving by the crane operator. He states that the testimony established that the accident was more likely than not caused by the negligence of Bayou because Bayou employees built the section of roadway and drove the crane. He contends that the “exclusive control” element is satisfied if the circumstances indicate that it is more probable than not that the defendant caused the accident and other plausible explanations do not appear to be the cause of the accident. Further, Mr. Cren-shaw states that Bayou has implied but provided no evidence to show that Circle’s occasional dismantling and replacement of the wooden mats caused any damage to the mats that Bayou used on the morning of the accident to construct the section of roadway that collapsed.

Bayou responds that res ipsa loquitur is not applicable because it only applies when all other reasonable hypotheses other than the defendant’s fault have |nbeen ruled out, as stated in Valiant Insurance Company v. City of Lafayette, 574 So.2d 505 (La.App. 3 Cir.1991). Bayou states that, in the present case, other hypotheses, such as negligence of Circle, faulty building materials, or faulty design have not been ruled out.

Bayou further contends that Mr. Cren-shaw presented no evidence or expert testimony to indicate why the roadway collapsed or how often such a collapse occurs. Therefore, he failed to show that the circumstances of this case are so unusual and extraordinary that an inference of negligence should be inferred. Even if the circumstances support an inference of negligence, Bayou asserts that the inference is not attributable to Bayou. Mr. Crenshaw did not prove that Bayou erected the roadway section that collapsed, and even if it was improperly constructed, it may have been constructed by Circle. Further, Bayou did not have “exclusive control” over the roadway. The testimony of Mr. Cren-shaw and Mr. Dominguez showed that Circle employees were involved in movement, disassembly, and reassembly of the roadway, and Mr. Dominguez was the supervisor for Circle and directed Bayou’s activities at the time of the accident.

The doctrine of res ipsa loquitur should be applied sparingly and only in exceptional cases where the demands of justice make that application essential. Gautreaux v. W.W. Rowland Trucking Co., Inc., 99-1002 (La.App. 5 Cir. 2/29/00), 757 So.2d 87, 92, writ denied, 00-0915 (La.5/12/00), 761 So.2d 1291. Considering the testimony and evidence in this matter, we conclude that the trial court was correct in finding that res ipsa loquitur does not apply to the facts of this case, because the elements necessary for application of this doctrine have not been met. The plaintiff has not established that Bayou had exclusive control over the portion of the roadway that collapsed. Further, the issue of who was the last to construct the portion of roadway that collapsed was disputed, and Bayou’s negligence was not the only possible cause of the accident that was reasonable. |12The trial judge listened to the testimony and found that Mr. Cren-shaw did not establish by a preponderance of the evidence that Bayou constructed the portion of roadway that collapsed. Further, the trial judge could not determine the cause of the accident based on the evidence presented and stated, “[tjheories as to the actual cause of the accident, based on the testimony and evidence, can only remain speculative.”

The plaintiff was required to show the accident was more likely than not caused by Bayou’s negligence. However, he failed to do so. He did not establish the cause of the accident, and testimony showed that other causes of the accident, such as the negligence of Circle, were just as likely as the negligence of Bayou. Accordingly, because the elements of res ipsa loquitur have not been satisfied, we find that this assignment of error is without merit.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court, dismissing the plaintiffs claims against Bayou and Scottsdale. We further note that Travelers is not entitled to any of the relief sought in its intervention, based on the finding that Mr. Crenshaw did not prevail in this appeal.

AFFIRMED.

