author: |, AMY, Judge.

text:
    LACASSANE COMPANY, INC. & Waterfowl Limited Liability Company v. JARDIN MINERALS COMPANY.
    No. 02-1491.
    Court of Appeal of Louisiana, Third Circuit.
    May 28, 2003.

      Robert L. Cabes, Milling Benson Woodward, L.L.P., Lafayette, LA, for Defendants/Appellants: Jardín Minerals Company Bruiere Mineral Company.
    Richard E. Gerard, Jr., Carl Eston Sin-gletary, Jr., Scofield, Gerard, Veron, Sin-gletary & Pohorelsky, Lake Charles, LA, for Plaintiffs/Appellees: Lacassane Company, Inc. Waterfowl Limited Liability Company.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   |, AMY, Judge.

These consolidated matters concern a partition by licitation of mineral interests owned by the parties. The Bel Mineral case presents the question of whether the parties hold interests in common giving rise to the right of partition. On consideration of a motion for partial summary judgment, the trial court concluded that interests are held in common, namely the right to explore for, develop and reduce to possession and ownership the minerals in and under the parties’ ancestral property. The trial court found this common interest rendered partition by licitation appropriate. The plaintiffs’ authority to proceed with the partition was confirmed. In the Lacassane case, the trial court considered the question of whether a conveyance of executive interests by a co-owner of the single servitude at issue in that case would survive a partition of the servitude. The trial court concluded that the interests would not survive, unless the servitude was purchased at the partition by the owner of the servitude at the time the executive interests were created. The defendants appeal the ruling in each matter.

Factual and Procedural Background

The parties in these consolidated actions are descendants of John Albert Bel and Della Moeling Goos Bel, who according to stipulations entered in this matter “acquired significant timberlands and commercial properties in Southwest Louisiana in the latter part of the 19th Century and the first part of the 20th Century.” One of the Bels’ daughters, Katherine Bel Gard-iner Hanszen, acquired a separate piece of property in Cameron Parish in 1929, which is relevant in the companion case to this consolidated matter. Partition by licitation is at issue in each case. We first set forth the factual background of the two matters.

\?Bel Mineral, LLC, et al. v. Baal Land Corporation, et al.

The Bel Mineral matter involves the property acquired by the parties’ ancestors, John and Della Bel. The significant acreage acquired by the Bels was left in ordinary, undivided ownership to the couple’s descendants. Through the years the family members formed trusts/corporations for the management of their respective shares of the property, some creating trusts/corporations for the separate management of the surface and mineral interests.

In 1998, the descendants sold the surface rights to a large tract of the family property to Griffin Logging. The mineral rights, however, were retained. The sale and reservation were completed through a number of documents. The plaintiffs, who hold the majority interest (referred to as an eight-ninths interest) in the servitudes at issue, formed Bel Mineral, LLC in order to manage the mineral rights. The limited liability company was formed through contributions of the family members. The other descendant, Katherine Brewer, who holds the remaining interest (referred to as a one-ninth interest), did not join Bel Mineral. Although Mrs. Brewer’s interest in the ^surface rights was transferred to Griffin Logging, she transferred her interest in the minerals to Baal Minerals, Inc. In 1999. Mrs. Brewer formed Bruiere Minerals Company, transferring to it the executive and royalty rights on the mineral servitude held by Baal Minerals.

The parties to this partition action disagree over the legal classification of the mineral interests resulting from the various transfers described in the title stipulations. Also, throughout the title stipulations there are recapitulations and charts showing each party's interest, both surface and minerals, in the properties that are subject to this partition suit. Although the parties agree that those recapitulations and charts accurately show each party’s aggregate ownership, both surface and mineral, in the properties, the parties do not agree as to the legal effect of each party’s ownership. In particular, the parties do not agree whether the parties’ ownership of mineral rights constitute a "common ownership” of a "thing” within the meaning of those phrases in the Louisiana Civil Code or the Louisiana Mineral Code. The parties reserve the right to argue the legal classification of the mineral interests described in the title stipulations and the legal effect of each party's ownership of those mineral interests.

