author: BROWN, C.J. hMOORE, J.,

text:
    William A. RAY, et al., Plaintiffs-Appellants, v. CITY OF BOSSIER CITY, et al., Defendants-Appellees.
    No. 37,708-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2003.

      Walker, Tooke & Lyons by Henry C. Walker, H. Clay Walker, Shreveport, for Appellant.
    Cook, Yancey King & Galloway by Kenneth Mascagni, Shreveport, Robert Kennedy, Colfax, for Appellee.
    Before BROWN, C.J., PEATROSS, DREW and MOORE, JJ., and TRAYLOR, J. Pro Tern.
   BROWN, C.J.

The trial court granted defendants’ motions for summary judgment and summarily dismissed plaintiffs’ claims. For the following reasons, we affirm in part and reverse in part.

Factual and Procedural Background

On March 22, 2001, William A. Ray and Thomas M. Patten filed suit against the City of Bossier City, Danny R. Dison, James D. Hall, David Jones, and Michael Halphen (collectively referred herein as “the City”), claiming that they were constructively discharged from their jobs as Bossier City Police Officers in retaliation for engaging in protected activity.

On October 23, 2002, all defendants filed motions for summary judgment, which were scheduled for a hearing on November 14, 2002; plaintiffs’ attorney was not served until October 28, 2002. Under La. C.C.P. art. 966 and applicable Louisiana State District Court Rules 9.9(d) and 9.10(c), plaintiffs were required to have served counter affidavits on opposing counsel no later than four days before the hearing (November 10 was a Sunday and the 11th was Veterans’ Day, a legal holiday). Defendants had attached 41 exhibits (affidavits, depositions, statements, and documents) in support of their motions.

On November 12, plaintiffs filed a “Motion for Extension to Respond to Defendant’s Summary Judgment Motions.” This motion to extend was balso set for argument on November 14. On that date, the trial court made the following ruling:

... I would allow you [plaintiffs] to file a written response, but would not allow you to file any counter-affidavits. In other words, I’d take the position that I would just decide the case on what has already been offered into evidence, or affidavits, or depositions that are contained in the record, ... I would merely allow you a brief period of time to — to write a response in the form of a memo, but not in the response — not—but not to allow you to offer any additional affidavits
[WJhen I say affidavits, any additional evidence.
(Emphasis added).

On November 22, 2002, plaintiffs filed an opposition brief and attached 15 exhibits, claiming that these exhibits, which primarily were excerpts from depositions, had all been produced in discovery. On December 10, 2002, the trial court granted defendants’ motion to strike all of plaintiffs’ exhibits. Plaintiffs claim never to have been notified of this ruling. On February 3, 2003, the trial court granted defendants’ motions for summary judgment and dismissed all of plaintiffs’ claims. Plaintiffs appealed.

The 15 exhibits stricken by the trial court are not in the record. Therefore, plaintiffs attached 13 exhibits to their original appellate brief. The City moved in this court to strike these exhibits and the portions of the brief which refer to them. Claiming to have never received notice of the interlocutory ruling by the trial court striking their exhibits, plaintiffs moved for a stay of the proceedings to seek supervisory review of the trial court’s granting of the City’s original motion to strike. This court denied both the City’s motion to strike and plaintiffs’ motion for stay.

| ^Discussion

At the time in question, Danny R. Dison was the Chief of the Bossier City Police Department, James D. Hall was the City Attorney for Bossier City, David Jones was a member of the City Council for Bossier City, and Michael Halphen was the Public Information Officer for the Bossier City Police Department.

Plaintiffs contend that Dison, Hall, Hal-phen, and Jones all conspired to terminate their employment in retaliation for statements plaintiffs had made concerning Hal-phen and Jones driving while under the influence of alcohol. Plaintiffs contend that after Jones filed a harassment claim against them, an Internal Affairs (“IA”) investigation ensued and thereafter, Chief Dison coerced Patten to resign and Ray to retire. Ray and Patten now claim that they were constructively discharged.

The City claims that plaintiffs solicited other officers to make a stop or arrest of Halphen and Jones “on the basis of created probable cause or suspicion.” The city correctly contends that such solicitation is an abuse of police power and is not a constitutionally protected activity.

Standard of Review for Summary Judgment

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together |4with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.07/07/99), 739 So.2d 191. After adequate discovery or after a ease is set for trial, a motion which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(1).

The mover may point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff who must demonstrate that he has evidence which if believed would support the essential elements of his claim. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.09/08/99), 744 So.2d 606. Mere speculation is not sufficient. Babin v. Winn-Dixie La. Inc., 00-0078 (La.06/30/00), 764 So.2d 37. Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.02/29/00), 755 So.2d 226; Belt v. Wheeler, 36,585 (La.App.2d Cir.12/18/02), 833 So.2d 1256; McEachern v. Mills, 36,156 (La.App.2d Cir.08/16/02), 826 So.2d 1176. Thus, the appellate court asks the same questions the trial court asked in determining whether summary judgment was appropriate. Magnon, supra.

| Appellate Evidentiary Record

We must first address the trial court’s rejection of exhibits submitted by plaintiffs in opposition to the summary judgment motions.

As previously noted, the trial court allowed an extension of time for plaintiffs to submit an opposition memorandum. The trial court, however, specifically denied plaintiffs’ motion for an extension of time to submit “counter affidavits.” The trial court stated that it would consider depositions already submitted by defendants.

All of the exhibits submitted with plaintiffs’ memorandum to the trial court were gathered during discovery and included excerpts from depositions given by plaintiffs and defendants. The request for an extension was clearly considered a motion for a continuance by the trial court. At the November 14 hearing, the trial court stated to plaintiffs’ counsel:

The Court: ... I think you filed a request for a continuance, didn’t you? Mr. Walker: Yes, your Honor.
The Court: And I converted the request for a continuance ... you asked for an ex parte continuance and I had hand-written in that I would convert that to a Rule to Show Cause....

Under the provisions of La. C.C.P. art. 1601, a continuance may be granted in any case if there is good ground therefor. The trial court has great discretion in granting or denying a motion for a continuance under this provision; that discretion will not be disturbed on appeal in the absence of a clear abuse of discretion. Demopulos v. Jackson, 33,560 (La.App.2d Cir.06/21/00), 765 So.2d 480. Whether a trial court should grant or deny a continuance depends on the particular facts of each case. Some factors to | ^consider are diligence, good faith, and reasonable grounds. Id. Fairness to both parties and the need for orderly administration of justice are proper considerations in deciding whether to grant or deny a continuance. Gilcrease v. Bacarisse, 26,318 (La.App.2d Cir.12/07/94), 647 So.2d 1219, writ denied, 95-0421 (La.03/30/95), 651 So.2d 845.

Under the circumstances of this case, we find that the trial court abused its discretion in not granting a continuance to allow plaintiffs a reasonable time to file counter affidavits, depositions, and other documents.

In the instant case, although defendants have an important interest in having this case resolved, there is no indication that the continuance was sought for purposes of delaying resolution of this matter. The summary judgment motions were served on plaintiffs’ attorney on October 28 with a hearing date to be 17 days later, on November 14. Under the procedural rules, plaintiffs had only 13 days to file counter affidavits and other evidence to show that genuine questions of material fact existed. On November 12, plaintiffs formally asked the trial court for an extension/continuance.

Although the lawsuit had been pending almost a year and a half, it was not until September 12, 2002, that the IA investigation report was ordered to be produced to plaintiffs. In brief, defendants recognize that this IA report is essential to the resolution of this lawsuit. Thereafter, in a letter dated October 1, 2002, plaintiffs’ counsel requested from defendants’ attorney a date to take the deposition of Gerald Huddleston, an officer prominently mentioned in the IA report. The only response to this request [7was the filing of the motions for summary judgment. We further note that defendants supported their summary judgment motions with the IA report which included transcriptions of all the statements taken during that investigation.

Eight of plaintiffs’ thirteen exhibits filed in this court are excerpts from depositions; out of the eight depositions, only three of the people deposed were not of parties to this action. These three depositions included only short excerpts of testimony from John Cox, John Jeter, and Alyssa Marlowe. Cox’s deposition merely alluded to the allegation that Mike Halphen “liked to party” and offered speculation about rumors of him drinking alcohol and then driving. John Jeter’s deposition simply referred to the unrelated misconduct of another police officer and the lack of disciplinary action being taken against that officer. Alyssa Marlowe’s deposition discussed an allegation that Halphen had bought her a beer on one occasion, at which time she was under 21 years of age. As to these three exhibits, we agree with defendants’ brief “that (they) are, in fact, immaterial to a resolution of the legal questions presented by this case.” The rest of plaintiffs’ exhibits included a copy of the Internal Affairs report, which was also included within defendants’ exhibits, two letters written by counsel for plaintiffs to the defense counsel, the trial court’s written reasons for judgment, and the judgment itself.

