author: |, Chief Judge JOAN BERNARD ARMSTRONG. _JjLOVE, J., | GORBATY, J. |, CANNIZZARO, J.,

text:
    Peter RANDO III and Anne Bodet Rando v. TOP NOTCH PROPERTIES, L.L.C. and Zurich Insurance Company/Assurance Company of America.
    No. 2003-CA-1800.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 2004.

      J. Douglas Sunseri, Dawn Danna Marul-lo, Nicaud, Sunseri & Fradella, L.L.C., Metairie, LA, for Third-Party Plaintiff/Ap-pellee.
    Robert T. Myers, Young, Richaud & Myers, Metairie, LA, for Third-Party Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERI F. LOVE, Judge DAVID S. GORBATY and Judge LEON A. CANNIZZARO).
   |, Chief Judge JOAN BERNARD ARMSTRONG.

REVERSED AND RENDERED IN PART AND REMANDED

Third party plaintiff-appellant, Dmitri Pile Driving, Inc. (Dmitri), appeals a summary judgment in favor of third party defendant-appellee, Century Surety Company (Century or Century Surety), dismissing Dmitri’s claims for indemnity, defense, and damages for bad faith failure to defend and provide coverage. We reverse and render in part and remand.

On March 12, 2002, plaintiffs in the main demand, Peter Rando, III and Ann Bodet Rando, instituted a Petition to Rescind Contract of Sale for Redhibition and for Damages for Breach of Contract pertaining to the construction of their home at 4425 Olive Drive in Meraux, Louisiana. Named as original defendants were Top Notch Properties, L.L.C. and Zurich Insurance Company/Insurance Company of America. Plaintiffs purchased the property from Top Notch on September 9, 1998.

Top Notch filed an answer and third party demand, naming Dmitri, Technon Systems, Inc., Engineering Services, Inc., Assurance Company of America and Continental Insurance Company as third party defendants. Dmitri filed an answer to Top Notch’s third party demand combined with a third party demand of its own against its insurer Century Surety.

| ¡.Century denied coverage and refused to provide a defense to Dmitri, whereupon Dmitri filed a supplemental third party demand alleging that Century was in bad faith in refusing to defend Dmitri, which Century answered.

Next Dmitri filed a motion for summary judgment seeking indemnity and/or defense from Century. Century filed a counter motion for summary judgment denying coverage and any obligation to defend.

A hearing was held on August 8, 2003, pursuant to which the trial court granted Century Surety’s motion for summary judgment and dismissed Century from the litigation. The trial judge designated the judgment as final and this appeal by Dmitri followed.

At the outset we wish to emphasize that a careful reading of the policy language is critical to the resolution of this case. We share the concern expressed by professors McKenzie and Johnson in 15 Civil Law Treatise (2d Ed.1996), § 186, at p. 380 that:

In some cases, courts have misapplied policies by seizing upon conclusions in earlier cases without realizing that the policy language had been revised.

An insurance company may limit coverage in any manner, as long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. But it is hornbook law that insurance policies are to be read broadly in favor of coverage and any ambiguity is to be construed against the insurer. Garcia v. St. Bernard Parish School Board, 576 So.2d 975 (La.1991). Exclusionary provisions in insurance contracts are strictly construed against the insurer. Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, judgment amended, (La.4/18/96), 671 So.2d 915. The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. Id. The fact that an insurance policy is a complex instrument requiring analysis does not render it ambiguous. Oxner v. Montgomery, 34,727, p. 6 (La.App. 2 Cir. 8/1/01), 794 So.2d 86, 90-91. The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183; Ott v. LPK Systems, Inc., 2000-1813 (La.App. 4 Cir. 11/28/01), 812 So.2d 38, 41. Only if the language can reasonably be read to have more than one reasonable meaning can the language be said to be ambiguous. The insurer, in this case Century, bears the burden of proving that a loss comes within a policy exclusion. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250 (La.1993).

Generally the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969). The insurer’s duty to defend suits is determined by the allegations of the petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Id. The allegations of the petition should be liberally construed in determining whether they set forth grounds which bring the claims within the |4scope of the insurer’s duty to defend the suit against its insured. Id. The duty to defend is not dependent upon the outcome of the suit. Id.

I. THE ALLEGATIONS OF STRUCTURAL DEFECTS IN THE RANDOM PETITION CONSTITUTE AN “OCCURRENCE” UNDER THE POLICY

It is undisputed that Century provided occurrence coverage to Dmitri from December 11, 1998 through December 11, 2001. At the crux of this appeal is the statement by the trial judge in his written reasons for judgment that:

The original Plaintiffs in the Petition alleged that the first damage occurred on October 2, 1998. Therefore, the alleged property damage is deemed to have occurred on October 2, 1998.[] Accordingly, the alleged damage did not occur within the policy period of December 11, 1998 through December 11, 2001. [Emphasis added.]

This is an allusion to the allegations to be found in paragraph V of the original plaintiffs original petition:

Twenty-three (23) days after the sale on October 2, 1998, the house began having serious problems with the air conditioning/heating unit leaking and failing to work properly. On February 24, 1999, sink holes began to visually appear on the property and it was discovered that the plumbing was leaking. Additionally, the concrete, stucco and bricks were crackling and damaged and the doors of the house became warped and failed to close properly.

A normal reading of this paragraph would lead the reader to conclude that the only defects noted on October 2, 1998, were air conditioning defects. Air conditioning defects manifesting themselves so soon after construction are not |stypically associated with faulty pile driving. Implicit in Dmitri’s argument is that its pile driving operations had nothing to do with the problems manifesting themselves in the air conditioning system only a few weeks after the Rando’s purchased the property. Indeed, that is what one would normally assume in the absence of proof to the contrary, and the burden of producing such proof is on Century as the mover for summary judgment denying coverage. On the other hand, the problems the Randos alleged they first noticed on or after February 24, 1999, are problems one would more readily associate with defective pile driving. Century offers no proof that the alleged problems with the air conditioning system were the result of Dmitri’s work. Dmitri has offered no proof that the air conditioning system problems were unrelated to its work. Moreover, proof of the causation of the air conditioning system defects is really wrapped up with the original plaintiffs’ proof of their claim at the trial on the merits. Therefore, we find that there is a genuine issue of material fact as to whether the air conditioning system problems are causally connected to Dmitri’s work. Accordingly, at this stage of the proceedings we must also find that there is a genuine issue of material fact as to whether the earliest alleged manifestation of defects and damage caused by the work done by Dmitri was February 24, 1999, which is within the policy period covered by Century.

Having determined that the allegations of the original petition raise claims for damages arguably within the policy period, we must next consider whether those damages are covered by the policy issued by Century.

The trial judge in his reasons for judgment states that:

In Coverage Section (A)(1) (b)(1) and (A)(1) (b)(2), the Policy states that the insurance applies to property damage only if the property damage is caused by an ¡^occurrence that takes place in the coverage territory which occurs during the policy period. The Policy defines exactly when afsicj occurrence us deemed to take place in Coverage Section (A)(1)(c). The section specifically states that the property damage is deemed to take place at the time of the first such damage or injury even though the nature and extent ■ of such damage or injury may change; and even though the damage may be continuous or repeated exposure to substantially the same general harm. The original Plaintiffs in the Petition alleged that the first damage to their property appeared on October 2, 1998. Therefore, the alleged property damage is deemed to have occurred on October 2, 1998. [Emphasis added.]

But, as we have already noted, the air-conditioning damage alleged to have become manifest on October 2, 1998, is not damage we can necessarily attribute to Dmitri in the absence of more specific allegations and/or proof, and the doctrine of res ipsa loquitur unquestionably does not apply. Therefore, as we agree with the trial judge that damage under the policy is deemed to take place at the time of the first such damage, the damage allegedly first noticed by the Randos that one could typically associate with defective pile driving by Dmitri would have occurred on February 24, 1999, within the coverage period of the policy. In other words, applying this definition of when damage occurs to the allegations made by the original plaintiffs, one would have to conclude that there was an occurrence on February 24,1999, within the policy period.

Century’s own brief supports this conclusion:

In Jackson v. Welco Mfg. Of Texas, 612 So.2d 743, 744 (La.App. 4th Cir.1992), the Court held that an occurrence is generally understood to mean the time and/or event when the negligence manifests itself by causing actual damages, rather than the commission of the causative act.

17This reasoning supports the conclusion that an alleged occurrence took place on February 24, 1999, within the policy period. But Century next argues that there was no occurrence because there was no discrete event that a reasonable person would call an accident, citing Trinity Industries, Inc. v. Insurance Company of North America, 916 F.2d 267, 269 (5 Cir.1990). Century contends that:

The allegations, such as Paragraph V of Plaintiffs original petition, indicate numerous problems occurring, but no concrete or discrete date or event is alleged and none exists. No discrete accident resulting in physical injury, or such event, is pled.

Section IV (13} — Commercial General Liability Conditions of Century Surety’s policy, defines Occurrence as follows:

“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. [Emphasis added.]