      . Mr. Crenshaw’s wife, Holly Crenshaw, was also a plaintiff in this matter, but her loss of consortium claim was settled.


text:
    Stacy Pizani, Wife of/and Sidney Lawrence FABRE, Individually and on Behalf of their Minor Children, Torylynn Fabre, Sidney Lawrence Fabre, Jr. and Myra Fabre v. ATLAS BOATS, INC., and XYZ Insurance Company.
    No. 03-CA-1216.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Lawrence Blake Jones, David C. Whit-more, Scheuermann and Jones, New Orleans, LA, for Plaintiff-Appellant.
    Robert E. Barkley, Jr., Jan K. Frankow-ski, Barkley and Thompson, L.C., New Orleans, LA, for Defendant-Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   | .EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Stacy Pizani and her children, Lawrence Blake Jones, her attorney, Scheuermann and Jones, a law firm, Atlas Boats, Inc., Champion Offshore Boat Services, Inc. and Marathon Oil Company, all defendants in an intervention action. The court awarded $9,170.24 for fees and expenses to Ronald Welcker, interve-nor, an attorney who initially represented Ms. Pizani’s husband in this personal injury suit. Because Champion Offshore Boat Services, Inc. was never a named party in this action, we vacate the judgment as to that entity. However, as we find no other legal or manifest factual error in the district court proceeding, we affirm the remainder of the judgment.

The underlying facts are not disputed. On March 26, 1996, Sidney Fabre was injured aboard a vessel owned by his employer, Atlas Boats. He retained Ronald Welcker to represent him in the matter and signed a retainer agreement. That agreement tracked the language of La. R.S. 37:218, which provides that an attorney may by way of a contract acquire an interest in the subject matter of the client’s suit. It further provides that if the contract so states “any settlement, compromise, discontinuance or other disposition” of the suit made without the | .written consent of the attorney and the client is “null and void.” That language appears in the contract at issue here.

After some preliminary investigation and negotiations, Welcker filed suit against Atlas Boats on July 24, 1996. Within several weeks, Fabre terminated Welcker and retained instead Lawrence Blake Jones of the firm of Scheuermann and Jones. Welcker thereupon filed the contract with the clerk of court and also filed an intervention in the suit asserting his interest in its subject matter.

During the course of litigation Fabre died and Stacy Pizani, his wife, and his children were substituted as plaintiffs. By way of an amended petition Marathon Oil Company was added as a defendant. There does not appear any pleading in the record naming Champion Offshore Boat Services, Inc. as a defendant.

On April 3, 2000, a notice of a doctor’s deposition was filed into the record. By May 12, 2000, a compromise of the suit was reached as to the plaintiffs and Atlas, Marathon and Champion, and those claims were dismissed by those parties. This is the only mention of Champion made in the proceedings up to that time. Jones represented in the district court and repeats here that the settlement agreement obligated Pizani and her children to hold harmless and defend the settling defendants from any other claims which might be brought against them growing out of the suit or the settlement agreement. Jones testified that he received a legal fee of $76,000.

Welcker was not notified of the settlement and his intervention was not dismissed with the rest of the suit. In early 2003, Welcker discovered the compromise. He thereupon filed on April 3, 2003, an amended intervention naming as additional parties Lawrence Jones and Jones and Scheuermann. Apparently acting under the authority of the settlement agreement Jones answered and urged various exceptions to the amended petition on behalf not only of | ¿himself, his law firm and the original plaintiffs, but also on behalf of Atlas and Marathon. Again, no mention is made in these pleadings of Champion.

The various exceptions were denied and the matter proceeded to trial. Welcker Testified that he had performed approximately 25 hours of work on the case. He produced correspondence, doctors’ bills and reports dealing with the case, all of which corroborated this testimony. He also testified that he had advanced the client $4,170.24 for medical and living expenses, and produced a ledger sheet from his office records substantiating this claim. He further testified that he could not produce cancelled checks for these advances because his bank records had been seized by government investigators in an unrelated matter.

On this evidence the trial judge rendered judgment for $5,000.00 in legal fees and $4,170.24 in reimbursement for money advanced, with interest from the date of the settlement. All of the defendants in intervention now appeal.

The first error urged is that service of the supplemental petition of intervention was defective because it was not served on the Pizani family personally, but rather on Jones, who claims that he was by then no longer their attorney. We reject this argument for two reasons. First, the intervention portion of the suit was still pending when the supplemental pleading was filed, and Jones had never withdrawn as counsel of record for the Pizani family. Second, the supplemental petition only added additional parties to the suit and in no way added any new allegations or claims against the original plaintiffs.