The plaintiffs filed a Petition for Partition by Licitation on February 4, 2000, alleging that Bel Mineral owns an undivided majority interest in the minerals, mineral rights, and mineral servitudes affecting the immovable property, which is scattered over several parishes. Baal Minerals, Bruiere Minerals, Katherine Brewer, and her husband, Ronald Brewer (collectively referred to as the Brewers) were named as defendants. The plaintiffs asserted that Bel Mineral and the Brewers, through various entities, own an undivided interest in the minerals, mineral rights, and mineral servitudes affecting that property. The plaintiffs sought partition by licitation due to a failure to agree on the joint management of the property. The plaintiffs asserted that the descendants share a joint right to explore for and develop the minerals underneath the ancestral property.

The Brewers contested the right to seek partition, asserting that the parties do not hold interests in common and, accordingly, there is no entitlement to partition. The Brewers asserted no interest is held in common, as various servitudes on the property resulted from the family members’ separate contributions to Bel Mineral during its creation and the fact that the sale to Griffin Logging was completed through various, and not identical, deeds. They also point out that the servitudes are on noncontiguous tracts of land.

|4The trial court granted the motion for partial summary judgment, concluding that the parties do not own undivided shares in a single servitude, but, instead, own many separate servitudes with varying origination dates and features. However, the trial court found that all of the interests held in these various servitudes are based on a commonly held right to explore for, develop, and reduce to possession the minerals of the property in its entirety. Therefore, the trial court granted the summary judgment, confirming “Bel Mineral’s authority to partition the right to explore for, develop and reduce to possession and ownership the minerals in, on and under the Bel Estate properties .... ”

Lacassane Co. v. Jardin Minerals

The companion matter involves a tract of land in Cameron Parish acquired in 1929 by Katherine Bel Gardiner Hanszen, a child of John and Della Bel. This property was sold to the Southwest Louisiana Farm Mortgage Company, at which time Mrs. Hanszen reserved an undivided one-half interest in the minerals and mineral rights. This servitude for the one-half interest has been known for purposes of this [ .^litigation as the Gardiner Servitude. Southwest Louisiana Farm Mortgage conveyed the property to Lacassane Company, Inc. The property was then conveyed to the United States of America, with Lacassane Company reserving the remaining one-half of the minerals and mineral rights. This second servitude has been known for purposes of this litigation as the Lacassane Servitude.

The Gardiner Servitude is what is at issue for purposes of this case. Through inheritance, Mrs. Brewer, her brother, and her uncle, each acquired a one-third interest in the Gardiner Servitude. While Mrs. Brewer’s one-third interest was transferred to Jardín Minerals Company, the remaining two-thirds interest was transferred to Waterfowl, LLC. At some point, Mrs. Brewer granted the executive and royalty rights of Jardín Minerals’ one-third interest to Bruiere Minerals Company.

|fiThe Lacassane matter was instituted when Lacassane Company and Waterfowl filed a Petition for Partition by Licitation, seeking partition of the Gardiner Servitude. As the matter involved a co-owned servitude, that owned by Waterfowl and Jardín, the issue before the court was whether the executive interests granted to Bruiere Minerals would survive the partition. The Brewers contended that the executive interests granted are real rights and will survive a partition.

Although the matter was brought by both Lacassane and Waterfowl, pursuant to a Motion to Withdraw as Plaintiff without Prejudice, Lacassane Company was permitted to withdraw from the litigation. Accordingly, only the issue regarding the partition of the Gardiner Servitude remained before the court. The Brewers, through Jardín Minerals and Bruiere Minerals, filed a motion for summary judgment asserting that the executive and royalty rights will survive partition. The motion was denied. Subsequently, Waterfowl filed a cross motion for summary judgment seeking the partition and, through that partition, the termination of the executive interests granted to Brui-ere.

The trial court granted the summary judgment, concluding that the Civil Code dictates that the “executive rights ... will only survive the partition if the purchaser at the partition sale is also the present owner of the servitudes burdened by the executive right.”