In other words, Century seizes on the word accident in the definition of Occurrence found in the policy in support of its contention that Occurrence should be limited to a concrete or discrete date or event. Thus, Century relies on a traditional, but narrow reading of the term accident such as an explosion, a fall, a collapse or a collision, rather than something evolving gradually or manifesting itself over time. On the other hand, Dmitri emphasizes the portion of the definition of Occurrence referring to continuous or repeated exposure to substantially the same general harmful conditions in support of its contention that the allegations against Dmitri concerning problems developing over time as a result of Dmitri’s allegedly negligent pile driving operations fall under the category of Occurrence. In other words, Dmitri contends that the term accident is modified by the subsequent reference to continuous or repeated exposure leading [sto a much broader concept of Occurrence; or at the very least the modifying phrase creates ambiguity which must be construed in favor of coverage.

The resolution of these two conflicting viewpoints is not immediately obvious as there are cases on both sides of the issue in the jurisprudence, all worthy of consideration.

In Serigne v. Wildey, 612 So.2d 155 (La.App. 5 Cir.1992), the court considered a policy definition of Occurrence identical to that before this Court in the instant case. Pelican State Mutual Insurance Company argued in Serigne that faulty construction and defective workmanship were not accidental and therefore not an occurrence within the confines of the policy. Id., at p. 156. The faulty construction and defective workmanship in Serigne resulted in the sudden collapse of a marina. The court found that the marina’s fall into the bayou was clearly an accident and consequently an insured-against occurrence. Id., at p. 157. A few paragraphs later, the court made a statement quite relevant to the instant case:

[T]he occurrences which caused the Se-rignes’ marina to fail occurred over an extended period of time.

Id.

Thus Serigne stands for the dual proposition that faulty construction and defective workmanship can constitute an accident or occurrence in spite of the fact that the problems may evolve over a period of time rather than occurring in one discrete instant.

In Korossy v. Sunrise Homes, Inc., 94-473 (La.App. 5 Cir. 3/15/95), 653 So.2d 1215, 1224 the insurance policies defined occurrence as follows:

[O]ccurrence means an accident, including continuous or repeated exposure to conditions, which | ^results in ... property damage neither expected nor intended from the standpoint of the insured ... [Emphasis added.]

Id. The plaintiffs’ claims in Korossy were based on excessive differential settlement of the foundations of their homes, which plaintiffs attributed to faulty construction and defective materials. The Korossy court went on to note in pertinent part that:

In a recent opinion we found a similar definition of occurrence in a CGL policy was ambiguous. Western World v. Paradise Pools & Spas, 93-723 (La.App. 5th Cir.2/23/94)[,] 633 So.2d 790, involved claims for damage to a swimming pool by cracks which developed in the pool walls and the patio decking surrounding it. We concluded occurrence was ambiguous because it was defined as an accident, including continuous or repeated exposure to conditions and thus could be construed to include development of cracks in the swimming pool, so that the policy in that case covered the damages.
The evidence in this case establishes that the damage in these cases was caused by continuous or repeated exposure to conditions, specifically the factors which Dr. Gilbert testified produced the excessive differential settlement. The policy definition makes continuous or repeated exposure to conditions an accident for purposes of an occurrence. [Emphasis added.]
We acknowledge the line of cases which hold that improper or faulty construction does not constitute the accident or fortuitous event that is required in order for there to be an occurrence under the policy definition. See, e.g., Swarts v. Woodlawn, Inc., 610 So.2d 888 (La.App. 1st Cir.1992); Fredeman Shipyard, Inc. v. Weldon Miller Contractors, Inc., 497 So.2d 370 (La.App. 3rd Cir.1986); Bacon v. Diamond Motors, Inc., 424 So.2d 1155 (La.App. 1st Cir.1982); Vitenas v. Centanni, 381 So.2d 531 (La.App. 4th Cir.1980). As we noted in Serigne v. Wildey, supra, however, those cases are [ indistinguishable because of specific policy language in each case.[] See 612 So.2d at 157.

Id., pp. 13-14, 653 So.2d at 1215.

Thus, Korossy supports Dmitri’s argument concerning the issue of occurrence and accident; but the Korossy court went on to deny coverage, holding that the exclusion for work performed by the named insured is applicable. Id., p. 27, 653 So.2d at 1230. While the result in Korossy might seem to support Century' Surety rather than Dmitri on the question of coverage, it is significant that there is no mention by the Korossy court of an exception to the exclusion for work performed such as exists in the Century policy in the instant case in the form of products-completed operations hazard coverage.

There are a number of cases including Alberti v. WELCO Mfg. Of Texas, 560 So.2d 964 (La.App. 4 Cir.1990) and Jackson v. Welco Mfg. Of Texas, 612 So.2d 743 (La.App. 4 Cir.1992), in which the definition of occurrence was the same in all material respects as that of the instant case and the court found coverage for defects of workmanship resulting in damages evolving over a period of time. However, in those cases this Court proceeded based on the assumption that an occurrence had occurred, which apparently was uncontested by the insurance company. The only point on this issue that was contested was whether the In occurrence had occurred during the period of coverage. While these cases support Dmitri’s position as far as they go, they are not conclusive because this Court did not consider specifically and directly the question of whether the definition of occurrence and accident includes defects in workmanship that only manifest themselves gradually over a period of time.

In Massey v. Parker, 98-1497 (La.App. 3 Cir. 3/3/99), 733 So.2d 74, the plaintiffs sued their contractor for construction defects in their new home. The policy def inition of occurrence in Massey was the same in all material respects to that of the instant case. In finding that construction defects could be considered occurrences under the policy, the Massey court carefully explained why it rejected the line of cases holding to the contrary:

The issues presented herein were recently addressed by this court in Iberia Parish School Board v. Sandifer & Son Construction Co., Inc., 98-319 (La.App. 3 Cir. 10/28/98), 721 So.2d 1021. In Sandifer, we rejected the line of jurisprudence in which courts refused to find an occurrence where the only basis of a contractor’s liability was improper construction. In doing so, we utilized the approach suggested by Professors William S. McKenzie and H. Alston Johnson, III, in their treatise on Louisiana insurance law. In the professor’s view:
Whether there has been an occurrence, however, depends upon whether there has been an accident, not upon the legal cause or consequence of that accident. Defective workmanship or the incorporation of defective materials is an ‘accident’.... [] With construction defects, the real issue usually is not whether there has been an “occurrence,” but whether there has been property damage during the policy period, and, if so, whether the “work” exclusion is applicable. If the roof leaks or the wall collapses, the resulting property damage 112triggers coverage under an “occurrence” basis policy, even if the sole cause is improper construction and the only damage is to the work performed by the contractor. Whether coverage for such an “occurrence” is excluded by the work, product or other exclusion is a separate, very important inquiry.... On the otherhand, the mere existence of a construction defect does not trigger coverage under an “occurrence” basis policy; coverage is triggered only if the defect causes property damage during the policy term.
Id. at pp. 6-7, 721 So.2d at 1023-24 (quoting MCKENZIE AND JOHNSON, 15 LOUISIANA CIVIL LAW TREATISE, INSURANCE LAW AND PRACTICE § 183, at p. 370 (2d ed.1996) (emphasis added)).
In deciding the issue of whether there was an occurrence that triggered coverage under the State Farm policy, the trial court followed the line of jurisprudence rejected in Sandifer and held that the Masseys failed to prove an “occurrence.” We reverse and find there was an “occurrence.”

Id., pp. 2-3, 733 So.2d at 75-76.

In Iberia Parish School Board v. Sandifer & Son Construction Co., Inc. , 98-319 (La.App. 3 Cir. 10/28/98), 721 So.2d 1021, which provided the basis for the decision in Massey, supra, the court also explained its rejection of the contrary line of cases:

Commercial Union claims that there has been no “occurrence” and no allegation of property damage in this case. It claims that the only claimed damage is the defective roof itself. Commercial Union relies on Carpenter v. Lafayette Woodworks, Inc., 573 So.2d 249 (La.App. 3 Cir.1990); Fredeman Shipyard, 497 So.2d 370; and Swarts, 610 So.2d 888. All three cases found that defective workmanship was not an “occurrence” that would trigger policy coverage. All three cases applied the well-settled principle of insurance law that liability | ^policies are not intended to serve as performance bonds. After finding that defective workmanship was not an occurrence-more or less as a matter of law-the three courts then applied the work-product exclusion clause in the policies to exclude coverage to the insured for or replacement of his own defective work or defective product. We are left uncertain as to what the real basis for the finding of non-coverage was. We prefer to utilize the approach suggested by Professors McKenzie and Johnson quoted above.
Under the terms of the present Commercial Union policy, an “occurrence” is an “accident including continuous or repeated exposure to substantially the same general harmful conditions.” The roof leaked. That was an accident or “occurrence.” The roof leaked allegedly because improper construction caused damage to it and made it leak. As a result, the roof had to be replaced. As with the gas escaping in the Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958) case, there are allegations in our present case that defective workmanship and defective materials caused continuous exposure to rain at the school, which caused the roof to leak. This allegedly resulted in property damage because the roof had to be replaced. This allegedly improper construction causing damage to the roof triggered an “occurrence” under the terms of the present policy.