The second argument is that the intervention had been abandoned as per La. Code Civ. Pro. Art 561, because Welcker had taken no action in its prosecution for over three years from its filing in 1996. This is a misreading of the above article. There is no requirement that every party to an action must initiate some legal step in the prosecution or defense of the case at least once in every three years, but only that at least one party has taken such action. Moreover, once the intervention was Isfiled there was nothing else for Welcker to do until plaintiffs claim was resolved. We finally note that the April 3, 2000, and the May 12, 2000, dismissal of the claims in the main demand constituted steps in the prosecution of the case, and Welcker’s supplemental petition was filed within three years of those actions. We thus reject this assignment of error as well.

The third issue is whether the in solido judgment against Marathon and Champion was proper. As shown above, Marathon was added as a party defendant after the intervention was filed and is not named in the supplemental intervention. The only mention of Champion in the proceedings on the main demand is as a party to be released in the motion to dismiss of May 12, 2000. It was never otherwise named as a defendant, did not file any pleadings and did not otherwise appear in any capacity in the suit. In this circumstance, it was clear error to cast it in judgment in the intervention action, and we set aside that portion of the judgment.

On the other hand, Marathon was made a party defendant in the main action and it answered the petition. Although it was never served with the original petition in intervention or named and served with the supplemental petition in intervention, the original petition was in the record of the case. Moreover, the contract with Welcker was filed with the clerk of court and thus became a public record sufficient to put all parties with an interest in the subject matter of the suit on notice that this claim existed. See Martin v. David, 95-1411 (La.App. 3rd Cir.7/31/96) 685 So.2d 158. Thus, when Marathon settled the main demand without taking into account the claim for legal fees, it did so to its own prejudice, and it was thus properly cast in judgment for these fees and costs.

Appellants’ final two arguments concern the adequacy of the evidence to support the judgment. We first note that the manifest error standard of review of factual findings in attorney fee disputes is the same as that for other cases. Gordon v. Levet, 94-279 (La.App. 5th Cir.9/27/94), 643 So.2d 371. Our inquiry is thus whether or not a reasonable trier of fact could have made the findings that the trial judge did, after considering the entirety of the evidence.

In the present case Welcker testified to the time he spent on the case, and he produced corroboration of this time in the form of various letters, medical reports, the original petition and the employment contract. While he did not nave contemporaneous time sheets, his estimation of the time spent on the case was nonetheless found to be credible by the trial judge. We find nothing manifestly erroneous or clearly wrong in the determinations as to the time spent and the value of that time at $200 per hour, and therefore affirm the award of fees.

Similarly Welcker testified that he advanced the client $4,170.24 for medical costs and living expenses. He supported this figure by production of his office ledger sheet for this account. He said that while he did not actually enter the figures in the ledger, he did review them frequently for accuracy and these figures were correct. Again, there is nothing implausible in his version of these advances and there was no evidence to cast doubt on these figures. We thus find nothing manifestly erroneous in these factual determinations and we therefore must affirm the reimbursement award as well.

For the foregoing reasons, the judgment against Champion Offshore Boat Services, Inc. is hereby vacated. In all other respects the judgment is affirmed.

JUDGMENT AGAINST CHAMPION OFFSHORE BOAT SERVICES, INC. VACATED. IN ALL OTHER RESPECTS, AFFIRMED.


author: 1 JAMES L. CANNELLA, Judge.

text:
    Dina GUIDRY v. FORD MOTOR COMPANY and Don Bohn Ford, Inc.
    No. 03-CA-1197.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Jacque R. Touzet, New Orleans, LA, for Appellant.
    Robert W. Maxwell, Joseph F. Clark, Jr., McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Covington, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   1 JAMES L. CANNELLA, Judge.

In an automobile redhibition case, Plaintiff, Dina Guidry, appeals from a judgment granting the peremptory exception of prescription of Defendant, Ford Motor Company (Ford). We affirm.