The Brewers appeal in each case, assigning the following as error:

1. The trial court erred, in holding that the owners of admittedly separate and distinct mineral rights, are entitled to seek partition of what the court deemed to be a common “thing,” i.e., the right to explore for, develop and produce minerals. Such ruling is expressly contradictory to Louisiana law. LSA-R.S. 31:169.
2. The trial court erred in holding that the rights of Bruiere would be affected by any partition which was ordered by the court. LSA-CC Art. 812.
|73. In light of its holding described in the first assignment of error, the trial court erred in holding that Lacassane could voluntarily withdraw without prejudice from the suit it filed, after answer. LSA-CCP Art. 1671.

Discussion

Bel Mineral

The Brewers question the trial court’s conclusion that separate servitudes exist, but that the parties also share a common right to explore for and reduce to possession and ownership the minerals on the ancestral property in general. They contend that a finding of separate servitudes precludes a finding of co-ownership or commonality of interests. Without such a commonality of interest, they argue, there is no right to partition. In particular, they assert that La.R.S. 31:169 indicates that co-ownership, and therefore partition, is not permissible in this instance. Entitled “Those who are not co-owners of mineral rights,” La.R.S. 31:169 provides:

Co-ownership does not exist between the owner of a mineral right and the owners of the land subject to the right or between the owners of separate mineral rights.

(Emphasis added.) The Brewers do not dispute that the land was originally held by the family members in ordinary, undivided ownership. However, they contend that only “separate mineral rights” can be found to exist due to the noncontiguous nature of the tracts of land on which the servitudes are held, the various conveyances establishing Bel Mineral, and the completion of the sale of surface interests to Griffin Logging through various deeds.

The plaintiffs disagree, asserting that the joint fashion in which the property was inherited by the parties created a joint right to explore and reduce to possession Land ownership. They contend that the various unilateral actions by the individual parties in transferring various rights has not destroyed this common right.

In ruling, the trial court framed the question at issue as follows:

The court is in agreement with the conclusionary statements of the motion. The parties do not own undivided shares of a single mineral servitude but do, in fact, own many separate servitudes, with different dates of origination and other different features. Nevertheless, all of the mineral rights discussed herein rest upon the Louisiana concept of a mineral servitude which is the right to explore for, develop and reduce to possession the minerals underlying a tract of land. It, thus, becomes solely this question of law which the court must decide: Can owners of the right to explore, develop and reduce to possession under a certain tract seek partition by licitation even though the rights are not identical? (No one takes the position that this partition can be “in kind”).

In our consideration of this matter, we first turn to the principles of the Louisiana Civil Code and the Mineral Code. La.R.S. 31:2 sets forth the framework for application of the Mineral Code, instructing:

The provisions of this Code are supplementary to those of the Louisiana Civil Code and are applicable specifically to the subject matter of mineral law. In the event of conflict between the provisions of this Code and those of the Civil Code or other laws the provisions of this Code shall prevail. If this Code does not expressly or impliedly provide for a particular situation, the Civil Code or other laws are applicable.

|9The relationship between the Mineral Code and the Civil Code, described above, is illustrated in Steele v. Denning, 456 So.2d 992 (La.1984). Although Chapter Ten, Part Three of the Mineral Code addresses “Partition of Land and its Effect on Mineral Rights,” the Louisiana Supreme Court observed in Steele that the statutes making up Part Three do not indicate who has a right to initiate a partition in an instance where land is burdened by a mineral right. Rather, the articles address only the procedure to be followed. The supreme court further noted that the Mineral Code “presupposes the right to partition, as provided in the Civil Code, and only specifies the procedures to be employed in effecting the partition (i.e., ‘[i]f the owner of a mineral right or interest therein is made a party to an action for partition of the land subject to his right-’ La.R.S. 31:180).” Id. at 996.

The principles of the Civil Code were found to be authoritative when, as in Steele, the Mineral Code does not specifically address whether a person owning an undivided interest in land, without associated mineral rights, has a right to seek partition by licitation of both the land and the mineral rights. Steele, 456 So.2d 992. The supreme court observed that the Civil Code provides for partition so that owners of a thing in common can do nothing against the desires of the co-owner of a thing. Id. “Consequently, when co-owners cannot agree upon the use of their property, partition is the relief provided by the Civil Code.” Id. at 997.