Sandifer, pp. 7-8, 721 So.2d at 1024.

Dmitri contends in its brief that:

The court [in Sandifer] also rejected attempts by the insurer to deny coverage based upon the work-product exclusion, finding there to be coverage under the product-completed operations provision.

Actually, the Sandifer court found that the work product exclusion did apply, but also found an exception to the exclusion where the work was performed 114on behalf of the contractor by a subcontractor. Dmitri does not contend that this exception to the work product exclusion is applicable in the instant case.

In Gaylord Chemical Corp. v. ProPump, Inc., 98-2367 (La.App. 1 Cir. 2/18/00), 753 So.2d 349, the first circuit adopted the same reasoning as was used in Massey and Sandifer, supra, based on McKenzie and Johnson, but noted the following important additional concept:

Accident is defined from the viewpoint of the victim; losses that were unforeseen and unexpected by the victim are the result of an accident. Id. at 373; see also Nelson v. Want Ads of Shreveport, Inc., 31,168 (La.App. 2nd Cir.10/30/98), 720 So.2d 1280, 1282-83; Korossy v. Sunrise Homes, Inc., 94-473 (La.App. 5th Cir.3/15/95), 653 So.2d 1215, 1223-24, writs denied, 95-1522 and 95-1536 (La.9/29/95), 660 So.2d 878.

While all of the foregoing cases favor Dmitri’s position, we acknowledge as we stated earlier the existence of a contrary line of cases finding that construction defects are not accidents or occurrences. Vitenas v. Centanni, 381 So.2d 531 (La.App. 4 Cir.1980), is a frequently cited mainstay of such cases. In Vitenas this Court took the position that:

The policy, under its comprehensive general liability coverage, provides that the company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of property damage to which this insurance applies, caused by an occurrence. Under the policy definition, occurrence means “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured;”. Under the 11Bfacts of this case, there was no occurrence as defined in the policy. The liability of the contractor is dependent solely upon his improper construction of the carport by slanting the concrete slab the wrong direction and by resting the roof facia board on the support column.

Id., 381 So.2d at 534-535.

In Fredeman Shipyard v. Weldon Miller Contractors, Inc., 497 So.2d 370 (La.App. 3 Cir.1986), another oft cited case, the court chose to follow those cases finding no accident or occurrence where the liability of a contractor was dependent solely on his improper construction ... Id. at 374. In making this statement, the Fredeman Shipyard court cited this Court’s opinion in Vitenas, supra. However, this Court in its much more recent opinion in Orleans Parish School Board v. Scheyd, 95-2653 (La.App. 4 Cir. 4/24/96), 673 So.2d 274, chose to explain away Fre-deman Shipyard on this issue and, therefore, implicitly explained away Vitenas as well:

Thus, we find that the rationale of Fre-deman is based, not on the notion that improper or defective workmanship can never be an occurrence, but on the fact that it was excluded by the work product exclusion. [Footnote 6 omitted.] The existence of a work product exclusion is the real thrust of the [insurer’s] argument.

Scheyd, pp. 7-8, 673 So.2d at 278.

The earlier case of Vobill Homes, Inc. v. Hartford Accident and Indemnity Company, 179 So.2d 496 (La.App. 3 Cir.1965), gave an even stronger expression to view expressed in Vitenas:

For this reason, it has uniformly been held that a liability policy with an exclusion clause such as the present does not insure any obligation of the policyholder to repair or replace his own defective work or defective product.

Id., 179 So.2d at 497.

In Bacon v. Diamond Motors, 424 So.2d 1155 (La.App. 1 Cir.1982), another leading case supporting the notion that occurrence and accident do not include construction defects, the First Circuit relied on this circuit’s decision in Vitenas, supra. However, in the later First Circuit case of Gaylord Chemical Corp. v. Pro-Pump, Inc., 98-2367 (La.App. 1 Cir. 2/18/00), 753 So.2d 349, the First Circuit relied on professors McKenzie and Johnson and the case of Korossy, supra, in deciding that an accident and an occurrence had taken place when a pump sold by Commercial Union Insurance Company’s insured, Pro-Pump, failed to perform properly. Therefore, in spite of the fact that Gaylord does not explicitly state that a construction defect is an accident or an occurrence, Korossy and McKenzie and Johnson upon which Gaylord relied, do. It follows that were the Bacon case to come before the First Circuit today, subsequent to Gaylord, the result would most likely be different. In other words, we place the First Circuit in the category of those Louisiana appellate circuits that subscribe to the idea that construction defects can constitute accidents and occurrences.

In Carpenter v. Lafayette Woodworks, Inc., 573 So.2d 249 (La.App. 3 Cir.1990), the Third Circuit relied on Vitenas, Fredeman Shipyard, and Bacon, supra, to find no accident or occurrence where the liability of a contractor was dependent solely on his improper construction or faulty repair work. But we find that the Third Circuit has implicitly overruled Carpenter by virtue of its contrary later decisions in Sandifer and Massey, supra.

In Lewis v. Easley, 614 So.2d 780 (La.App. 2 Cir.1993), the Second Circuit cites Fredeman, supra, in stating that no occurrence or accident transpires where the liability of a contractor depends solely on improper construction or faulty repair work. However, in the later case of Oxner v. Montgomery, 34,727 17(La.App. 2 Cir. 8/1/01), 794 So.2d 86, the Second Circuit repudiated the statement it made in Eas-ley concerning the meaning of occurrence and accident, labeling them mere dicta based on an analysis by professors McKenzie and Johnson and the Second Circuit’s decision in Joe Banks Drywall & Acoustics, Inc. v. Transcontinental Insurance Company, 32,743 (La.App. 2 Cir. 3/1/00), 753 So.2d 980. In Joe Banks Drywall, a stain on vinyl flooring that seeped up from below was found to be to be an occurrence.

Swarts v. Woodlawn, Inc., 610 So.2d 888 (La.App. 1 Cir.1992), involved structural defects analogous to those found in the instant case, but the alleged negligence in Swarts was the building of the residence on unstable subsoil. Based on Fredeman, Bacon, and Vitenas, the First Circuit in Swarts found no accident or occurrence based:

The policy defines an occurrence as an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage either expected or intended from the standpoint of the insured. Where the liability of a contractor is based solely on improper construction, courts have refused to find occurrence in insurance policies containing identical or substantially similar definitions of occurrence. See Fredeman Shipyard Inc. v. Weldon Miller Contractors, Inc., 497 So.2d 370, 374 (La.App. 3d Cir.1986). In Bacon v. Diamond Motors, Inc., 429 So.2d 131 (La.1983), this court held that faulty repair work did not fall within a liability policy’s definition of an accident, where the definition of that term was virtually identical to the term occurrence in the present policy. See also Vitenas v. Centanni, 381 So.2d 531 (La.App. 4th Cir.1980) (holding that a policy which defined occurrence similarly to the definition in the present policy did not provide coverage for a claim against a contractor for alleged faulty workmanship in constructing a building). Plaintiffs are asserting a claim based on faulty construction against Security’s insured; thus, under the jurisprudence, there has been no occurrence to trigger coverage under the policy. [Emphasis added.]

\YJd., at p. 890.

However, as noted previously in this opinion, the First Circuit in the much more recent Gaylord case, supra, reached a result diametrically opposed to the result it reached several years earlier in Swarts and Bacon, leading this Court to conclude that the First Circuit has tacitly rejected the reasoning of its earlier holdings in Swarts and Bacon, supra.

Based on the foregoing survey of cases we find that the clear weight of authority in more recent cases considers defects in construction that result in damage subsequent to completion to be accidents and occurrences when they manifest themselves. However, a clear signal from the Supreme Court on this issue would surely do much to eliminate expensive future litigation.

Having concluded that the alleged damages arising from structural defects alleged by the Randos to have manifested themselves subsequent to the air conditioning problems and within the coverage period of Century’s policy, constitute occurrences covered the Century policy, we must next turn to the question of whether there are any exclusions in the policy upon which Century could legitimately base its decision to deny coverage.

II. THE POLICY PROVIDES “PRODUCTS-COMPLETED OPERATIONS” COVERAGE

Paragraph “j. Damage to Property” under the exclusions section of the policy excludes property damage coverage for among other things:

That particular part of any property that must be restored, repaired or replaced because your work was incorrectly performed on it.

| ^Obviously this exclusion applies because the claim against Dmitri is basically one for the incorrect performance of its pile driving work. However, the policy goes on to make several exceptions to this exclusion, including the following:

Paragraph (6) of this exclusion does not apply to property damage included in the “products-completed operations hazard.”