The remaining five exhibits submitted by plaintiffs were excerpts from the depositions of the parties to this action. Complete statements from these parties had been submitted by defendants as part of the IA report. 1 ¡Additionally, defendants had submitted different excerpts from these same depositions in support of their motions for summary judgment.

Under these circumstances, the trial court clearly abused its discretion in denying the motion. Thus, because we review summary judgment rulings de novo, we will order that the trial court record be supplemented by plaintiffs’ exhibits filed in this court.

Constructive Discharge, Freedom of Expression, and Louisiana Whistleblower Act

Ray and Patten contend that their respective resignation and retirement were not voluntary, but coerced. Therefore, they argue they were “constructively discharged” in retaliation for engaging in protected acts. We will discuss plaintiffs’ constructive discharge, freedom of expression, and Louisiana “Whistleblower” claims.

To recover damages for constructive discharge, a plaintiff must prove that the employer intended to and deliberately created such intolerable working conditions that the employee was forced into involuntary resignation. (Emphasis added). Robinson v. Healthworks International, L.L.C., 36,802 (La.App.2d Cir.01/29/03), 837 So.2d 714, writ denied, 03-0965 (La.05/16/03), 843 So.2d 1120; Plummer v. Marriott Corp., 94-2025 (La.App. 4th Cir.04/26/95), 654 So.2d 843, writ denied, 95-1321 (La.09/15/95), 660 So.2d 460. Further, the trier-of-fact must find that the conditions were so severe that a reasonable person in the employee’s shoes would have felt compelled to resign. Id. The burden is on the employee to prove constructive discharge. Plummer, supra; Boze v. Branstetter, 912 F.2d 801 (5th Cir.1990).

Under Louisiana’s “Whistleblower Statute,” an employer may not retaliate against its employees who advise an employer of violations of law. La. R.S. 23:967. This whistleblower statute provides:

A. An employer shall not take reprisal against an employee who in good faith, and after advising employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
* * *
C. For the purposes of this Section, the following terms shall have the definitions ascribed below:
(1) “Reprisal” includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section; however, nothing in this Section shall prohibit an employer from enforcing an established employment policy, procedure, or practice or exempt an employee from compliance with such. (Emphasis added).

The whistleblower statute does not define “employer;” however, the term “employer” was precisely defined by Louisiana Employment Discrimination Law to require receipt of services by the employee in exchange for compensation to him. La. R.S. 23:302(2); Langley v. Pinkerton’s Inc., 220 F.Supp.2d 575 (M.D.La.09/04/02). Specifically, “employer” is defined as “a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. ” La. R.S 23:302(2). (Emphasis 1 inadded). Courts have interpreted Section 23:302(2)’s definition of “employer” to apply in cases where employment status is at issue. Jackson v. Xavier University of Louisiana, 2002 WL 1482756 (E.D.La.2002), citing Jones v. JCC Holding Co., 2001 WL 537001 (E.D.La.2001).

In determining whether an employment relationship exists in other contexts, jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision over an individual. Savoie v. Fireman’s Fund Ins. Co., 347 So.2d 188 (La.1977); Cassey v. Stewart, 31,437 (La.App.2d Cir.01/20/99), 727 So.2d 655, writ denied, 99-0811 (La.04/30/99), 743 So.2d 209; Fuller v. U.S. Aircraft Ins. Group, 530 So.2d 1282 (La.App. 2d Cir.1988), writ denied, 534 So.2d 444 (La.1988), cert. denied, 490 U.S. 1046, 109 S.Ct. 1954, 104 L.Ed.2d 424 (1989).

An employee of a public entity may not be discharged for exercising his First Amendment right to freedom of expression despite an at-will employment status. Cabrol v. Town of Youngsville, 106 F.3d 101 (5th Cir.1997); Thompson v. City of Starkville, Miss., 901 F.2d 456 (5th Cir.1990); Brawner v. City of Richardson, Tex., 855 F.2d 187 (5th Cir.1988); see also La. R.S. 42:1169. In order to prevail in a claim of retaliation, one must show that his speech was constitutionally protected, i.e., that it involved a matter of public concern; that his interest in commenting on the matters of public concern outweighs the public employer’s interest in promoting efficiency; and that his speech was a motivating or substantial factor in the termination decision. (Emphasis added). Cabrol, supra; Thompson, supra.

Inin light of jurisprudence and La. R.S. 23:302(2)’s definition of “employer,” we agree with the trial court’s finding that Halphen (as a Public Information Officer), Hall (as a city attorney), and Jones (as a Bossier City councilman) were not Ray and Patten’s employers. Halphen, Hall, and Jones provided neither compensation nor benefits to plaintiffs. See Onyeanusi v. Times-Picayune Publishing Corp., 485 So.2d 622 (La.App. 4th Cir.1986). These three defendants had neither power of control nor power of dismissal over Ray or Patten. See Cassey, supra. Jones complained that plaintiffs were harassing him and the IA investigation ensued; Halphen provided the IA investigation with information concerning plaintiffs; and Hall gave Chief Dison a legal opinion that Ray and Patten should be fired. However, Jones, Halphen, and Hall had no control over the IA investigation or over any employee within the Bossier City Police Department. The record contains nothing to show that these parties did anything other than exercise their freedom of expression.

Unlike the other three defendants, Chief Dison and Bossier City clearly had the right of control and supervision over Ray and Patten. In exchange for the services received, Bossier City provided compensation to these officers. See La. R.S. 23:302(2). Chief Dison had the power to employ or terminate them from the Bossier City Police Department. See Savoie, supra; Cassey supra. For these reasons, Chief Dison and Bossier City were Ray and Patten’s “employer.”

Plaintiffs were given an ultimatum and a minimum period of time to decide. Whether theirs was a “voluntary” decision is a genuine question of'[12fact to be decided after evaluation of all the evidence. While it appears to have been a free choice made by Ray and Patten, there was also no real alternative. Plaintiffs claim “they were told that the decision to terminate had been made” prior to Chief Dison offering the choice. The motivation and intent of the parties are questions of credibility which should not be determined summarily.

According to Chief Dison’s affidavit, his decision to provide plaintiffs with the option to voluntarily separate from the police department or be fired was made as a result of the IA investigation. The IA report includes a transcript of an interview by Captain Sproles of Officer Larry Hawkins, who stated that Ray approached him to set up Halphen for a DWI arrest. In this interview, Hawkins claimed that Ray told him that he would be able to “pretty well write (his) ticket to any place (he) wanted to go” within the Bossier City Police Department if Hawkins would arrange for Halphen’s DWI arrest. Hawkins also stated that Ray informed him that Chief Dison was worried that Halphen would become the next police chief “unless somebody did something about it, and that getting arrested for DWI would keep him from becoming our next chief.” Hawkins claimed that he was told to make up a story to legally justify a stop. Ray has specifically denied making such a statement to Hawkins.

The disclosure of misbehavior by public officials is a matter of public interest and, therefore, deserves constitutional protection. Thomas v. Harris County, 784 F.2d 648 (5th Cir.1986). The reporting of misconduct within a police department is speech addressing a matter of public concern. Brawner, supra. Even if the speech is not widely publicized, we find this to be the case. See Harrison v. Parker, 31,844 (La.App.2d Cir.05/05/99), 737 So.2d 160, writ denied, 99-1597 (La.09/17/99), 747 So.2d 565, in which this court found that a sheriffs department employee’s reports of allegedly illegal or unethical conduct within the sheriffs office, namely using inmates to do personal work for or on behalf of deputy sheriffs, dealt with matters of public importance for purposes of the employee’s wrongful discharge claim, alleging that he was retaliated against for exercising his First Amendment rights.

It is usually not a function of the trial court on a motion for summary judgment to weigh conflicting evidence of material fact; additionally, a motion for summary judgment is usually not appropriate for disposition of cases requiring judicial determination of subjective facts, such as motive, intent, good faith, or knowledge. La. C.C.P. art. 966; Harrison, supra.

Hawkins’ interview evokes questions regarding the events preceding the adverse employment action. These questions go to the credibility of Ray, Patten, and Officer Hawkins. Credibility of witnesses is a determination for a fact-finder to make. Reasonable minds could differ as to the import of the evidence in this case and particularly whether plaintiffs’ complaints within the police department concerning Jones and Halphen were merely talk or an attempt to set up Jones and Halphen for a false DWI arrest. Such a decision requires credibility determinations and a weighing of the evidence. While the trial court correctly dismissed the freedom of expression claim against Hall, Halphen, and Jones, who were not plaintiffs’ [ 14employer and who simply expressed their opinion about plaintiffs, there are genuine issues of material fact pertaining to the remaining defendants. This view is further supported by Captain Sproles’ report. Captain Sproles concluded,

“I can find no evidence or testimony to show that Patten used this information to actually ‘set up’ on Jones or Huckaby. I cannot find where any officer followed, watched, or asked anyone from another agency to stop Jones ... (or) where anyone from the Bossier City Police Department inquired into any information regarding Jones.”