The supreme court noted, however, that, under then La.Civ.Code art. 1289, the demand for partition must involve a “thing held in common.” Steele, 456 So.2d 992. The court concluded that a plaintiff owning an interest in land without the attendant right to explore for minerals and reduce them to possession/ownership, does |innot hold in common any mineral rights with either a defendant who owns the mineral servitude or a full interest co-owner, who also retains the right to explore for minerals. Referencing the principle that Louisiana does not recognize a separate estate in minerals, established in both the jurisprudence and La.R.S. 31:6, the supreme court further stated:

That does not, however, change the fact that the creation of a mineral servitude effectively fragments the title such that different elements of ownership are held by different owners (i.e., between the landowner and the mineral servitude owner), and there is not any “thing held in common” between them. Defendant [ ], a mineral servitude owner, and all of the other defendants herein, own the right to explore for minerals and reduce them to possession and ownership. La. R.S. 31:21. Plaintiffs own only an interest in the land, specifically without the right (in common with defendants) to explore for minerals and reduce them to possession and ownership.

Id. at 998-99. This concept is reflected in La.R.S. 31:169, which provides that “Co-ownership does not exist between the owner of a mineral right and the owner of the land subject to the right or between the owners of separate mineral rights.” It is this portion of the Mineral Code which the Brewers contend prohibits partition in this case. They argue that only “separate mineral rights” are owned in the present case.

While the fact situation addressed by the supreme court in Steele is reflected in La.R.S. 31:169, the question of differing estates is not the one faced by this court in the present case. Steele does not address whether various servitudes constitute ^“separate mineral rights” under the terms of La.R.S. 31:169. Rather, Steele is important for the following proposition:

[T]he Mineral Code does not create the right to institute a partition action. Rather, it is the Civil Code which creates the right. The Mineral Code merely deals with the procedure for partitioning mineral rights where the right to do so is otherwise provided for. Where there is such a right, plaintiffs are correct that the Mineral Code provides that the mineral rights may be partitioned with the land if the mineral right owner is made a party to the action.

Steele, 456 So.2d at 999.

Given this framework, we turn to the Civil Code for general direction regarding the right to partition. To begin, Article 797 of the Civil Code provides for ownership in indivisión or co-ownership. Furthermore, Article 807 of the Civil Code provides for remedy by partition for co-owners, stating:

hi.No one may be compelled to hold a thing in indivisión with another unless the contrary has been provided by law or juridical act.
Any co-owner has a right to demand partition of a thing held in indivisión. Partition may be excluded by agreement for up to fifteen years, or for such other period as provided in R.S. 9:1702 or other specific law.

Speaking as to the favorable treatment afforded the right of partition, the supreme court in Campbell v. Pasternack Holding Co., Inc., 625 So.2d 477, 480 (La.1998) (citations and footnote omitted), explained:

The need to partition stems from the inconvenience of co-management, namely the requirement of unanimous consent of co-owners in managing commonly held property. With certain exceptions, each owner has the right to oppose the use of the property by the other. Consequently, co-owners who cannot agree on the use of the property are by the Civil Code specifically afforded the right to seek partition. Needless to say, then, partition is favored under Louisiana law and this Court’s jurisprudence.

Important for our consideration in the present case is the supreme court’s observation that: “The right to partition rests on the parties holding interests in common. This commonality is the sine qua non for a co-owner’s right in this regard.” Id. We also note that La.R.S. 31:172 specifically provides that: “Mineral servitudes and royalties are subject to partition.”

In Campbell, 625 So.2d 477, a case relied upon by the Bel Mineral plaintiffs, the supreme court found that a co-owner of an undivided interest in property without mineral rights could demand partition of the land only. This was found to be true, even though some of the co-owners held title in both the land and the mineral rights. | isThe defendants asserted in that case that there was no commonality of interest as different estates were held by the parties. While true that the case did not involve the partition of mineral rights, the supreme court ordered partition when the plaintiff inherited the right to partition from her ancestor in title. The independent acts of the co-owners were not found to have extinguished this right. The supreme court noted that “limitations on the right to partition, and laws in derogation of established rights, are to be strictly construed.” Id. at 483.