In other words, the exception to the exclusion provides coverage for incorrectly performed work where the property damage is “included in the ‘products-completed operations hazard’ “. The policy defines “Products-completed operations hazard” in § 16 of the definitions section of the policy, in pertinent part as follows:

16. “Products-completed operations hazard”:
a. Includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned.

In this case it is uncontested that the alleged damages occurred away from Dmitri’s premises; the products are not still in Dmitri’s physical possession; and Dmitri’s work has been completed. Therefore, the Randos allegations fall within the “product-completed operations hazard” coverage of the policy.

The Century Surety policy Commercial General Liability Coverage Part Declarations shows $300,000 for the “Products-Completed Operations Aggregate Limit,” i.e., a reasonable reading of the policy includes “products-completed operations coverage.”

| ¡^Consistent with this “products-completed operations” coverage is an endorsement form entitled Special Conditions— Independent Contractors referring to independent contractors who have provided to Dmitri, prior to entering any job site on behalf of Dmitri, certificates of insurance for $800,000 for Products/Completed Operations. Thus, it is impossible to conclude that the policy unambiguously intends to exclude products/completed operations coverage. We note that Century has offered no explanation for what is shown on the declarations page to contradict this conclusion.

An exception to the incorrectly-performed-work exclusion based on “products-completed operations hazard” coverage that is identical to that found in the Century policy in the instant case is to be found in Vintage Contracting, L.L.C. v. Dixie Building Material Company, Inc., 03-422, p. 8 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, 27. Vintage involved a concrete slab that had to be replaced because it did not meet contract specifications. The court noted that coverage for products-completed operations hazard was shown on the declarations page of the insurance policy, just as it is to be found on the declarations page of the Century policy in the instant case.

The Vintage court stated that coverage would apply under the “products-completed operations hazard” were it not for the fact that the work had not been completed at the time the claim arose:

Although appellants contend that this provision in the policy is ambiguous, we find the terms of the policy to be clear and unequivocal. In order for this coverage to apply, the work must have been completed or abandoned, neither of which occurred in this case.

| ai Relying on professors McKenzie and Johnson, Insurance Law and Practice, 15 La. Civil Law Treatise, § 186 (2nd Ed.1996), the Vintage court explained products-completed operations hazard coverage:

The completed operations hazard refers to the insured’s exposure to liability arising out of completed work performed away from his premises. The products liability and completed operations hazard are usually covered under the standard provisions of a general liability policy, but an insured may choose to exclude such coverage.

However, while Vintage implies that products-completed operations coverage under language such as is found in Century’s policy would provide an exception to an exclusion for incorrectly performed work, we cannot say that Vintage actually held that. However, we are persuaded that where completed operations coverage is provided, it would afford coverage of the type Dmitri is seeking in the instant case.

The policy in Kidd v. Logan M. Killen, Inc., 93-1322 (La.App. 1 Cir. 5/20/94), 640 So.2d 616, includes language identical to that found in the Century policy in all respects relevant to the work product exclusion and the exception to that exclusion for products-completed operations coverage. The Kidd court distinguished a number of cases upon which Century relies on the basis that they did not contain products-completed operations coverage:

We note the numerous cases which hold that a liability policy with a work product exclusionary clause does not provide coverage to the insured for repair or replacement of the contractor’s own defective work or defective product. See, Swarts v. Woodlawn, Inc., 610 So.2d 888 (La.App. 1st Cir.1992); Bacon v. Diamond Motors, Inc., 424 So.2d 1155 (La.App. 1st Cir.1982), writ denied, 429 So.2d 131 (La.1983); Vitenas v. Centanni, 381 So.2d 22531 (La.App. 4th Cir.1980). However, none of the policies in these cases contained coverage for “products-completed operations,” which Safeco admitted is afforded to Killen. See also Fredeman Shipyard, Inc. v. Weldon Miller Contractors, Inc., 497 So.2d 370 (La.App. 3rd Cir.1986). [Emphasis added.]

Id., pp. 10-11, 640 So.2d at 622.

The declarations in the policy in Kidd showed $500,000.00 products-completed operations coverage, just as the declarations page in the Century policy in the instant ease shows $300,000.00 of such coverage. In Kidd it appears that the proper forms describing the products-completed operations coverage were not attached to the policy, but because of the declarations page showing $500,000.00 of such coverage, the Kidd court held that summary judgment in favor of the insurance company based on the work product exclusion was not proper. In effect, the Kidd court held that the conflict between what was shown on the declarations page and the work product exclusion created a genuine issue of material fact unsuitable for disposition by summary judgment. In the instant case there is no suggestion that any of the forms related to the products-operations completed hazard coverage are missing, which would logically mean that Dmitri’s argument that it had such coverage is even stronger than the argument made by the insured in Kidd.

James Pest Control v. Scottsdale Ins. Co., 99-1316 (La.App. 5 Cir. 6/27/00), 765 So.2d 485, cited by Dmitri in support of its assertion that the damage in the instant case occurred during the period of policy coverage, is otherwise inapposite to the instant case because it involved termite damage and not construction damage and there was no issue of a work product exclusion.

IgtjCentury cited Orleans Parish School Board v. Scheyd, Inc., 95-2653 (La.App. 4 Cir. 4/24/96), 673 So.2d 274, in support of its attempt to have this Court apply the manifestation theory to the occurrence, but the issue as we have shown is not so much whether there was an occurrence or whether an occurrence occurred during the period of coverage, which issues we have conceded to Dmitri, but whether the work product exclusion applies. In Scheyd the work product exclusion was replaced with a Broad Form Comprehensive endorsement that this Court found created sufficient ambiguity to require the insurer to provide a defense, although this court specifically reserved to the insurer the right at a trial on the merits to prove that there was no coverage. Such a Broad Form Comprehensive endorsement is not to be found in the instant case.

All of the relevant policy provisions in Mike Hooks, Inc. v. JACO Services, Inc., 95-1485 (La.App. 3 Cir. 5/8/96), 674 So.2d 1125, are identical to those found in the Century policy in the instant case, with one very significant difference: There is no mention in Mike Hooks of an exception to the work product exclusion such as we quoted above in the Century policy. In Mike Hooks the court conducted the following analysis:

It is well settled that liability policies containing a work product exclusion similar to the one at issue does [sic] not provide coverage for the defective work or defective product of the insured. Parker v. Dubus Engine Co., 563 So.2d 355 (La.App. 3 Cir.1990); Kold, Inc. v. United States Fidelity & Guar. Co., 496 So.2d 1338 (La.App. 3 Cir.), writ denied, 498 So.2d 758 (La.1986). As an exception to this rule, JACO and Hooks cite Kidd v. Logan M. Killen, Inc., 93-1322 (La.App. 1 Cir. 5/20/94), 640 So.2d 616. In Kidd, the policy provided coverage for products-completed operations in the amount of $500,000.00. The policy also contained an exclusion for “ ‘property damage’ to ‘your product’ arising out of it or any part of it,” and “ ‘property damage’ to ‘your work’ arising out of it.” The court in Kidd stated:
1 i>4After reviewing the record and the evidence submitted, we cannot say that there are no genuine issues of material fact as to coverage, nor can we say that reasonable minds must inevitably conclude that Safeco is entitled to judgment as a matter of law. The policy declarations clearly reveal that there is coverage for “products-completed operations hazard” up to the policy limits of $500,000.00. Moreover, in its appellate brief, Safe-co unequivocally acknowledges that there is coverage for “products-completed operations.”
While the language in the policy contains numerous provisions regarding the coverage, exclusions, and exceptions to the exclusions and may suggest that the damages sustained by the Kidds fall under the “products-completed operations” coverage of the policy, there are no provisions in the policy regarding this coverage, other than that contained in the definitions section of the policy.

Id. at 621.

We agree with our brethren in Kidd. The policy at issue here, similar to that found in Kidd, clearly provides $1,000,000.00 in coverage for products-completed operations and then attempts to exclude coverage for this in exclusion 2(1). Aside from the entry in the definition section of the policy for products-completed operations hazard, the only reference made to products-completed operations coverage is in exclusion 2(0- We are unable to find an unambiguous provision in this policy addressing what the products-completed operations coverage, as found on the declarations page, encompasses. As such, we find that the portions of the policy covering products-completed operations to be ambiguous. Therefore, we are constrained to interpret these terms in a light favoring coverage. [Emphasis added.]

Mike Hooks, supra, pp. 5-6, 674 So.2d at 1127-1128.

lasAs the Mike Hooks court found sufficient ambiguity in the policy to defeat summary judgment based on the declarations of coverage for products-completed operations coverage alone with no mention of an exception to the work product exclusion, per force, in the instant case where there is not only a declaration of $300,000.00 of such coverage in the Century policy analogous to that found in Mike Hooks, but also a specific exception to the exclusion of coverage, the Mike Hooks reasoning would dictate that we reverse the judgment in favor of Century.