As to Halphen, Captain Sproles found that “there is also the question as to the alleged targeting of PIO Mike Halphen.” Captain Sproles stated that this allegation surfaced when Halphen received information (about a set up) from an unidentified source which Captain Sproles could not “give total reliability to.” Captain Sproles did not conclude that a criminal act had not been proven and recognized that credibility decisions had to be made.

The trial court erred in granting summary judgment in favor of Chief Dison and Bossier City on the issues of constructive discharge, freedom of expression, and the whistleblower statute. We emphasize that this court expresses no credibility opinion on these issues.

Equal Protection

Citing Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), Ray and Patten claim that although they are not in a protected class, “they have been subjected to class-of-one equal protection discrimination” because of differential treatment.

Our research reveals that Louisiana jurisprudence does not recognize an equal protection claim in the context of only a single member, or a classjof15-one plaintiff. Nonetheless, a plaintiff has the right to pursue a federal claim in a state court. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977 (La.02/29/00), 758 So.2d 116. Although a federal claim in the context of a single member class is recognized, a plaintiff must show that he has been intentionally singled out and treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Village of Willowbrook, supra.

Plaintiffs have failed to produce any support that they can make the requisite showing that others who were similarly situated within the police department were treated differently than they were. Plaintiffs offered only Officer Jeter’s deposition statement that another officer offered a cigarette to a juvenile, had a domestic quarrel, and was not disciplined. The trial court correctly granted summary judgment in favor of all of the defendants with regard to the equal protection claim.

Defamation

Ray and Patten have asserted a separate claim against Jones for defamation. They claim that Jones made three public defamatory statements against them after they filed this lawsuit.

One of the alleged defamatory statements made by Jones was made on March 23, 2001; he was quoted in The Times as referring to plaintiffs as “two rogue cops caught breaking the law.” Jones was also quoted in Bossier Press Tribune on March 26, 2001, as stating, “[W]hat you have here are vigilante rogue cops hunting people down. It doesn’t get any dirtier |1fithan that.” Finally, during an interview with a local television news reporter, Jones stated:

“Leadership is a contact sport. It’s garbage like this that keeps people from participating in public service. These officers have a hard time following departmental procedure and also have trouble telling the truth.”

The reference to Ray and Patten as “garbage” would be considered an exaggeration, or a hyperbole, as no one would literally consider them to be refuse. Likewise, references to plaintiffs as “rogue cops” could not reasonably be interpreted as stating an actual fact. These statements are merely the expressed subjective opinions of Jones. While such comments are likely upsetting to the subjects to which they refer, the United States Supreme Court has stated that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). We find that Jones was not attempting to assert objective facts about Ray and Patten; instead, he was stating his own personal comments about the two men. Therefore, Jones’ speech was constitutionally protected.

The First Amendment freedoms afford, at the very least, a defense against defamation actions for expressions of opinion. Fitzgerald v. Tucker, 98-2313 (La.06/29/99), 737 So.2d 706; Mashburn v. Collin, 355 So.2d 879 (La.1977). A pure statement of opinion, which is based totally on the speaker’s subjective view and which does not expressly state or imply the existence of underlying facts, usually will not be actionable in defamation. Bussie v. Lowenthal, 535 So.2d 378 (La.1988). That is because falsity is an indispensable element of any defamation claim, and a purely subjective statement can be neither true nor false. Id. The opinion may be ostensibly in the form of a factual statement if it is clear from the context that the speaker did not intend to assert another objective fact but only his personal comment on the facts which he had stated. (Emphasis added). Mashburn, supra. Another form of protected speech is hyperbole, which cannot reasonably be interpreted as stating actual fact. Greenbelt Cooperative Publishing, Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); Baxter v. Scott, 37,092 (La.App.2d Cir.05/16/03), 847 So.2d 225.

A cause of action for defamation arises out of a violation of La. C.C. art. 2315. Fitzgerald, supra. Defamation involves the invasion of a person’s interest in his or her reputation and good name. Id., Sassone v. Elder, 92-1856 (La.1993), 626 So.2d 345. In order to prevail in a defamation action, a plaintiff must prove four elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Fitzgerald, supra; Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552; see also Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196 (La.1980).

However, when a public figure is the object of alleged defamatory words, the United States Supreme Court has held that the First Amendment limits the right of the public figure to recover damages for defamation. In New York Times Co., supra, the Supreme Court concluded that it is not |1Renough for the public figure to prove that the statement sued upon is false. Because the First Amendment protects honest misstatements of fact that are made regarding public figures, such plaintiffs must also prove that the statement was made with “actual malice.”

A communication which contains an element of personal disgrace, dishonesty, or disrepute undoubtedly satisfies the definition of defamatory. Fitzgerald, supra; Trentecosta, supra. Nonetheless, not all defamatory statements are actionable. Rather, many statements are protected by the First Amendment’s guarantee of freedom of speech. Id. Specifically, a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection. Romero v. Thomson Newspapers (Wisconsin), Inc., 94-1105 (La.01/17/95), 648 So.2d 866, cert. denied, 515 U.S. 1131, 155 S.Ct. 2556, 132 L.Ed.2d 810 (1995); Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Speech on matters of public concern enjoys enhanced constitutional protection. Id.; Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985); Baxter, supra.

Plaintiffs urge that Jones’ critical comments about them constituted actual malice because the statements were not based on any truthful foundation. In support of this assertion, they note that the conclusion reached by the IA investigation report was that “there was not a criminal violation.”

|19Actual malice means that the defendant made the statement with knowledge that it was false, or with reckless disregard for the truth. New York Times Co., supra. To establish reckless disregard, the plaintiff must show that the false publication was made with a high degree of awareness of its probable falsity or that the defendant entertained serious doubts as to the truth of the publications. St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Actual malice is not shown merely by evidence of ill will or “malice” in the ordinary sense of the word; nor is it to be inferred from evidence of personal spite, an intent to injure, or a bad motive. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Tarpley v. Colfax Chronicle, 94-2919 (La.02/17/95), 650 So.2d 738.

We note that the IA investigation confirmed that Ray and Patten were involved to some degree with discussing stopping Jones and Halphen if they were driving under the influence of alcohol. Jones was aware of this |j,nunfavorable information concerning Ray and Patten. We acknowledge that there had been an antagonistic relationship between plaintiffs, as officers of the Bossier City Police Union and Jones, as a City Councilman. However, ill will alone is insufficient to establish that there was actual malice. See Harte-Hanks Communications, Inc., supra; Tarpley, supra. Based upon the information that the IA report revealed and based upon what Jones had been told, there is absolutely no evidence to show that Jones felt that the statements he made were not true. Considering the fact that Jones was aware of the results of the IA investigation, which he had kindled to begin with, he had a truthful foundation upon which to base his comments. Ray and Patten have failed to make any showing of actual malice on the part of Jones. The trial court correctly granted summary judgment in favor of Jones regarding plaintiffs’ defamation claim.

Exhaustion of Civil Service Remedies

Citing La. Const. Art. X, § 12, the City urges that Ray and Patten failed to exhaust state civil service review; therefore, it argues that plaintiffs waived their right to challenge the voluntariness of their respective resignation and retirement. We note that after Ray retired and Patten resigned, Ray demanded a hearing before the Bossier City Municipal Fire and Police Civil Service Board (“the Board”). He argued that he was constructively discharged from the police department. The Board rejected l^his complaint. Patten never sought any type of civil service review. While Ray could have appealed the Board’s decision, he did not. Instead, he and Patten filed the instant action with the district court.

La. Const. Art. X, §§ 1-15, or “Part I,” pertains to state and city civil service employees other than police officers. La. Const. Art. X, §§ 16-20, or “Part II,” governs the police and fire civil service. Section 19 provides, in pertinent part:

Nothing in Part I of this Article authorizing cities or other political subdivisions ... shall authorize the inclusion in a city civil service system of fireman and policeman in any municipality having a population greater than thirteen thousand but fewer than four hundred thousand and operating a regularly paid fire and municipal police department ... Such fireman and policeman are expressly excluded from any such system.

Further, Louisiana’s Whistleblower Statute, La. R.S. 23:967, provides in part:

B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.

We are dealing with constitutionally protected activities. Therefore, we find that the State Civil Service Commission does not have exclusive jurisdiction and plaintiffs need not have first exhausted their claims before the Board prior to filing suit in district court. We also note that the proper procedural vehicle to raise the issue of failure to exhaust administrative remedies would have been via an exception of prematurity pursuant to La. C.C.P. art. 926 A(l). However, defendants failed to employ such procedure. | ^Therefore, the City’s claim regarding Ray and Patten’s failure to exhaust administrative remedies is without merit.

Conclusion

For the foregoing reasons, we AFFIRM the trial court’s grant of summary judgment in favor of Michael Halphen, James Hall, and David Jones. We affirm the grant of summary judgment as to all defendants on the equal protection claim; however, we REVERSE the trial court’s grant of summary judgment in favor of Chief Dison and the City of Bossier City on the other claims. Judgment of the trial court is AFFIRMED IN PART AND REVERSED IN PART. Costs are assessed equally between plaintiffs and the City of Bossier City.