In our determination of whether the parties have common interests, we turn to consideration of the rights held. The Title Stipulations provide the court with a history of the transfers associated with the property and the creation of the servitudes at issue. The property is described in various exhibits to the stipulations. On each of these parcels of land, the parties are designated as owners, .in varying percentages and entities. Importantly, in every instance, Bel Mineral and the Brewers, in some capacity, own an interest in a percentage of the minerals. These separate servitudes, recognized by the trial court, and acknowledged by the parties, were created by various parties and through different instruments. However, they were not created by all of the family members acting together. Thus, according to La.R.S. 31:164, the rights of those servitudes cannot be exercised without the consent of fellow co-owners. The statute provides:

A co-owner of land may create a mineral servitude out of his undivided interest in the land, and prescription commences from the date of its creation. One who acquires a mineral servitude from a co-owner of land may not exercise' his right without the consent of co-owners owning at least an undivided eighty percent interest in the land, provided that he has made every effort to contact such co-owners and, if contacted, has offered to contract with them on substantially the same basis that he has contracted with another co-owner. A co-owner of the land who does not consent to the exercise of such rights has no liability for the costs of development and operations, except out of his share of production.

| uThis statute demonstrates the concept that a unilateral action does not destroy shared rights and responsibilities of joint ownership or possession.

We find no indication in the Mineral Code, the Civil Code, or jurisprudence that a party, acknowledged to be a co-owner at some point in time, can unilaterally fractionalize his or her title thereby destroying the larger concept of joint ownership or possession. Absent this type of positive authority, we conclude that the transfers could not affect the right to partition attendant to the commonly held rights inherited by the parties. Accordingly, we find no error in the granting of the summary judgment or the trial court’s ruling that “Bel Mineral’s authority to partition the right to explore for, develop and reduce to possession and ownership the minerals in, on and under the Bel Estate Properties, which properties are identified in the Stipulations filed in this proceeding, are confirmed.”

Lacassane

This companion case addresses the partition of the Gardiner Servitude, described above in the factual background. The Gardiner Servitude is owned two-thirds by Waterfowl, LLC, and one-third by Jardín Minerals. Prior to the petition for partition, Jardin Minerals conveyed its executive rights and royalty rights to | ^Bruiere Minerals Co. At issue is whether the executive interests assigned to Bruiere will survive the partition. The basis of the Brewers’ argument stems from La. Civ. Code art. 812, which provides: “When a thing held in indivisión is partitioned in kind or by licitation, a real right burdening the thing is not affected.” They assert that the executive interests assigned to Bruiere should be viewed as real rights, ones that, by application of Article 812, will survive the partition.

Considering the Civil Code further, Article 815 provides that: “When a thing is partitioned by licitation, a mortgage, lien, or privilege that burdens the share of a co-owner attaches to his share of the proceeds of the sale.” Furthermore, Comment (b) of Article 815 indicates that:

This provision does not apply when a co-owner has consented to the establishment of a predial servitude on his undivided share or on the entire estate. In such a case, upon partition by licitation, the right granted by the co-owner may be extinguished or it may burden the whole of the estate.

It is clear in this case that the executive interests at issue were conveyed to Bruñ-ere Minerals upon that portion of the servitude owned by Jardín Minerals. This type of assignment could not affect the remaining interest in the servitude owned by Waterfowl.

Furthermore, La.Civ.Code art. 718 provides:

If the estate is partitioned by licitation and the co-owner who consented to the establishment of the predial servitude acquires the ownership of the whole, the servitude burdens the entire estate as if the co-owner had always been sole owner. If the entire estate is adjudicated to any other person the right granted by the co-owner is extinguished.

|1fiCiting this article, the trial court concluded that the executive interests in this case will be destroyed, unless the servitude is purchased by the owner of the servitude presently burdened by the servitude.