We are persuaded that the specification of a $300,000.00 coverage amount on the declarations page for products-work completed coverage similar to the specific coverage amount found in Kidd and Mike Hooks along with the exception for such coverage to the incorrectly performed work exclusion is sufficient to allow us to determine that Century is obligated to provide Dmitri with both coverage, assuming that the occurrence occurred during the coverage period, and a defense until such time as it can be shown that the occurrence did not occur during the period of coverage.

III. CONCLUSIONS AND DECREE

Pursuant to the foregoing analysis we make the following findings:

1. The allegations of the plaintiffs’ petition state a claim for an occurrence or accident under the Century policy-
2. The policy provides an exception to the work-product exclusion in the form of products-completed operations coverage.
3. There is a genuine issue of material fact concerning whether the problems with the plaintiffs’ air conditioning system are causally related to Dmitri’s work, i.e., there is a genuine issue of material |2sfact as to whether the claims alleged by the plaintiffs manifested themselves pri- or to the period of coverage provided by Century.
4. Therefore, the allegations of the petition do not clearly and unambiguously exclude coverage.
5. As we find that the Century policy does not clearly and unambiguously exclude coverage for Dmitri, Century is obligated to provide Dmitri with a defense.

Accordingly, we reverse the judgment of the trial court and render a partial summary judgment in favor of Dmitri and against Century condemning Century to provide a defense to Dmitri. Dmitri prayed for the cost of defense to date, but did not brief that issue. Therefore, we deem that issue to be abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4. All costs of this appeal are to be borne by Century. We remand to the trial court for further proceedings consistent with this opinion.

REVERSED AND RENDERED IN PART AND REMANDED

LOVE, J., concurs.

GORBATY, J., dissents with reasons.

CANNIZZARO, J., concurs with reasons.

_JjLOVE, J.,

concurs.

I concur for the reasons assigned by Judge Cannizzaro.

| GORBATY, J.

dissents with reasons.

I respectfully dissent. Century issued a Contractors Commercial General Liability occurrence policy to Dmitri, providing bodily injury and property damage coverage which occurs during the policy period. The policy was in effect from December 11, 1998 through December 11, 2001. However, according to the plaintiffs’ Petition for Damages, the first complaint of damage to the home was October 2, 1998, before the policy was in effect.

The policy provides in part:

All bodily injury or property damage arising from, caused by, or contributed to by or in consequence of an occurrence shall be deemed to take place at the time of the first such damage or injury, even though the nature and extent of such damage or injury may change; and even though the damage may be continuous, progressive, cumulative, changing or evolving; and even though the occurrence causing such bodily injury or property damage may be continuous or repeated exposure to substantially the same general harm.

I feel that the trial court was correct in ruling that the occurrence clause was triggered when the first such damage took place, on October 2, 1998, the date on which the leaking first appeared. To find that the earliest alleged manifestation of defects was on February 24, 1999, as suggested by the majority, would impermissi-bly expand the occurrence clause of the policy. I further note that I do not share the majority’s concern that the trial court misapplied the policy in | ¡,,question, and in fact find the trial court’s judgment to be a thorough, well-reasoned analysis of the facts and pertinent law.

Since the damage was evident and discoverable before the policy of insurance came into effect, no coverage existed. Accordingly, for the foregoing reasons, I would affirm the judgment of the trial court.

|, CANNIZZARO, J.,

concurs with reasons.

While I agree with the result reached by the majority opinion, I write separately to note that there are only two dispositive issues before us in this appeal, specifically: 1) whether the trial court erred in granting summary judgment in favor of Century on the basis that the first occurrence of the plaintiffs’ property damage did not manifest itself within the effective policy period, and 2) whether Century has a duty to defend Dmitri in the suit against it. In my opinion, we need not address the issues of whether any policy exclusions are applicable and/or whether the policy provisions are ambiguous.

The trial court granted summary judgment, finding that the plaintiffs’ allegation in paragraph V of their original petition that on October 2, 1998, the house began having serious problems with the air conditioning/heating unit leaking and failing to work properly constituted the first damage to the plaintiffs’ property and because that damage did not occur within the policy period, liability coverage was not available for the claims against Dmitri as a result of its faulty work. The plaintiffs’ allegation regarding the air conditioning/heating unit’s problems, however, makes no reference to any foundation failure or foundation repairs that may be attributable to Dmitri’s pile driving work. On the other hand, the plaintiffs’ additional allegation in paragraph V of the petition that:

|2on February 24, 1999, sink holes began to visually appear on the property ... the plumbing was leaking ... the concrete, stucco and bricks were cracking and damaged and the doors of the house became warped and failed to close properly ...

refers to property damage that occurred within the policy period and appears to be attributable to foundation failure. It cannot be ascertained from the petition alone whether the air-conditioning/heating unit problems that occurred in October 1998 were attributable to the faulty foundation and Century has offered nothing in support of its motion for summary judgment to prove that they were. Thus, there remains an unresolved issue of fact that precludes the granting of summary judgment on the basis that the first damage to the property did not occur within the policy period. The trial court erred in holding otherwise.

Regarding the duty to defend issue, it is well settled that an insurer’s duty to defend is broader than its liability for an adverse judgment. Bryant v. Motwani, 96-1351 (La.App. 4 Cir. 10/30/96), 683 So.2d 880. The insurer’s duty to defend is determined by comparing the allegations of the plaintiffs complaint with the terms of the policy; the insurer generally has a duty to defend unless the allegations in the complaint unambiguously exclude coverage. American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253, 259 (1969). Where the pleadings, taken as true, allege both coverage under the policy and liability of the insured, the insurer is obligated to defend, regardless of the outcome of the suit or the eventual determination of actual coverage. Id.; Bryant, 683 So.2d at 884. It is undisputed that the Century CGL policy provided Dmitri with liability coverage for the period December 11, 1998 through December 11,- 2001. Because the plaintiffs’ allegations of property damage are not clearly and unambiguously excluded from coverage under the policy, Century has a duty to defend its insured.

| ¡¡Accordingly, I concur in the reversal of the summary judgment rendered in favor of Century and in the rendering of a partial summary judgment in favor of Dmitri, condemning Century to defend it against the third party claims raised by Top Notch Properties.

      . Dmitri was originally designated in Top Notch's pleadings as an L.L.C., but this designation was later corrected in subsequent pleadings showing that Dmitri was a corporation.

      . This is based on what is referred to as the Manifestation Rule of when an occurrence is said to take place for insurance purposes, i.e., an occurrence is said to have occurred when evidence of the occurrence first manifests itself. Century Surety urges this Court to adopt the Manifestation Rule, citing Korossy v. Sunrise Homes, Inc., 94-473 (La.App. 5 Cir. 3/15/95), 653 So.2d 1215 and Lafayette Ins. Co. v. C.E. Albert Constr. Co., 95-0048 (La. App. 4 Cir. 9/15/95), 661 So.2d 1093. We agree with Century that the Manifestation Rule should be applied in the instant case, but disagree with Century as to when the occurrence may have first manifested itself.

      . Italics original.

      . Emphasis original.

      . This statement is not accurate. Neither is the statement referred to in Serigne v. Wildey, supra, where the court stated that:
      In none of these cases, however, does the insurance cover an occurrence which is described in the policy as an accident.
      The Serigne court then went on to use an example the case of Fredeman Shipyard v. Weldon Miller Contr., 497 So.2d 370 (La.App. 3 Cir.1986). However, we note that the Fre-deman opinion specifies that occurrence is defined in the context of accident:
      Under the Definitions section of the policy, occurrence means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.

        Id., 497 So.2d at 374.

      . Emphasis original.

      . In Sandifer the plaintiff was complaining of a leaky roof.

      . McKenzie & Johnson, Insurance Law and Practice, § 198, 15 La. Civil Law Treatise (2d Ed. 1996), Work and Product Exclusions states that:
      These exclusions are known as damage or injury to products and work performed ex-elusions. They are sometimes referred to collectively as the "work-product” exclusion in earlier policy forms. These exclusions reflect the intent of the insurance industry to avoid the possibility that coverage under the CGL policy will be used to repair and replace the insured’s defective products and faulty workmanship. The CGL policy is not intended as a guarantee of the quality of the insured’s products or work.

      . Regarding the work product exclusion, the Sandifer court stated:
      In analyzing a comprehensive general liability policy which provided products-completed operations coverage, this court rejected the contention that the coverage for the products hazard was not subject to the work-product exclusions, finding the policy excluded coverage for damage to the seller's product. Aetna Ins. Co. v. Grady White Boats, Inc., 432 So.2d 1082 (La.App. 3 Cir.1983). [Emphasis added.]

      . In the instant case it is uncontested that Dmitri's work was completed well before any alleged damages manifested themselves.

      . This same quote can be found in Oxner v. Montgomery, 34,727, p. 13 (La.App. 2 Cir. 8/1/01), 794 So.2d 86, 94.


source: Caselaw Access Project

author: I, DAVID S. GORBATY, Judge. [ t CANNIZZARO, J.,

license: Public Domain

text:
    Gladys MARTIN v. PERFORMANCE MOTORWERKS, INC., Charles Healey II d/b/a Performance Motor Car Gallery and ABC Insurance Company.
    No. 2003-CA-1219.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 16, 2004.
    Order Granting Rehearing Aug. 4, 2004.