PEATROSS, J., concurs.

MOORE, J., dissents with written reasons.

DREW, J., dissents.

hMOORE, J.,

dissenting.

I concur in the majority opinion insofar as it affirms the summary judgments in favor of James D. Hall, Michael Halphen, and David Jones. I also concur in the majority’s dismissal of the plaintiffs’ claims under the “Whistleblower” statute, La. R.S. 23:967, as well as their claims of equal protection violations, La. Const. Art. 1, § 3.

I respectfully dissent, however, from the reversal of the remainder of the summary judgment. Upon de novo review, I find no genuine issue of material fact to support the claims that the City of Bossier City and Daniel Dison violated the plaintiffs’ freedom of expression or constructively discharged them. I also find that the plaintiffs failed to exhaust their civil service remedies. I would affirm the summary judgments in toto.

As a procedural matter, majority’s expansive treatment of the appellate record is plainly wrong. A mere two days before the scheduled hearing on the motions for summary judgment, the plaintiffs filed a “Motion for Extension to Respond to Defendants’ Summary Judgment Motions.” In my view, the district court properly denied this motion as untimely under La. C.C.P. art. 966 and Rule 9.9(b), URDC. However, because of various factors to which the majority alludes, the district court gave plaintiffs’ counsel an additional eight days (until November 22, 2002) to file an opposition memorandum but specified that no counter-affidavits would be admitted. When counsel filed their memorandum on November 22, they attached 15 additional exhibits. Many of these were depositions not already |¡.in the record by attachments to timely motions. On the defendants’ motion, the district court struck these attachments.

Considering that the suit had been pending for 18 months, some 18 depositions had been taken, and the motion for summary judgment had been filed nearly a month before November 22, I would find that the district court did not abuse its discretion in striking these attachments.

In order to circumvent this clearly appropriate exercise of the district court’s discretionary power, the majority revises the plaintiffs’ motion for extension of time as a motion for continuance, but the plaintiffs never filed any such motion. The majority further posits that granting a continuance would have worked no hardship on the defense. While that may be a reasonable assumption, this court should not supply motions that were never filed and arguments that were never raised, or substitute its own reasons for an evidentia-ry ruling in place of those of the district court. In short, the district court did not err in its handling of the motion for externsion of time or in striking the 15 attachments that were filed belatedly.

Without these additional attachments, the summary judgment evidence properly before the court negates any genuine issue of material fact as to all the plaintiffs’ claims. In support of their motion for summary judgment, the City and Chief Dison attached an Internal Affairs report prepared by Capt. Glen Sproles. The defendants also attached excerpts from the depositions of the plaintiffs, Chief Dison and Councilman Jones. This report, with its attachments, clearly shows that the plaintiffs’ separations from the Bossier Police Department were voluntary; that the plaintiffs were[3found to be in violation the department’s code of conduct; that they had grossly abused police power; and that they were given the opportunity either to resign or face severe and public disciplinary action. The fact that their options were unpleasant does not alter the fact that they resigned and that under the circumstances this was a voluntary decision on their part.

In my view, the City and Chief Dison successfully showed an absence of factual support for an essential element of the plaintiffs’ claims. La. C.C.P. art. 966 C(2). The burden therefore shifted to the plaintiffs to produce some factual support sufficient to establish that they would be able to meet their burden of proof at trial. Harris v. Eckerd Corp., 35,135 (La.App. 2 Cir. 09/26/01), 796 So.2d 719. In my view, the plaintiffs utterly failed to meet this burden of production.

The majority hypothesizes that on a trial of the matter, the plaintiffs might be able to offer some evidence to contradict the findings of the Internal Affairs report, or that a jury might find the report to be unreliable. However, mere speculation that a jury might disbelieve the mover’s witnesses is not sufficient grounds to defeat a properly supported motion. Babin v. Winn-Dixie La., 00-0078 (La.06/30/00), 764 So.2d 37; Allen v. State Farm Fire & Casualty Co., 36,377 (La.App. 2 Cir. 09/18/02), 828 So.2d 190, writ denied, 02-2577 (La.12/19/02), 833 So.2d 343. To reach a different conclusion from the district court requires us to indulge in mere speculation. Finally, a plaintiff may not rely on his own delinquency in conducting discovery as a basis for denying a properly supported motion for |4summary judgment. Demopulos v. Jackson, 33,560 (La.App. 2 Cir. 06/21/00), 765 So.2d 480, at fn. 4, and citations therein.

In short, the defendants’ motions for summary judgment are fully and meticulously supported. They completely negate any genuine issues of material fact and expose the plaintiffs’ claims for the specious allegations they are. I would affirm the summary judgments in toto, and I respectfully dissent from the majority’s failure to do so.

      . Patten claimed that he was forced to resign and Ray was forced to take early retirement.

      . Note, in addition to requesting service, ap-pellees’ counsel certified that he mailed a copy of all motions to plaintiffs’ attorney on October 23.

      .Dison retired and Halphen is currently the Chief of the Bossier City Police Department.

      . Ray and Patten together asserted a claim for alleged violations of their right to procedural due process under La. Const., Art. I, § 2. The trial court dismissed the due process claim, and neither Ray nor Patten raised this issue on appeal.

      . In his appellate brief, Jones states that the following information was revealed by the IA investigation:
      (1) Union members were disgruntled over the absence of a $600 per month pay increase, and were angry with Jones.
      (2) During the political turmoil over the police pay increase, Patten asked police officers where Jones "hung out.”
      (3) During this same period of time, Patten discussed Jones with John Lewis at an IHOP restaurant. Patten indicated to Lewis that the best way to handle Jones would be to get another law enforcement agency, such as the State Police, to stop Jones for DWI.
      (4) Patten again discussed this same scenario with Lewis in the police department parking lot.
      (5) At a union gathering, Patten spoke openly with others about "stopping (Jones) for drinking.” In that gathering, there was discussion about where city council members lived and where Jones went to drink.
      (6) Patten discussed stopping Jones on at least five occasions.
      (7) Patten admitted that Ray gave him a note identifying Halphen's personal vehicle and that Ray told him when and where Halphen would be on a certain night.
      (8) Ray contacted another police officer, Larty Hawkins, and advised him that Hawkins "would do well for himself” if he arrested Mike Halphen for DWI. Ray informed Hawkins when and where Halphen would be located, as well as a story to justify the stop; i.e., that Hawkins had been flagged down by someone in a Cadillac who allegedly had seen Halphen driving drunk.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    La’Kisha Jean CARTER, Plaintiff-Appellee, v. SAFEWAY INSURANCE COMPANY, Defendant-Appellant.
    No. 37,788-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2003.

      Tracy L. Oakley, Ruston, for Appellant.
    Louis G. Scott, for Appellee.
    Before STEWART, PEATROSS and TRAYLOR (Pro Tempore), JJ.
   STEWART, J.

Safeway Insurance Company (“Safeway”) appeals the judgment of the Monroe City Court in favor of La’Kisha Jean Carter awarding her $2,000.00 in general damages for the total loss of her vehicle and $850.00 in attorney’s fees. For the reasons set forth below, we affirm the judgment of the trial court.

FACTS

Carter purchased a 1991 Lincoln Town Car on March 19, 2001, from Dan’s Auto Sales in Monroe, Louisiana, and insured it under a policy issued by Safeway. Approximately three months later, in the late hours of June 23, 2001, or the early morning hours of June 24, 2001, the vehicle was stolen from the driveway at her apartment. The burned remains of the car were located by the Monroe Police Department on June 25, 2001.

Carter filed suit against Safeway on April 5, 2002, seeking damages for the total loss of her vehicle and alleging that she should be awarded penalties and attorney’s fees for Safeway’s failure to timely pay her claim. In answer, Safeway asserted a general denial of all the factual allegations in Carter’s petition. On November 4, 2002, Safeway filed an amending and supplemental answer denying coverage under their policy on the basis of sub-paragraph (o) of the exclusions contained in the section entitled “Part IV — Physical Damage.” This exclusion provides that coverage under the policy does not apply:

(o) to loss due to theft under coverage (A) of this part if evidence exists that forcible entry was not required to gain access to the automobile.

|gThe matter came for trial on January 8, 2003. Carter testified that on the evening of June 23, 2001, she returned from a friend’s home and parked the vehicle in question in her driveway, with all the windows closed and the doors locked. She then went into her apartment with the only set of keys to the automobile in her possession. When she awoke the next morning the vehicle was gone. She then called the police who came out to make a report. She testified that there was no broken glass in the vicinity of where the vehicle had been parked and that she had no knowledge of how the perpetrators had gained access to the vehicle. However, Carter did admit that when she purchased the vehicle the driver’s side window was “off the track” and could be pushed down. She further admitted that this defect had not been repaired at the time the vehicle was stolen. Carter testified that she reported the loss to Safeway the same day that the vehicle was located by the police and that a representative of Safeway took her statement at her home. Safeway has never tendered payment for the loss of the vehicle.