On May 23, 1998, Plaintiff leased a 1998 Ford Explorer from Don Bohn Ford, Inc. (Don Bohn) in Harvey, Louisiana for a term of three years. During the lease term, she returned the vehicle several times for repairs. The lease expired by its terms in July of 2001 and the mileage on the vehicle was 57,328. In November of 2001, Plaintiff filed a claim with the Ford Dispute Settlement Board, which was denied. On December 3, 2001, Plaintiff filed suit against Ford and Don Bohn. In December of 2002, Defendants filed peremptory exceptions of prescription and no cause of action, which were heard on January 30, 2003. On April 9, 2003, a judgment was rendered granting the exception of prescription and denying the exception of no cause of action.

On appeal, Plaintiff first contends that the trial judge erred in finding the claim prescribed under La.R.S.51:1944E, because the prescriptive provision relied on by the trial judge applies to sales, not leases. Second, she contends that the 13trial judge erred in disregarding that expiration of the bumper-to-bumper warranty based on mileage is a precarious practice, due to the unusual nature of this lease, because the car was still under warranty for other items. Third, Plaintiff contends that the trial judge erred in disregarding the practical effects of the requirement that the claim be first submitted to early dispute resolution prior to filing suit.

The Louisiana “lemon law” is set out in La.R.S. 51:1941 et seq. La.R.S. 51:1941(2) includes in its definition of consumer, “A person to whom a motor vehicle is leased. ” R.S. 51:1941(2)(c) [emphasis added.]

La. R.S. 51:1944 provides the replacement or refund as remedies for “a nonconformity” in a motor vehicle, as follows:

A. If a nonconformity in a motor home has not been repaired within the time periods provided for in R.S. 32:1943(A)(2), or if after four or more attempts within the express warranty term or during a period of one year following the date of the original delivery to the consumer of a motor vehicle which is not a motor home, whichever is the earlier, the nonconformity has not been repaired or if the vehicle is out of service by reason of repair for a cumulative total of ninety or more calendar days during the warranty period, the manufacturer shall:
(1) Replace the motor vehicle with a comparable new motor vehicle, or, at its option,
(2) Accept return of the motor vehicle and refund the full purchase price plus any amounts paid by the consumer at the point of sale, and all collateral costs less a reasonable allowance for use to the consumer, or any holder of a perfected security interest in the motor vehicle, as their interest may appear, if the transaction was a sale.
B. If the transaction is a lease, the provisions of Paragraph (1) of Subsection A of this Section are applicable or the manufacturer may, if the lessor is willing, accept return of the motor vehicle and reimburse the lessee for all reasonable expenditures in connection with the lease, and further satisfy all conditions of the lease in connection with early termination and related charges. The lessee shall be liable for a reasonable allowance for use of the vehicle prior to the return thereof.
|4C. A reasonable allowance for use shall be that amount directly attributable to use by the consumer prior to his first notice of nonconformity to the manufacturer, agent, or dealer and during any subsequent period when the vehicle is not out of service by reason of repair.

R.S. 51:1944 D provides that prior to filing suit, the consumer must first resort to the manufacturer’s informal dispute settlement procedure, if one has been established, which substantially complies with the provisions of Title 16, Code of Federal Regulations, Part 703. According to Section E, “The consumer shall have no more than three years from the date he purchased the motor vehicle or until one year from the end of the warranty period, whichever is longer, in which to file suit against the manufacturer to force compliance with the provisions of this Section.” [Emphasis added.]

R.S. 51:1944B sets out the remedies allowed to be recovered for a defect when the consumer has a leased vehicle. The first remedy is the same as in Section A(l), replacement of a vehicle that is not repaired after four or more attempts within the express warranty term, or within one year following the date of the original delivery to the consumer. Section B also states that the manufacturer has the option, if the lessor is willing, to accept return of the vehicle, reimburse the lessee for all reasonable expenditures in connection with the lease, and satisfy all early termination conditions of the lease and related charges. In that case, the lessee shall be liable for a reasonable allowance for use of the vehicle prior to its return.