      Harry T. Widmann, Scott T. Winstead, Metairie, LA, for Plaintiff/Appellee.
    Joseph L. McReynolds, Kerrie T. Bel-some, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   I, DAVID S. GORBATY, Judge.

Defendants, Performance Motorwerks, Inc., and Charles Healy, III , d/b/a Performance Motor Car Gallery, appeal a judgment rendered in favor of Gladys Martin for $466,500.00. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Gladys Martin, her daughter and niece visited the defendants’ automobile showroom on May 27, 1993 to look at a vehicle Ms. Martin was interested in buying. According to both Ms. Martin and her daughter, Dana Brown, it was Ms. Martin’s intention to test drive the vehicle and have it inspected by a private mechanic. The three women drove to the dealership, where Ms. Brown, who was driving her personal automobile, was instructed to park in a covered building next to the showroom that served as both a service and detailing area. Ms. Brown testified that the spot where she was instructed to park was immediately adjacent to the detailing area where a man was steam cleaning a car engine. As Ms. Martin |¡>was alighting from the car, she claims to have lost her footing because of either water or some other substance on the ground. She struck her back on the running board of the car and her head on the frame between the front and rear doors, and landed on her back on the concrete floor. Ms. Martin claims to have lost consciousness, a claim corroborated by her daughter, a registered nurse. Following the incident, Ms. Martin testified that the man detailing the car brought her a towel to place under her head. Ms. Martin claims that a woman came out of the office and told her to be careful because it is always slippery in that area. The woman explained that she takes her shoes off everyday. Because the woman claimed to be at the dealership everyday, Ms. Martin assumed that she was an employee. Ms. Martin also testified that another woman, whom she identified at trial as Mrs. Healy, came out of the office and proceeded to yell at Mr. Lee, the salesman with whom she had scheduled the appointment, because of where he had told the Martin party to park. Mrs. Healy did not talk to Ms. Martin at all. When Ms. Martin was able to move, her daughter and niece helped her into the dealership showroom where they sat for a while. Ms. Martin told Mr. Lee that she would not be able to test drive the car that day, but would like to come back to do so.

Mr. Michael Lee, who had been employed by defendants since 1982, testified that he did not instruct Ms. Martin’s daughter on where to park. He saw them pull up in front of the dealership, but was distracted by some activity in the street. When he entered the service area, he noticed Ms. Martin seated in the passenger seat of the car with the door open and her feet on the ground. He |3approached the car, and was told by either Ms. Martin or her daughter that Ms. Martin had fallen. He did not observe anything on the ground near where she claimed to have fallen. Mr. Lee said the floor was a pebble concrete painted with epoxy paint. The detail area was about thirty feet to the left of where the car was parked; the floor sloped toward a drain near the wall. Mr. Lee denied that Mrs. Healy yelled at him, and he believed it may have been Mrs. Healy who asked Ms. Martin to go into the showroom lounge area. Mr. Lee testified that Ms. Martin test drove the vehicle the day of the accident, but returned the next day to take it to a mechanic.

Mrs. Mary Healy testified that when someone reported to her that a customer had fallen, she left her office and found Ms. Martin seated in the lounge area. Mrs. Healy inspected the area where the car was parked, but found no water, wax, or other substance on the floor. She claimed that she asked Ms. Martin if she was hurt, and she denied being so. She remembers all three women continuing to look at cars on the showroom floor, and did note that they were all barefooted. On cross-examination, Mrs. Healy admitted that Michael Lee told her he had directed the Martin party to the parking space.

Following a bench trial, the trial court rendered judgment in favor of Ms. Martin, awarding her the lump sum of $466,500, with costs and interest. The reasons for judgment explain that the trial court accepted Ms. Martin’s version of how the accident happened. The trial court specifically found that, although Ms. Martin’s medical records indicated that she had previously suffered from | ¿headaches, loss of concentration and memory loss, those conditions had cleared up at least six years prior to the accident in question. Therefore, the court attributed Ms. Martin’s claims of injury in this suit to the accident of May 27,1993.

DISCUSSION:

Defendants make three assignments of error. First, the trial court erred in its application of La.Rev.Stat. 9:2800.6 because there was an absence of proof of constructive notice of a dangerous condition. Second, the trial court erred in attributing Ms. Martin’s injuries to the slip and fall. Last, the trial court abused its discretion in awarding $466,500 in general damages for the injuries allegedly sustained.

Louisiana Revised Statute 9:2800.6 was amended in 1996. Prior to that amendment, and at the time of the subject incident, the pertinent parts of the statute read as follows:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and
ls(3) The merchant failed to exercise reasonable care.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless such finding is clearly wrong. Stobart v. State, 92-1328 (La.4/12/93), 617 So.2d 880; Rosell v. ESCO, 549 So.2d 840 (La.1989). Further, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, supra; Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one in light of the evidence in the record. Stobart, supra.

Although not specifically stated in its reasons for judgment, it can be inferred that the trial court accepted plaintiffs version of how the accident occurred, that is, there was some substance on the floor that caused Ms. Martin to slip and fall. It can be further inferred that the trial court found the substance presented an unreasonable risk of harm to the plaintiff, the risk of harm was reasonably foreseeable, and that defendants created the risk.

Defendants argue that the trial court erred because La.Rev.Stat. 9:2800.6 requires plaintiff to prove that the merchant had constructive notice of the potential hazard. However, La.Rev.Stat. 9:2800.6 B(2) provides that the plaintiff must prove either that the merchant created or had actual constructive notice of the condition. Plaintiffs supplied ample evidence, which the trial court accepted as true, that there was an employee of defendants cleaning a vehicle with a steam cleaner immediately adjacent to the spot where Ms. Martin slipped. Ms. Martin and her daughter both testified that there was water over the entire area, and a wax-_jike6 substance in= a small area near the fall. On the other hand, defendants presented conflicting testimony as to whether the floor was wet at all. Both Mr. Lee and Mrs. Healy testified that there was no water or any other substance on the floor near where Ms. Martin’s vehicle was located. However, Mrs. Healy also testified that when she saw Ms. Martin, her daughter and niece in the showroom, they were all barefooted. It is entirely plausible for the trial court to have reasoned that these persons were barefooted because of a wet condition in the service/detail area from which they had come. Thus, the record supports the trial court’s findings of fact, and this Court is bound not to upset such findings. Accordingly, we find no error in the trial court’s application of La.Rev.Stat. 9:2800.6.

In their second assignment of error, defendants claim that the trial court erred in attributing any of Ms. Martin’s injuries to her accident of May 27, 1993. Although none of Ms. Martin’s treating physicians testified at trial, all of the perpetuation depositions were submitted into evidence for the trial court’s review. The trial court recognized that Ms. Martin had been treated by Dr. Mohnot in 1985, 1986 and 1987 for complaints of “trouble concentrating,” “forgetfulness,” ■ and headaches. However, the court specifically quoted Dr. Mohnot’s note of 10/1/87:

[Patient] [d]oing fine no headaches for the last 7 [months] she — is separated for the last 7 months, she feels she is under less stress since separation.

The trial court thus opined that the headaches and head pain complained of prior to the May 27, 1993, accident had completely resolved, and that Ms. Martin’s injuries complained of in this suit were indeed caused by the May 27 slip and fall. A thorough reading of Dr. Mohnot’s deposition reveals that Ms. Martin reported to him on March 3, 1988, that she had sporadic headaches which were relieved with the use of extra-strength Tylenol. Dr. Mohnot did not attribute these particular ^headaches to a fall Ms. Martin suffered in 1986. In September of 1988, Ms. Martin reported that her headaches were better, and in October of 1989, she reported the headaches were much better. Ms. Martin saw Dr. Mohnot again in May of 1990, and told him she was seeing another physician for neck and shoulder pain, but she rarely experienced headaches. In January of 1991, Ms. Martin did report having daily headaches, but when she returned to Dr. Mohnot’s office in February of 1993, she had no complaints of headache.

The decision by the trial court to attribute Ms. Martin’s complained of injuries to the May 27 accident is based on a finding of fact. This finding of fact is supported by record evidence. As such, this Court should not upset the trial court’s findings of fact unless they are manifestly erroneous or clearly wrong. Stobart, supra; Rosell, supra. Accordingly, we find no error in the trial court’s ruling on this issue.

In their last assignment of error, defendants assert that the trial court abused its discretion in awarding $466,500 in general damages for the injuries allegedly sustained.

The judgment rendered by the trial court was a lump sum award, that is, the elements of the award were not broken down. In her petition, Ms. Martin made claims for past and future medical expenses, past and future lost wages and/or loss of wage earning capacity, and past and future physical and mental anguish, pain and suffering, anxiety, humiliation, embarrassment and loss of impairment to enjoy life’s pleasures.