Officer Michael Calloway of the Monroe Police Department responded to the call on the morning of June 27, 2001. He testified that he had filled out a report and inspected the area where the car had allegedly been parked. He stated that he found no evidence of broken glass and had no knowledge of how access had been gained to the vehicle. He admitted that after the vehicle was found he had not inspected it so as to be able to determine whether there was any evidence that would suggest the method used to gain access to the vehicle.

13As to the value of the vehicle, the court heard testimony from three separate witnesses. Carter testified that she had purchased the car for $2,000.00 just three months prior to its loss. She testified that since purchasing it she had made improvements to the vehicle by replacing the old starter with a new one and buying new tires. She was unsure as to the mileage on the vehicle but indicated that she believed it to have more than 100,000 miles on it despite the indication on the “Bill of Sale” that it only had 43,128 miles on it.

Edward C. Bolden, an automobile body technician, was qualified as plaintiffs expert for the purpose of testifying as to the value of the vehicle. He testified that in estimating the value of the 1991 Lincoln Town Car, he used a 2000 National Automobile Dealer’s Association (NADA) book. Because the book did not list the value for a Lincoln Town Car prior to the 1993 model, Bolden took the loan value for the 1993 model of $5,450.00 and subtracted two years of estimated depreciation totaling $2,500.00. The loan value used assumed that the vehicle had moderate mileage, which Bolden testified to be anywhere from 12,000 to 14,000 miles per year. Bol-den testified that he then added some value back into the car on the basis of the new tires and starter which Carter had added to the vehicle and arrived at a value between $3,500.00 and $3,700.00 for the vehicle.

Lastly, the court heard from Dan Freeman, the owner and operator of Dan’s Auto Sales from whom Carter had purchased the vehicle. Freeman confirmed that he had sold the vehicle for $2,000.00, but he could not remember any specifics about the vehicle other than its white exterior color |4and its red leather interior. He testified that while he did not know the mileage on the vehicle, he believed the 43,128 miles reflected on the bill of sale to be inaccurate since he would not have sold the car for $2,000.00 if the mileage had been that low.

At the conclusion of the trial, the judge allowed the parties to file post-trial memo-randa and took the matter under advisement. On March 6, 2003, the trial court rendered and signed a judgment in favor of Carter awarding her $2,000.00 in damages and $850.00 attorney’s fees. The instant appeal followed. In three assignments of error, Safeway challenges the trial court’s finding of coverage under the policy and the awards of damages and attorney’s fees.

DISCUSSION

Assignment of Error Number 1

In its first assignment of error, Safeway argues that the trial court was manifestly erroneous in finding coverage under the policy because there is “ample evidence that forcible entry was not required to gain access to the automobile.” This assignment is without merit.

In reviewing the record in its entirety, we find no evidence, ample or otherwise, which indicates that forcible entry was not required to gain access to the automobile. Carter testified that when she parked the vehicle for the evening all the doors were locked and all the windows were closed. It is not reasonable to conclude that forcible entry was not required to gain access to the vehicle simply because of the lack of glass in the area where the vehicle had been parked or the officer’s failure to find any other vindication of forcible entry. The only inference that can be drawn from this testimony is that entry was gained in such a manner that left no visible evidence in the area where the car had been parked. Officer Calloway even admitted that he had never examined the vehicle. Thus, we cannot conclude from his testimony that forcible entry was not required to gain access to the vehicle.

Safeway also points to the indisputable evidence that the driver’s side window was off its track. While the record confirms this assertion, we find this factor to be unremarkable. There was uncontradicted testimony that while the window was off its track it was also closed at the time that the theft occurred. While the defect in the window may have made it easier for the perpetrator to force open the window (assuming that is how the theft occurred), the fact remains that the perpetrator would have had to force the defective window down to gain access to the vehicle. We likewise find Carter’s admitted failure to inform Officer Calloway of the defective window to be unexceptional. Safeway does not indicate what salient inference it believes can be made from this oversight, and we make none ourselves.

After reviewing the entirety of the record, we find there is simply no evidence as to how the perpetrators gained access to the vehicle. The policy language clearly provides that the exclusion is applicable only if “evidence exists” that no “forcible entry was required to gain access to the vehicle.” Safeway has not identified any such evidence. The lack of evidence regarding the method of entry does not mean that no forcible entry was | firequired. Where liability coverage is provided to a particular insured and the insurer relies on a policy exclusion to defeat that coverage, the burden is on the insurer to plead and prove the exclusion. Bumgardner v. Terra Nova Ins. Co. Ltd., 35,615 (La.App.2d Cir.1/23/02), 806 So.2d 945. Safeway failed to meet its burden. Accordingly, we find no error in the trial court’s determination that the loss suffered by Carter was covered under the policy.

Assignment of Error Number 2

In its second assignment of error, Safeway asserts that the trial court erred in awarding $2,000.00 for Carter’s property damage based on its conclusion that the trial court assessed a $2,000.00 value to the vehicle but failed to subtract the $500.00 deductible from the award. On the record before us, we cannot conclude that the trial court’s judgment reflects any such error or that the trial court abused its discretion in determining the damage award.

The trier of fact is given great discretion in determining damage awards. The record must clearly show that the factfinder abused its discretion in making an award, before the award may be disturbed. Brown v. Williams, 36,863 (La.App.2d Cir.7/31/03), 850 So.2d 1116. An appellate court’s function is not to determine whether a different damage award may have been more appropriate, but whether the trial court’s award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trial court. Jackson v. A.L. & W. Moore Trucking, 609 So.2d 1064 (La.App. 2d Cir.1992).

17Safeway argues that the award of $2,000.00 indicates that the trial court disregarded the testimony of Bolden, who set the value of the vehicle at $3,500.00 to $3,700.00, and accepted the testimony of Freeman, who placed the value of the vehicle at the price he sold it to Carter, $2,000.00. Accordingly, Safeway argues that the award of $2,000.00 fails to take into account the $500.00 deductible. We first note that Safeway’s argument relies on a broad assumption as to how the trial court arrived at the damage award. Because the trial court did not give oral or written reasons for its ruling, Safeway’s assumptions cannot be verified. We note that Safeway could have requested that the trial court issue written findings of fact and reasons for judgment under La. C.C.P. art.1917, but did not do so.

Nevertheless, Safeway’s argument lacks merit in that its assumptions are not the only justifiable inferences that the trial court could have drawn from the record, nor are they the justifiable inferences most favorable to the plaintiff. Bolden testified that his estimate of the blue book value of a 1991 Lincoln Town Car was $2,900.00. This figure was arrived at by taking the value of a 1993 Lincoln Town Car in fair condition ($5,450.00) out of the 2000 NADA handbook and then subtracting from it two years of depreciation estimated to be approximately $2,500.00 (or $1,250.00 per year). He then added some value back into the vehicle on the basis that it had brand new tires and a new starter to arrive at a value of $3,500.00 to $3,700.00. Therefore, he added $600.00 to $800.00 in value to the vehicle for improvements. On cross examination he admitted that perhaps he should have calculated an additional year of depreciation on the vehicle ^because he had used a 2000 NADA handbook to assess a value to a vehicle whose loss occurred in 2001. Assuming the trial court took this approach and subtracted another year’s depreciation ($1,250.00), the value of the vehicle per Bolden’s testimony would have been between $2,250.00 and $2,450.00. Given both Bolden’s and Freeman’s testimony as to the fact that the valuation of a used vehicle is not an exact science, we find no abuse of the trial court’s discretion in setting the damage award at $2,000.00.

We also note that the trial court could have accepted Dan Freeman’s testimony as to the value of the car being $2,000.00, the consideration he received when he sold the car to Carter three months prior to its loss. However, Freeman’s testimony clearly referred to the value of the car as he sold it. While Freeman was not asked how his valuation would be affected by Carter’s replacement of the tires and the starter, he did indicate that the worth of such a vehicle is largely dependent on its condition. Therefore, the trial court could have reasonably concluded that the value of the 1991 Lincoln Town Car was higher after Carter improved its condition by replacing the tires and starter. Since Bol-den had valued these improvements at anywhere between $600.00 and $800.00, the trial court would not have abused its discretion under this scenario in assessing the value of the car at $2,500.00, thus justifying an after-deductible damage award of $2,000.00. Accordingly, we find no error in the trial court’s award of $2,000.00 for the property damage suffered by Carter.

1 ^Assignment of Error Number 3

In its third and last assignment of error, Safeway complains that the trial court erred in awarding Carter $850.00 in attorney’s fees on the basis that its denial of coverage was made in good faith and that Carter had not presented satisfactory proof of loss. We find this assignment of error to be without merit.