Clearly, both remedies provided in R.S. 51:1944 contemplate that an action against the manufacturer will be taken within the lease term, since the statute does not provide any remedy for a consumer after the lease term expires. Thus, it follows that a claim under the informal dispute resolution proceeding (R.S. 51:1944D) must also be made within the term of the lease in order for a plaintiff to obtain the benefits of the statute. Although Plaintiff argues that this conclusion is |,.¡impractical, neither this Court nor the trial judge can ignore the clear language or intent of the statute. Consequently, we find that the trial judge did not err in this regard.

We further find that the time limitations in R.S. 51:1944E for bringing an action applies to leases as well as to sales. R.S. 51:1944 sets out the remedies for both sale and lease claims. As defined in R.S. 51:1941(2)(c), a consumer includes a lessee. Regardless of the first part of the time limitation sentence (three years from the date of purchase), the second part, one year from the end of the warranty period, applies to a lease when, as here, Plaintiff had a new car warranty on the vehicle. Thus, we conclude that the legislature intended the time limitations to apply to both leases and sales.

Plaintiff also argues that the time for bringing suit under R.S. 51:1944E should not commence until after a decision is received in the informal dispute resolution. In this case, that would have been four months after the lease terminated by its own terms.

Defendant asserts that the time limitation is preemptive, rather than prescriptive. We need not decide that issue here because, even if it is prescriptive and can be interrupted or suspended, it can only be suspended or interrupted if the consumer files the dispute resolution claim with the manufacturer within the statutory period (three years from date of the purchase or lease, or one year from the end of the warranty period, whichever is longer). In this case, Plaintiff did not file her claim with Ford’s settlement board until four months after the lease ended by its own terms, and the vehicle had been returned to the dealer. At that point, under R.S. 51:1944A and B, Plaintiff no longer had a remedy, since she no longer has a right to a replacement vehicle and she cannot return it to the manufacturer for an early termination of the lease. Thus, we find that the trial judge did not err in rejecting this argument.

Plaintiff also contends that the trial judge erred in relying on the bumper-to-bumper warranty, because some of the mileage was incurred driving back and forth to the dealer from Alexandria, Louisiana (a distance of 190 miles each way). However, R.S. 5L1944E unequivocally states that the consumer has no more than three years from the date that he purchased the motor vehicle or until one year from the end of the warranty period, whichever is longer. Although the vehicle’s mileage in this case may have included long trips back and forth from the dealer, the statute neither excludes from the warranty any mileage for travel to and from the dealer for repair, nor does it leave any room for that interpretation. Thus, we find that the trial judge did not err in failing to credit mileage related to her trips from Alexandria in conjunction with the warranty period.

Plaintiff next argues that warranties other than the bumper-to-bumper warranty relied on by the trial judge were in effect and had to expire prior to the commencement of the time limitation for filing suit. We disagree. R.S. 51:1941 et seq. indicates that the legislature intended the applicable warranty period to be the one related to the defect(s) at issue. Thus, we find that the trial judge did not err in rejecting this argument.

In light of these findings, we conclude that Plaintiff had three years from the date she leased the vehicle, or one year from the end of the warranty period, whichever is longer, in which to file suit against Defendants. Since the warranty expired after 36,000 miles, before the expiration of the three-year lease term, Plaintiff had three years from the date that she leased the Explorer, May 23, 2001, to file suit. Plaintiff filed suit on December 3, 2001, six months too late. Thus, the trial judge did not err in finding that the action had prescribed.

Accordingly, the judgment granting the peremptory exception of prescription is hereby affirmed. Costs of appeal are to be paid by Plaintiff.

AFFIRMED.

      . The petition does not specify the types of repairs.

      . R.S. 51:1941(7) defines “a nonconformity” as a defect, malfunction or condition which substantially impairs the use and/or market value of a motor vehicle.