The fact finder has great discretion in determining the amount of damages, and appellate courts should rarely disturb such an award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993). It is well settled that a lump |ssum judgment is presumed to award all items of damages claimed. Bryan v. City of New Orleans, 98-1263, p. 2 (La.1/20/99), 737 So.2d 696, 697-98. The appellant’s burden of proving the fact finder clearly abused its great discretion is more difficult than usual because the intention to award a specific amount for any particular item is not readily ascertainable. Id., 98-1263 at p. 3, 737 So.2d at 698.

The only element of damage claimed by Ms. Martin that can be definitively determined is her claim for past medical expenses totaling $63,448.59. A review of the medical bills reveals that there are some questionable expenses that could possibly be unrelated to the accident in question. However, because the trial court awarded a lump sum, it is not possible to ascertain whether or not the trial court awarded the full amount of past medicals claimed or whether it excised any expenses it deemed unrelated.

The remaining damages claimed by Ms. Martin include a claim for past and future lost wages and/or loss of wage earning capacity. Ms. Martin testified she was netting $400 per week at her last place of employment. Since the time of the accident, she has been unable to work, a claim substantiated by medical testimony.

A claim for loss of earnings need not be proven with mathematical certainty, but only by such proof as reasonably establishes the claim. Trunk v. Medical Ctr. of Louisiana, 2003-0275, p. 8 (La.App. 4 Cir. 12/17/03), 863 So.2d 675, 682. Thus, the question for the trial court is what plaintiff might have been able to earn but for his injuries and what he may now earn given his resulting condition. Id.; Finnie v. Vallee, 620 So.2d 897, 900 (La.App. 4 Cir. 5/27/93). The plaintiffs earnings at the time of the accident are relevant but not necessarily indicative of a past or future earning, capacity. Richardson v. O’Byrne, 2000-2202, 2001-1697, 2002-0753, p. 15 (La.App. 4 Cir. 10/16/02), 830 So.2d 1013; Finnie, supra.

19InitiaIly, it is impossible to determine from the lump sum award if the trial court awarded past lost earnings, future lost earnings, or a loss of earning capacity. However, there was sufficient unrebutted evidence in the record to support the fact that Ms. Martin was earning $400 per week net prior to this incident. There was also uncontradicted medical testimony that she is unable to return to work at this time. Accordingly, we cannot disturb the damages award on this issue.

The remaining elements of damages claimed by Ms. Martin are general in nature. It is well settled that a trier of fact is granted much discretion in the award of general damages, i.e., those that may not be fixed with any degree of pecuniary exactitude but that, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or life-style. Gresham v. Production Management, Inc., 2002-1228, p. 11 (La.App. 4 Cir. 2/11/04), 868 So.2d 171, 179; Boswell v. Martin Lumber Co., Inc., 363 So.2d 506 (1978). As stated above, appellate review of awards for general damages is limited to determining whether the trier of fact abused its vast discretion. Youn, supra.

' After reading the record in its entirety, this Court is of the opinion that the award to Ms. Martin is excessive. Ms. Martin’s testimony revealed that she could remember some incidents without difficulty, and, indeed, with tremendous detail and specificity. However, when attempts were made to challenge her credibility such as questions about prior testimony or histories given to treating physicians, she consistently claimed she could not remember. Despite our reservations concerning the excessive nature of the award, however, because the award was a lump sum and in light of the above standards of review for the individual elements |inof damage, we are bound to not disturb the award. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

hON REHEARING GRANTED

The rehearing is granted with the following comments.

“This Court notes that we do not know how much the trial court awarded in each category of damages. While we agree that there are medicals in evidence that are clearly not related to the accident in question, this Court is unable to determine if the trial court awarded the total medicals presented, or excised those amounts that were unrelated. Likewise, we cannot determine what the trial court awarded for lost earnings, if it awarded anything at all. We are, therefore, not in a position to reduce any one element of damages. This quandary in which we are placed, however, must be addressed by the legislature by changing the rules of civil procedure to prohibit trial court’s from rendering lump sum awards.”

/s/ David S. Gorbaty DAVID S. GORBATY, Judge

/s/ Edwin A. Lombard EDWIN A. LOMBARD, Judge

/s/ Cannizzaro, J., concurs in part LEON A. CANNIZZARO, JR., Judge

[ t CANNIZZARO, J.,

concurs in part.

I concur in part, in the granting of the appellants’ application for rehearing. Regarding our June 16, 2004 opinion, I agree with our affirming the trial court’s judgment on liability. However, upon reconsideration of the issue of damages, unlike the majority, I would remand the case to the trial court for an expressed categorization of the damages awarded in order to fully address the issue. I believe that where the evidence in the record clearly supports the finding that a lump sum damage award is excessive, as in this case, a remand for the purpose of having the trial court categorize the damages in necessary. Only then can we, the appellate court, give meaningful review to the appellants’ claim that the damages awarded are excessive.

      . The petition names Charles Healy, II, as a defendant. However, the answer filed on behalf of defendants is on behalf of Charles Healy, III. Mrs. Mary Healy, Charles' wife, testified that his correct name is Charles Healy, II. For purposes of this opinion we will refer to the defendants collectively as "defendants.”


author: I-i JAMES F. McKAY III, Judge.

text:
    Cathy FOREST v. Jean HILLER, North American Fire & Casualty Insurance Company, Stephen Moore, USAA Casualty Insurance Company, Garry Moore and Shelter Mutual Insurance Company.
    No. 2003-CA-1999.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 23, 2004.

      Vallie Schwartz, Morris Bart, PLC, New Orleans, LA, for Plaintiff/Appellee.
    Timothy G. Schafer, Schafer & Schafer, New Orleans, LA, for Defendants/Appellants Stephen Moore and USAA Casualty Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR.).
   I-i JAMES F. McKAY III, Judge.

The defendants, Stephen Moore and his insurer, USAA Casualty Insurance Company, appeal from a jury’s verdict which found Stephen Moore forty percent (40%) at fault in causing the plaintiffs, Cathy Forest, injuries. We affirm.

FACTS AND PROCEDURAL HISTORY

Garry Moore and his girlfriend, Carrie Tabb, were en route home from Florida on the evening of May 18, 2000, when his vehicle began to experience problems near Slidell. Garry Moore exited the Interstate at the next exit and pulled into a gas station. After stopping the car, Garry Moore was unable to restart the engine. He then telephoned his older brother, Stephen Moore, between 9:00 p.m. and 9:30 p.m. for assistance.

When Stephen Moore arrived at the gas station, Garry Moore explained to his brother that the car’s battery had died. Stephen Moore suggested that they jump-start the vehicle. After jump-starting the vehicle, they then re-entered the interstate and later exited again at Chef Menteur Highway, where the car again would not start on its own and was jump-started for a second time. They then re-entered the interstate. As Garry Moore’ vehicle neared the high rise, it again had problems. Ultimately, the car stalled out and died near the crest of the high rise. [ ^Traffic was steady that night and there was no shoulder where the car died. Stephen Moore pulled up directly behind Garry Moore. Garry Moore exited his vehicle and then proceeded to walk down the high rise to alert traffic of the stopped vehicles; Stephen Moore also exited his vehicle and began using his cell phone, standing on the ledge just behind the stopped cars.

A cab driven by Jean Hiller and in which Cathy Forest was a passenger entered the interstate from the Downman Road entrance. The cab rear-ended Stephen Moore’s vehicle which was pushed into Garry Moore’s vehicle. As a result of the collision, Cathy Forest’s head hit the windshield and she suffered several facial lacerations.

On May 8, 2001, Cathy Forest filed suit against Jean Hiller, his insurer, North American Fire & Casualty Insurance Company, Stephen Moore, his insurer, USAA Casualty Insurance Company, Garry Moore, and his insurer, Shelter Insurance Company. The matter was tried before a jury on April 21-24, 2003. The jury made the following findings: Stephen Moore was negligent; Stephen Moore’s negligence was a cause in fact of Cathy Forest’s injuries; Jean Hiller was negligent; Jean Hil-ler’s negligence was a cause in fact of Cathy Forest’s injuries; Garry Moore was negligent; Garry Moore’s negligence was a cause in fact of Cathy Forest’s injuries; Stephen Moore was 40% at fault; Jean Hiller was 42% at fault; Garry Moore was 18% at fault; Cathy Forest sustained $10,000 in past medical expenses; Cathy Forest sustained $100,000 in past and future physical pain and suffering; and Cathy Forest sustained $150,000 in past and future mental anguish including disfigurement. It is from this judgment that Stephen Moore and USAA Casualty Insurance Company appeal.

^DISCUSSION

The appellants raise the following assignments of error: 1) the trial judge erred when she refused to charge the jury on the law pertaining to a rescuer; 2) the trial judge erred when, by refusing to charge the jury on the rescuer doctrine, she in effect directed a verdict on that issue and removed from the jury the determination of whether Stephen Moore was a rescuer; and 3) the jury’s factual finding of the fault on the part of Stephen Moore is manifestly erroneous.