While the trial court’s judgment does not state the statutory basis for the award of attorney’s fees, the record indicates that the award was made under the provisions of La. R.S. 22:658 which provides in pertinent part as follows:

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658(A)(1), or within thirty days after written agreement or settlement as provided in R.S. 22:658(A)(2) when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

110Safeway’s claim that Carter failed to provide satisfactory proof of loss as required under La. R.S. 22:658 is disingenuous. The purpose of the “proof of loss” prerequisite for making such a claim is to make certain that an insurer has adequate knowledge of the loss suffered by the insured such that the insurer can properly adjust the claim. There are no formal requirements for the manner in which “proof of loss” is to be made and the manner in which the insured obtains the information is immaterial. Hershell Corp. v. Fireman’s Fund Ins. Co., 98-1352 (La.App. 3d Cir.6/2/99), 743 So.2d 698.

Carter testified that she informed Safeway of the loss the same day that the vehicle was discovered. In response, Safeway sent a representative to take a statement from Carter regarding her claim. The description of the make, model and year of the vehicle in the policy, plus the testimony that Safeway had taken pictures of the vehicle when the policy was issued, gave it sufficient evidence to make some form of adjustment for the total loss of the vehicle. Furthermore, the record is clear that Safeway has from the outset relied on the exclusion regarding “forcible entry” as the basis for not making a payment on the claim. It rings somewhat insincere to argue at this stage that payment was not made because of Carter’s failure to present satisfactory proof of loss.

We also decline to reverse the trial court on the basis of Safeway’s assertion that its failure to make payment within 30 days was not arbitrary and capricious. Safeway argues that it should not be penalized for relying on the coverage exclusion under the suspicious circumstances of the pres-entíase. Our review of the record, however, does not suggest any such suspicious circumstances. As discussed above, there is no evidence that forcible entry was not required to gain access to the vehicle. Nor is there any evidence that Carter had anything to do with the disappearance or the burning of the vehicle. While Safeway may be inclined to approach stolen vehicle cases with suspicion, the law recognizes no such prejudice. Safeway presented no evidence on which one could base a good faith belief that the cited exclusion was applicable, nor did it present any evidence that Carter was in any manner involved in the destruction of her vehicle. Absent any such evidence, we find no error in the trial court’s award of attorney’s fees for Safeway’s failure to make payment to Carter within 30 days of receiving satisfactory proof of loss.

CONCLUSION

For the reasons set forth above, we affirm the judgment of the trial court finding coverage for the property damage suffered by Carter, awarding her $2,000.00 in damages and $850.00 in attorney’s fees. The costs of this appeal are assessed to Safeway.

AFFIRMED.

      . During the 2003 Regular Session, the Louisiana Legislature passed Act No. 790 on June 27, 2003. This Act in part amends and reenacts R.S. 22:658(A)(4) and (B)(1). With regard to (B)(1), the Act increases the insurer penalty and deletes the provision for payment of attorney fees.


author: MOORE, J. | t STEWART, J.,

text:
    Pierre SMITH, Plaintiff-Appellant, v. AAA TRAVEL AGENCY, et al, Defendant-Appellee.
    No. 37,728-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2003.

      The Singleton Law Firm, by W. James Singleton, Shreveport, Curtis R. Joseph, Jr., for Appellant.
    Cook, Yancey, King & Galloway, by Sidney E. Cook, Jr., R.D. Evans, Jr., for Appellee AAA Travel Agency.
    Voorhies & Labbe’, by Cyd Sheree Page, Monroe, for Appellee Bayou Plaza & Associates.
    Lunn, Irion, Salley, Carlisle & Gardner, by Walter S. Salley, Shreveport, Gregory S. Barkley, for Intervenor TIG Insurance Company.
    Before STEWART, GASKINS and MOORE, JJ.
   MOORE, J.

Pierre Smith appeals a summary judgment in favor of two defendants, AAA Travel Agency (“AAA”) and Bayou Plaza & Associates, dismissing his claims for personal injuries and other damages arising from an aggravated assault on AAA’s premises. For the reasons expressed, we affirm.

Procedural Background

The assault occurred after working hours on the evening of May 24, 2000 at AAA. AAA is located at 6570 Youree Drive in Shreveport, in a small strip mall called Bayou Plaza, owned by Bayou Plaza & Associates LLC (“Bayou Plaza”). It is located directly north of the larger and older Bayou Walk Shopping Center.

Smith worked as a night custodian for a janitorial provider. He recalled reporting to AAA sometime after 7 p.m. to clean up, using a key to enter the front door. He testified that his usual practice was to walk to the back of the office and deactivate the burglar alarm, but because of his injuries he did not remember whether he actually did so on May 24. An unknown person or persons apparently followed Smith into the office and inflicted a very severe beating. Smith was left unconscious in the bathroom, tied up with telephone cords. He woke up in the hospital with severe injuries to his head, face and upper body. The police ascribed the incident to an attempted robbery; the assailants have never been caught.

pin April 2001, Smith filed the instant suit for personal injuries and other damages. He named as defendants AAA and Bayou Plaza, the owners of the business and shopping center, as well as American Security and Mid-South Alarms, the manufacturer and installer of the security system. Smith alleged that the defendants knew or should have known that “the entire city of Shreveport * * * was a high crime area on May 24, 2000.” TIG Insurance, Smith’s employer’s compensation carrier, intervened to recover compensation benefits, which by August 2001 had exceeded $96,000. After discovery, Smith voluntarily dismissed Mid-South Alarms with prejudice. American Security later obtained a summary judgment which Smith did not appeal.

AAA moved for summary judgment in August 2002, urging that with no prior burglaries or assaults on its premises, it owed no duty to protect Smith from the criminal acts of unknown third parties. Posecai v. Wal-Mart Stores Inc., 99-1222 (La.11/30/99), 752 So.2d 762.

Smith opposed the motion, offering the affidavit of David Kent, a New Orleans-based expert on crime risk assessment. Kent’s affidavit stated that he had analyzed crime data and statistics of crimes reported at Bayou Walk Shopping Center and within a one-mile radius of Bayou Walk. He asserted that AAA’s alarm system was insufficient; “enhanced security alarm and/or video monitoring capability” would have deterred Smith’s attackers. He also noted that if Bayou Walk Shopping Center had hired a mobile security contractor or in-house security staff, there was a “high probability” the offense could have been averted. By memorandum, Smith | ¡¡argued that the crime statistics showed 431 crimes within the one-mile radius, including 10 business burglaries, four aggravated batteries, one robbery, and 80 miscellaneous crimes that occurred on Bayou Walk’s premises. The district court denied summary judgment.

AAA and Bayou Plaza then took Kent’s deposition, in which he admitted that he had analyzed only the crime data furnished to him by counsel; however, the industry standard did not approve of using a one-mile radius, and Kent never analyzed the crime rate in Bayou Plaza’s police district. He admitted that after visiting Shreveport for the first time and examining Bayou Plaza and its environs, he found no indicia that it was in a “high crime area.” He testified that crime reports from Bayou Walk were relevant, as it is contiguous to Bayou Plaza, but conceded that prior to the assault on Smith, he saw nothing even remotely resembling this crime in the area. He admitted that the security systems he had suggested in deposition would not have guaranteed any more safety for Smith, and he declined to say that Bayou Plaza should have employed mobile security or in-house security. His conclusion was he would have to study the situation more.

AAA and Bayou Plaza filed the instant motions for summary judgment in December 2002, attaching Kent’s deposition. They argued that because crime had been so infrequent on their premises, under Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270, they had no duty to hire live guards or install more sophisticated security devices.

DSmith opposed the motion. He offered no expert affidavits or depositions, but argued that Kent’s deposition testimony created a genuine issue of material fact regarding the “existence, frequency and similarity of prior incidents on the premises,” an element of the claim according to Pinsonneault. He also cited the Tennessee jurisprudence which the supreme court had approved in Posecai.

The district court granted the motions, noting that in deposition, Kent “backtracked off the affidavit” and declined to say the defendants owed better security. The court further noted that Smith presented no further evidence to show that he could meet his burden of proof. The court rendered judgment dismissing Smith’s claims. Smith has appealed.

Applicable Law

Louisiana applies a duty-risk analysis to determine whether liability exists under the particular facts presented. The plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of the protection afforded by the duty breached. Posecai v. Wal-Mart Stores, supra at 4, 752 So.2d at 765; Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173. The threshold issue is, of course, the existence of a duty. Posecai, supra, and citations therein.

While business owners generally have no duty to protect others from the criminal acts of third persons, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those 1 Sacts are foreseeable. Id. Determining when a crime is foreseeable is the critical inquiry. Id.; Pinsonneault, supra at 7, 816 So.2d at 276. The supreme court has adopted a balancing test:

The foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and the extent of the defendant’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.
The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises. Posecai, supra at 8-9, 752 So.2d at 768.

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(1).