Our consideration of the above articles indicates that because the executive interests are rights created exclusively by the actions of the Brewers, through Jardín Minerals, and without consent of the remaining co-owner of the servitude, these rights will be extinguished by the partition. However, in the event Jardín Minerals purchases the entire servitude at the partition, La.Civ.Code art. 718 indicates that the assignment of executive interests ■will survive the partition.

Dismissal Without Prejudice

As seen from the factual background above, the Lacassane suit was instituted by the Lacassane Company, owning the “Lacassane Servitude” or one-half interest in [17the mineral and mineral rights of the Katherine Bel Gardiner Hanszen property, and by Waterfowl, LLC. Waterfowl owns two-thirds interest in the minerals and mineral rights of the Gardiner Servitude, which represents the remaining fifty-percent interest in the minerals and minerals rights of the Katherine Bel Gardiner Hanszen property. Jardin Mineral Company owns the remaining one-third interest in the Gardiner Servitude. Prior to the hearing on the matter, the plaintiffs filed a Motion to Withdraw as Plaintiff without Prejudice, seeking the withdrawal of Lacassane as a party and doing so in an attempt to prevent the Lacassane Servitude from being partitioned. It asserted in the motion that: “Lacassane and Waterfowl agree on the management and development of the mineral interests and rights in the northern part of the Refuge. They thus believe it will be sufficient if this Court partitions by licitation the mineral interests and rights co-owned by Waterfowl, Jardin and Brui-ere without reaching the question of whether Lacassane also is a co-owner.” The plaintiffs urged that the withdrawal be without prejudice. The Brewers opposed the motion, arguing that any dismissal should be with prejudice. The matter was heard prior to the hearing on the motion for summary judgment, with the trial court granting the dismissal without prejudice.

On appeal, the Brewers do not question the granting of the motion per se, but argue that the dismissal is inconsistent with the merits of the trial court’s ruling in Lacassane. It asserts that, if this court reverses the summary judgment granted in favor of the plaintiffs, the issue becomes moot. However, it contends that, if the 11ssummary judgment is affirmed in this court and the matter remanded, presumably for partition proceedings, then the appellants will be forced to seek compulsory joinder of Lacassane. The Brewers state in their brief to this court that: “[I]t is obvious that Lacassane would be an indispensable party to any partition of the mineral rights at issue in that suit, as those rights have been characterized by the trial court.” It contends that the trial court’s ruling that there is a common right to explore would follow through to this case, requiring that Lacassane own a common right to explore. It contends that Waterfowl cannot proceed with a partition by licitation on its own as it is not the full owner. The plaintiffs contend that, for this matter, the Gardiner and Lacassane Servitudes are completely separate servi-tudes, thus, no joint right to explore.

Again, there is no ruling from the trial court indicating anything other than that the Gardiner and Lacassane Servitudes are two completely separate servitudes. Lacassane does not allege to own any portion of the Gardiner Servitude. Lacassane holds no proportionate interest in any of the Gardiner Servitude, as there might be in the Bel Mineral case. This case differs from Bel Mineral, as the Lacassane Servitude was created by the full owner of the property while acting as the owner of the land in its totality. This matter should not be confused with the servitudes at issue in the companion case.

Furthermore, with regard to a motion for voluntary dismissal without prejudice filed after the appearance of a defendant, La.Code Civ.P. art. 1671 provides:

A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal with prejudice.

|19On the face of the article, the decision to dismiss a party without prejudice is left to the trial court’s discretion. Turner v. Leslie, 96-2288 (La.12/6/96), 684 So.2d 395.

We find no abuse of the trial court’s discretion in permitting Lacassane to withdraw from the suit without prejudice. As observed above, the trial court’s rulings on the two suits at issue are not to be confused. While the trial court found a common right to explore in Bel Mineral, no such shared right was found to exist in Lacassane. The dismissal is maintained.

DECREE

For the foregoing reasons, the partial summary judgment granted by the trial court in Lacassane Company, Inc., et al. v. Jardin Minerals Co., et al., is affirmed. All costs of this matter are assigned equally to the appellants, Jardín Minerals Co. and Bruiere Minerals Co.