The appellants requested a jury instruction that a rescuer is favored in the eyes of the law and is not chargeable with negligence because he failed to make the wisest choice to accomplish the purpose. In determining whether a jury charge is proper, the law is clear that the instruction must be a correct statement of the law and the instruction must be predicated upon the introduction of some evidence put forth in the case on that issue. Ferrell v. Fireman’s Fund Ins. Co., 635 So.2d 1152 (La.App. 4 Cir.1994), rev’d in part on other grounds 650 So.2d 742 (La.1995), citing Jackson v. West Jefferson General Hospital, 245 So.2d 724 (La.App. 4 Cir.1971). Jury instructions are adequate when they fairly and reasonably point up the issues and provide the correct principles of law for the jury to apply to those issues. Walker v. Bankston, 571 So.2d 690 (La.App. 2 Cir.1990). A rescuer is defined as “someone who makes some effort or takes some action to protect the personal safety of another who was or appeared to be in imminent peril.” Ferrell at 1155.

In the instant case, Stephen Moore initially met up with his brother at a gas station (a reasonably safe location) where they jump-started Garry Moore’s car for the first time. They then put the vehicle on the interstate (not as safe a locale as a gas station). After traveling some distance on the interstate, they exited and stopped Garry Moore’s vehicle and tried unsuccessfully to restart it. They then 14proceeded to jump-start the vehicle again and re-enter the interstate, where the vehicle stalled near the crest of the high rise. Garry Moore was not in a position of imminent peril when his brother found him. It was only later when the vehicle stalled on the high rise that Garry Moore found himself in a position of imminent peril. Just as the First Circuit observed in Bangs v. GEICO, 387 So.2d 1323 (La.App. 1 Cir.1980), “this is not a case where a person has acted upon a sudden impulse in coming to the aid of a person in immediate danger and application of the rescuer or Good Samaritan doctrine is not warranted.” As such we find no error in the trial judge’s refusing to charge the jury on the law pertaining to a rescuer. Furthermore, we find the appellants’ charge that the trial judge in effect directed a verdict on this issue to be without merit.

The appellants contend that the jury’s factual finding of fault on the part of Stephen Moore was manifestly erroneous. An appellate court shall not set aside the findings of fact of a jury in the absence of manifest error or unless the findings of fact are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The scope of appellate review of findings of fact is extremely limited considering the wide latitude given to jury findings and the limited scope of appellate review. Stobart v. State, 617 So.2d 880 (La.1993).

La. R.S. 32:141 imposes a two-fold duty on the drivers of vehicles stopped on a highway: to remove the vehicle as soon as possible and to protect traffic until the vehicle is removed. Whether a party has discharged his obligation to protect traffic is a question of fact depending on the circumstances. See Poland v. Glenn, 623 So.2d 227 (La.App. 2 Cir.1993). In the instant case, Stephen Moore stood behind his stopped vehicle and called for help on his cell phone but took no |smeasures to alert oncoming traffic of the obstacle on the highway. Stephen Moore also played an instrumental role in creating the hazard in the first place.

In comparing the relative fault of the parties, several factors are considered, including: (1) -whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought. Watson v. State Farm, 469 So.2d 967 (La.1985). Once the jury has made a determination as to the apportionment of fault, any allocation of fault within an acceptable range cannot be considered clearly wrong. Riley v. Reliance Ins. Co., 97-0445 (La.App. 4 Cir. 11/19/97), 703 So.2d 158. In the instant case, the jury apportioned 40% of the fault for the accident to Stephen Moore. Based on the facts of this case, we cannot find that this allocation was clearly wrong.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the court below.

AFFIRMED.


author: i ¡.McClendon, j. |,PETTIGREW, J.,

text:
    Jose J. MARTINEZ v. BOH BROS. CONSTRUCTION.
    No. 2003 CA 1718.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Rehearing Denied Aug. 31, 2004.

      Michelle Sorrells, Baton Rouge, Counsel for Appellee Jose J. Martinez.
    Richard Vale, Pamela Nova, Metairie, Counsel for Appellant Boh Bros. Construction.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   i ¡.McClendon, j.

In this workers’ compensation case, the employer appeals, asserting solely that the Office of Workers’ Compensation erred in awarding benefits as the employee intentionally made fraudulent statements to obtain benefits in violation of LSA-R.S. 23:1208. For the following reasons, we reverse.

On July 16, 2001, Jose Martinez, a carpenter working for Boh Bros. Construction Company, allegedly injured his right shoulder while removing nails from pieces of wood. On February 23, 2002, Martinez filed a disputed claim for compensation with the Office of Workers’ Compensation. After hearing the matter, the workers’ compensation judge rendered judgment in favor of Martinez and against Boh Bros., awarding Martinez wage and medical benefits. Boh Bros, appeals, asserting that the workers’ compensation judge erred in concluding that Martinez did not intentionally make fraudulent statements to obtain benefits violation of LSA-R.S. 23:1208.

Louisiana Revised Statute 23:1208 provides, in pertinent part, as follows:

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

Louisiana Revised Statute 23:1208 was intended to prevent and discourage fraud in workers’ compensation cases by use of harsh penalties. See Newman v. Richard Price Const., 02-0995 p. 4 (La.App. 1 Cir. 8/8/03), 859 So.2d 136, 140; Issa v. L.L. & G. Const., Inc., 02-1215 (La.App. 1 Cir. 3/28/03), 844 So.2d 912, 917, writ denied, 03-1875 (La.10/31/03), 857 So.2d 480. The broadly worded statute encompasses false statements or misrepresentations made by anyone, including the employer, physicians, or insurers, when made willfully or deliberately for the purpose of obtaining benefits. The statute contains no requirement that an employee be put on notice of the consequences of making false statements or representations. Resweber v. Haroil Construction Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. LSA-R.S. 23:1208 applies in all circumstances where (1) there is a false statement or representation, (2) the statement or representation was willfully made, and (3) the statement or representation was made for the purpose of obtaining or defeating any benefit or payment. Resweber, 94-2708 at p. 7, 660 So.2d at 12.

Boh Bros, conducted video surveillance of Martinez on January 17, 2002 and February 7, 2002. On both dates, Martinez was videotaped at his residence cutting small pieces of wood with an ax. Boh Bros, deposed Martinez on May 31, 2002. During his deposition, Martinez stated that he could move his right arm and shoulder, but that it was painful to do so. On two occasions during that deposition, the attorney for Boh Bros, asked Martinez if he could chop wood. Each time, Martinez replied, “No, sir.” Additionally, Martinez testified that he could participate in no physical activity that required using his right shoulder and arm in a swinging motion, such as playing baseball or golf, swinging a sledge, or chopping wood.

At trial, the attorney for Martinez asked him why he denied chopping wood during his deposition. Martinez replied,

Well, at that time, the wood was the furthest thing away from my mind. I had other things on my mind, and I wasn’t even thinking of the wood. He was asking me if I played ball, this or that, golf, tennis and hunt, chop trees and wood, and all this come up. I kept saying no, no, no. Before I knew it, I wasj — wood4 was the furthest thing away from my mind. I wasn’t even thinking of wood.

In response to additional questions by his attorney, Martinez then stated that he did not remember chopping wood when he denied doing so during his deposition.

On cross-examination, when confronted with the inconsistency between his deposition testimony and the surveillance tapes, Martinez replied,

I said I never considered it, what I was doing, chopping wood. It didn’t occur to me what I wasn’t really chopping wood, not to me, no. Chopping wood is when you go out there and get your tree or cut a tree, and you chop the wood all the way down with an ax. That’s chopping wood. Where you’re just chopping up little pieces or whatever, that’s not chopping wood to me, so it never occurred to me about that.

Clearly, the three elements required for forfeiture of benefits pursuant to LSA-R.S. 23:1208 exist in the instant case. Martinez stated in his deposition that he did not chop wood. It is clear from the testimony that Martinez understood the question. However, when faced with surveillance tapes to the contrary at trial, he admitted that he chops wood frequently when he needs it to heat his home. Martinez’s deposition statements clearly constitute willful statements made for the purpose of obtaining workers’ compensation benefits. Therefore, the workers’ compensation judge erred in awarding benefits to Martinez. Martinez answered this appeal, seeking additional attorney’s fees on appeal. Considering the above, additional attorney’s fees are clearly not merited.

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is reversed. Judgment is rendered in favor of Boh Bros., dismissing the claimant’s action for workers’ compensation benefits. Costs are assessed against Jose J. Martinez.

1 .REVERSED.

DOWNING, J., concurs.

PETTIGREW, J., dissents.

|,PETTIGREW, J.,

dissenting.

I find no manifest error in the findings of fact of the trial court. The Trial Court had the opportunity to Judge the demean- or and credibility of the plaintiff and found him credible. I would affirm the Judgment of the Trial Court.