The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. After the burden has shifted, the plaintiff must make a positive showing of evidence creating a genuine issue as to an essential element of its claim. Mere speculation is not sufficient. Babin v. Winn-Dixie La. Inc., 2000-0078 (La.6/30/00), 764 So.2d 37. Appellate review of summary judgments is de novo. Ross v. Conoco Inc., 2002-0299 (La.10/15/02), 828 So.2d 546.

Whether a duty is owed is a question of law. Peterson v. Gibraltar Sav. & Loan, 98-1601 (La.5/18/99), 733 So.2d 1198. The existence of a duty to provide security is therefore suitable for summary judgment disposition. Bezet v. Original Library Joe’s Inc., 2001-1586 (La.App. 1 Cir. 11/8/02), 838 So.2d 796; Marmer v. Queen of New Orleans at the Hilton, 2000-1598 (La.App. 4 Cir. 5/16/01), 787 So.2d 1115.

17Discussion

By one assignment of error, Smith urges the district court erred in granting summary judgments in favor of AAA and Bayou Plaza. Smith argues that he made an adequate showing to create a genuine issue of material fact as to the duty element under Pinsonneault, supra. Because Bayou Plaza lies adjacent to Bayou Walk, with no physical barrier between them, he contends that crime statistics from Bayou Walk may satisfy the element of “location, nature and condition” of the defendants’ property. Citing Mr. Kent’s abstract of criminal statistics, he asserts that between 1997 and 2000, Bayou Walk was the site of five aggravated batteries, as well as five auto thefts, 15 business thefts, one robbery of a person, one business robbery, one purse snatching, 42 shoplifting crimes, 26 general thefts, one weapons crime, and 19 drug offenses. He further contends that the defendants made no effort to analyze their crime risk and thus remained “willfully ignorant in an effort to preclude their liability.” Smith concludes that from these facts, a jury could well find that the defendants owed a duty to protect him from aggravated assault by unknown burglars.

The defendants argue that only one crime, a business burglary, had been reported in Bayou Plaza since its construction. With no predatory or similar offenses on the premises, they contend Smith cannot make a showing of foreseeability as required by Posecai and Pinsonneault, supra. They also contend that after visiting Bayou Plaza and the surrounding area, Mr. Kent withdrew his earlier recommendation that an enhanced security system would have deterred the incident and that live, on-site security would have detected it.

The record supports Kent’s opinion that the larger Bayou Walk Shopping Center is contiguous to Bayou Plaza; although the buildings stand separate, the parking lot appears as continuous pavement and the space between the properties is uninterrupted. We therefore accept Kent’s thesis that significant criminal activity on Bayou Walk’s premises may contribute to a finding that similar crimes are foreseeable on Bayou Plaza.

Beyond this, however, Kent’s testimony offers little support for the finding of a duty under Posecai, supra. He conceded that there was only one crime reported on Bayou Plaza’s premises prior to this incident. As for Bayou Walk, the crimes listed on the police printouts were more than just service calls, since each had been “classified and coded,” but Kent had no idea how many of them resulted in investigations or arrests. He conceded that from the printouts he could not “discern * * * anything remotely like this[.]” He said he would need to investigate the prior reports of aggravated battery and robbery, but admitted these would probably be of little help as he suspected the assault on Smith was an “inside job” by a “disgruntled employee.”

The data regarding crimes within the one-mile radius supplied by counsel were even less helpful. Kent testified that the crime protection industry viewed the one-mile area as too large. He preferred to look at statistics from “the same zone, grid, call section, beat” to discern crime trends, but admitted he had not done so. He was impressed that within walking dis-tancs of Bayou Plaza, he found “expensive, single-family 19residences,” a church and a school, not the “disabled vehicles, a lot of hardware and bars and grates, * * * alcoholic beverage outlets, the 24-hour convenience facilities” that would indicate a “more densely crime-impacted area.” These observations undermine any showing of “other factors, such as the location, nature and condition of the property” that would make this type of crime foreseeable in Bayou Plaza. Posecai, supra. The likelihood and gravity of harm on the defendants’ premises after working hours remained slight.

In addition, Mr. Kent plainly backed away from his earlier opinion that the defendants should have installed an enhanced security system, and frankly admitted that without a more in-depth assessment, he would not now recommend the use of on-site security guards.

The instant record is less compelling than the trial evidence in Posecai, supra. The parking lot of Sam’s Wholesale Club in Kenner had been the scene of three predatory offenses over the preceding 6/6 years, and an expert testified that the area around the store was “heavily crime impacted.” Nonetheless, the supreme court found that the armed robbery of Mrs. Po-secai before dusk on a summer evening was not foreseeable.

In other cases, patrons or employees have presented minimal evidence of random crime on the premises or in the area. Balancing the foreseeability of harm against the burden of imposing a duty to protect against the intentional criminal acts of third parties, courts have declined to find intentional attacks foreseeable. Marmer v. Queen of New Orleans, supra; Thompson v. Winn-Dixie Louisiana Inc., 2001-1259 (La.App. 4 Cir. 3/6/02), 812 So.2d 829, writ denied, 2002-0971 (La.5/21/02), 817 So.2d 104; Bonds v. Abbeville Gen’l Hosp., 00-1462 (La.App. 3 Cir. 4/4/01), 782 So.2d 1188.

The summary judgment evidence simply does not show that the intentional attack on Smith was foreseeable under the balancing test of Posecai and Pinsonneault, supra. The defendants showed the lack of factual support for this essential element of Smith’s claim, thus shifting to Smith the burden to present evidence supporting a genuine issue of material fact. La. C.C.P. art. 966 C(2). Smith failed to meet this burden. The district court did not err in granting the summary judgments.

Conclusion

For the reasons expressed, the summary judgments are affirmed. Appellate costs are assessed against the plaintiff, Pierre Smith, and the intervenor, TIG Insurance Company.

AFFIRMED.

| t STEWART, J.,

dissenting.

I respectfully dissent from the majority opinion affirming the dismissal of Smith’s claims for personal injuries and damages on summary judgment. While the existence of a duty owed by AAA to provide security under the circumstances of this case is a question of law that may be decided on summary judgment, I do not agree that summary judgment was appropriate in this instance. Both Posecai v. Wal-Mart Stores Inc., 99-1222 (La.11/30/99), 752 So.2d 762 and Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270, involved crimes by third parties against patrons of the businesses. The duty analyzed was that owed by a business to protect its customers from the criminal acts of third parties. Smith was not a customer. Rather, he was a night custodian who provided janitorial services for AAA. His job required him to report to AAA after hours and to disable the security system. These distinguishing facts require a more thorough analysis of what duty is owed by a business to its employees or contractors whose work duties are performed after hours.

      . Records from the alarm company, American Security, showed that no one had breached the perimeter, but that someone (presumably Smith) entered at 9:03 p.m. and used the correct access code to turn off the system.

        . The plaintiff's expert in Posecai was David Kent, the same expert retained by Smith in the instant case.


author: GASKINS, J.

text:
    Kim Travis FLETCHER, Plaintiff-Appellee, v. Dawn R. SIMMONS, et al., Defendants-Appellants.
    No. 37,758-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 2003.

      Cotton, Bolton, Hoychick & Doughty, by John B. Hoychick, Ruston, for Louisiana Farm Bureau Casualty Insurance Co.
    Tracy L. Oakley, Ruston, for Dawn R. Simmons and Safeway Insurance Company of Louisiana.
    Chester A. Bradley, III and Associates, by Chester A. Bradley, III, Monroe, for Kim Travis Fletcher.
    Before STEWART, GASKINS and MOORE, JJ.
   GASKINS, J.

Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”) appeals from a judgment in favor of plaintiff Kim Fletcher. The issue presented in this auto accident case is whether the trial court’s general damage award of $18,000.00 was excessive. For the following reasons, we amend and affirm.

FACTS

On December 26, 1998, Kim Fletcher, age 27, was riding as a passenger in her mother’s 1991 Ford Ranger pickup truck on Louisiana Highway 139 in Ouachita Parish. The truck was driven by Jeremy Nolan, Ms. Fletcher’s boyfriend. A 1984 Oldsmobile driven by Dawn Simmons was going west when it struck the right front of the northbound Fletcher vehicle. Photos of the Fletcher vehicle show moderate damage to the right front bumper and surrounding area; they also demonstrate that the collision broke off a part of the vehicle’s suspension, rendering it undrivea-ble. The vehicle was later declared a total loss.

Ms. Fletcher sued Ms. Simmons and Ms. Simmons’ liability insurer, Safeway Insurance Company (“Safeway”), as well as the UM insurer of her mother’s truck, Farm Bureau. Farm Bureau later made a cross-claim against Ms. Simmons and Safeway for the damage to the vehicle. The parties stipulated to Ms. Simmons’ liability leaving only the issue of damages for trial.

Ms. Fletcher had no symptoms of pain or restriction of movement immediately after the accident, but that night she began to experience soreness between her neck and shoulder blades. She did not seek medical |2attention at that time because the truck, her only means of transportation, was undriveable due to the accident.

On December 30, Ms. Fletcher went to the emergency room at St. Francis Medical Center. The ER physician ordered an x-ray and prescribed pain medicine and muscle relaxants. The x-ray was negative.

Ms. Fletcher continued to have neck and shoulder pain. On January 4, 1999, she went to Dr. Clyde Elliott, a general family practitioner recommended by her attorney. Dr. Elliott observed that Ms. Fletcher had pain in her neck but had full range of motion. He diagnosed her with musculo-skeletal strain. Dr. Elliott gave her anti-inflammatory and pain medications and a muscle relaxant. However, he did not order physical therapy.

Ms. Fletcher was employed as a substitute “on call” mail carrier for the post office in West Monroe, and her job required her to drive to deliver the mail. She said that the more she drove, the more pain she experienced due to the twisting and turning required. She returned to Dr. Elliott on January 11, 1999. Dr. Elliott again found that she had a normal range of motion in her neck but that she still had some tenderness upon palpation between her shoulder blades. The doctor reduced Ms. Fletcher’s medication but did not order physical therapy.

Ms. Fletcher continued to have neck and shoulder pain and saw Dr. Elliott again on January 22,1999. His findings at this visit were similar to those in the earlier visits. The doctor maintained her current medication. He said that he advised Ms. Fletcher to return in two weeks, but she denied |3this. She testified that the doctor told her that she had a strained muscle and that it would just take time for it to heal. Consequently, she felt like it would heal on its own and there was no point in seeing the doctor again. Dr. Elliott described Ms. Fletcher’s problem as a moderate cervical strain injury and said that he would have expected it to heal in six to eight weeks. He never prescribed physical therapy for Ms. Fletcher, but said that he would have done so if she still had complaints of pain at her next visit.

Ms. Fletcher said that she continued to have pain in her neck and shoulders when she was driving and delivering the mail, particularly when she had to twist and turn to get mail from the back of the mail truck. However, none of the doctors instructed her not to work; she missed only one day of work due to the injury. She also said that the pain restricted her ability to play with her two sons, who were 10 and 12 years old at the time of trial. She said that she used to be able to play sports, either on her own or with the older child, or video games with the younger child for long periods, but since her injury she can do so only in pain. She further said that she used to be able to work in her father’s approximately four-acre produce garden for extra income; however, she could not do so in the spring of 1999 although she apparently did in subsequent years. She was able to drive routinely between Monroe and Lake Providence to her father’s home. Her live-in boyfriend testified that he took on some of Ms. Fletcher’s household chores like mopping because she was unable to do them due to her pain.

After her last visit with Dr. Elliott, Ms. Fletcher took the remaining pain and anti-inflammatory medicine until it was gone. She self-treated by |4using a heating pad on the affected area and also took hot baths and hot showers with a massaging showerhead. However, her pain persisted, and on June 10,1999, she went to Dr. John Ward, an orthopedic surgeon recommended by her lawyer. On the patient medical history form, she indicated that she had joint pain, joint stiffness, muscle pain or cramps and back pain. Dr. Ward diagnosed her with a strained muscle but wanted her to have an MRI of her cervical spine. Ms. Fletcher scheduled an appointment to have an MRI, but was unable to make the appointment because she was called into work. The appointment was never rescheduled. Dr. Ward testified at trial that “when somebody has persistent complaints as Ms. Fletcher has, alter six months following the injury, you always have to worry that there is some other process underlying the symptoms.... ”

Dr. Ward also recommended physical therapy for Ms. Fletcher, but she did not attend any therapy. She testified that her job prohibited her from doing so. She opined that her job was the best she could obtain due to her lack of education, but the part-time on-call nature of the job was a factor that prevented her from obtaining therapy for her injury. Dr. Ward indicated that it would be speculation to suppose that physical therapy would have resolved Ms. Fletcher’s problem. Regarding Ms. Fletcher’s prognosis for recovery circa 1999, Dr. Ward testified that he had seen “some people that recover in two months and I’ve seen some people that it can take up to a couple of years.” Dr. Ward disagreed with defense counsel’s assertion that Ms. Fletcher failed to follow medical treatment that could have resolved | ¡jier condition. Ms. Fletcher did not seek medical treatment after her visit with Dr. Ward and testified at trial that she did not like doctors.

At the 2002 trial of this matter, Ms. Fletcher said that her pain persisted and that it continued to limit her ability to do the things she normally did such as play with her sons. Ms. Fletcher related that she continued to take over-the-counter pain relievers and to use the heating pad or take hot showers to get relief. Her boyfriend testified that there remained a “big difference” in the sports activities she was able to engage in with her children.

After taking the case under advisement, the court issued verbal reasons for judgment. The court stated that it found Ms. Fletcher and her boyfriend to be “very credible witnesses” and that Ms. Fletcher gave a good explanation of why she did not receive significant follow-up treatment after the accident. The court then adopted as its own reasons the plaintiffs’ post-trial brief and attachments. Based on these reasons, the court awarded Ms. Fletcher $18,000.00 in general damages against all defendants, in addition to her medical expenses of $1,130.30 and expert witness fees. The court also awarded $2,646.50 to Farm Bureau on the vehicle damage claim.

Farm Bureau now appeals. Ms. Simmons and Safeway satisfied their portion of the judgment and chose to not file a brief.

DISCUSSION

Farm Bureau urges on appeal that the trial court awarded an excessive amount of damages and that the plaintiff failed to mitigate her damages. |f,Under the circumstances, we believe it appropriate to consider both matters together.

An injured plaintiff has the duty to take reasonable steps to mitigate his damages. Aisole v. Dean, 574 So.2d 1248 (La.1991). However, the burden rests on the tort-feasor to show that the injured plaintiff failed to mitigate his damages. The defendant must show (1) that the plaintiffs conduct after the injury was unreasonable and (2) that the unreasonable conduct had the consequence of aggravating the harm. Hunt v. Long, 33,395 (La.App.2d Cir.6/21/00), 763 So.2d 811; Etheredge v. St. Paul Mercury Insurance Company, 35,832 (La.App.2d Cir.4/3/02), 814 So.2d 119. See Evans v. Regional Transit Authority, 2001-1355 (La.App. 4th Cir.7/10/02), 823 So.2d 438.

Before the trial court’s damage award may be disturbed, the record must clearly show that the factfinder abused its broad discretion in making the award. Jackson v. A.L. & W. Moore Trucking, 609 So.2d 1064 (La.App. 2d Cir.1992); Hollo way v. Midland Risk Insurance Company, 36,262 (La.App.2d Cir.10/30/02), 832 So.2d 1004, writ denied, 2002-3247 (La.3/28/03), 840 So.2d 571. The finding of an abuse of much discretion must be based on the particular injuries sustained and their effect on the particular injured person. After a determination that an award is an abuse of discretion, the appellate court may lower an excessive award to the highest amount or raise an inadequate award to the lowest point reasonably within the factfinder’s discretion. Holloway, supra.

17Although the discretion afforded the trial court in assessing damages is great, it is not unbridled, and we are convinced from this record that the trial court abused its discretion in awarding $18,000.00 in general damages to Ms. Fletcher. There was no testimony showing that Ms. Fletcher needed treatment at or medical transportation from the accident scene. She suffered the most pain in the several days following the accident, but was thereafter able to resume her normal activities with some limitations. She had a total of only four doctor visits. Neither of the doctors she saw recommended surgery, and no future surgery was contemplated. Likewise, she missed only a single day of work due to her injury.

Although Ms. Fletcher complained of continuing pain at the time of the 2002 trial, her last visit to a doctor was in the summer of 1999. Ms. Fletcher has been managing her pain herself with over-the-counter pain medicines and has not sought the recommended physical therapy. As in Marcum v. Johnston, 32,634 (La.App.2d Cir.1/26/00), 750 So.2d 1186, 1190, this is a factor indicative of the severity of her injury. However, we find insufficient evidence on this record to establish that Ms. Fletcher failed to mitigate her damages. The unrebutted testimony of Dr. Ward shows that Ms. Fletcher’s failure to have an MRI and to have physical therapy were unknown factors in the duration of her problems.

Given the nature of Ms. Fletcher’s work and her testimony that her work involves a great deal of twisting that aggravates her pain, we believe that an award of $12,000.00 is the highest reasonable general damage award. This is a greater sum than awarded in some similar cases, but is appropriate for this plaintiff given her job and the continuing residual effect of the injury. Compare Marcum, supra; Minkler v. Chumley, 32,558 (La.App.2d Cir.12/8/99), 747 So.2d 720, and cases cited therein; Manuel v. State Farm Mutual Automobile Company, 30,765 (La.App.2d Cir.8/19/98), 717 So.2d 277 and cases cited therein.

CONCLUSION

For the reasons cited above, the judgment of the trial court is amended to award Ms. Fletcher $12,000.00 in general damages; in all other respects, the judgment is affirmed. Costs of this appeal are assessed to Kim Fletcher.

AFFIRMED AS AMENDED.