AFFIRMED.

      . These consolidated matters have been discussed collectively under the docket number and heading of Lacassane Co., Inc. & Waterfowl LLC v. Jardin Minerals Co. For the decree related to the companion case,0 see Bel Mineral, LLC v. BAAL Land Corp., 02-1494 (La.App. 3 Cir.5/28/03); 2003 WL 21229604, 847 So.2d 716.

      . The facts of this matter are derived from the detailed stipulations entered into the record by the parties. The document, entitled "Bel Mineral, LLC Title Stipulations,” contains information regarding the chain of title of the each of the parcels at issue and the interests held by the parties. In doing so, the parties frame the question before the court, stating:

      . Prior to the conveyance to Griffin Logging, Mrs. Brewer held her interest in the surface right to the property through Baal Land Corporation.

      . The Mineral Code, La.R.S. 31:1, et seq., provides the following presumptions when servitudes are established on contiguous and noncontiguous tracts:
      § 63. Presumption arising from separate description of tracts forming continuous body of land
      A single mineral servitude is created by an act that affects a continuous body of land although individual tracts or parcels within the whole are separately described.
      § 64. Presumption when servitudes created on noncontiguous tracts
      An act creating mineral servitudes on noncontiguous tracts of land creates as many mineral servitudes as there are tracts unless the act provides for more.

      . The stipulations filed in the record indicate that the Gardiner Servitude was created in the sale of the Lacassane property as follows:
      It is understood and agreed that there is excepted from this sale and reserved by vendor an undivided one-half interest in all oil, gas and other minerals, and mineral rights in and under, and that may be produced from the above described lands, or any parts thereof, with rights of ingress and egress for purposes of exploration and development.

      . The property is now part of the Lacassane Refuge.

      . Lacassane Co., Inc., reserved the servitude as follows:
      Reserving unto vendor, its successors, legal representatives and assigns, and specifically excepting from this sale all the oil, gas, sulphur and other minerals in, on and under said land, together with the right of investigating, exploring!,] prospecting, drilling and mining for and producing said oil, gas, sulphur and other minerals, laying pipe lines, building tanks, roads and canals, power stations, telephone lines and other structures thereon to produce, save, take care of, treat, store, transport, and manufacture said minerals, and housing the employees necessary for said purposes, which rights shall remain in force for a term of ten years from date of the deed conveying said land and as long thereafter as oil, gas, sulphur or other minerals is produced from said land, or so long thereafter as vendor shall conduct drilling or reworking operations thereon with no cessation or more than sixty consecutive days until production results, and if production results, so long as such mineral is produced.

        Provided further that at the end of said ten year period or reservation, if not extended as hereinabove provided, or at the termination of any extended period in case the operations have not been carried on after said ten year period, as hereinabove provided, the right to mine, produce and market said oil, gas, sulphur and other minerals shall terminate at the end of said ten years, and the complete fee title to said land shall thereby become vested in the United States. Provided that forty per cent (40%) of one-eight (1/8) royalty of all oil, gas, sulphur and other minerals so removed shall be paid to the United States of America until the total royalties so paid to the United States shall equal the purchase price of $51,774.

      . The nature of a mineral servitude is described in the Mineral Code as follows: “A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.” La.R.S. 31:21.

      . The trial court continued, observing Civil Code and Mineral Code guidance, along with relevant jurisprudence, before concluding:
      The underlying rationale behind the right to partition is that it would be against public policy for property to be taken out of commerce and rendered unusable because of fragmented ownership. There is no logical reason why this principle should not also apply to mineral servitudes attached to a piece of land. Whenever servitudes become too numerous and fragmented, chances of development diminish or disappear altogether. Of course, if the multiple owners acted in concert, development would not be impeded but the law is practical in recognizing that human nature does not behave in such an ideal fashion. On the other hand, a purchaser at a sale by licitation, even if he buys servitudes of various ages and descriptions, would be able to coordinate the servitudes in order to realize a maximum potential of the mineral rights. For these reasons, the court concludes that the partition by licitation sought by the plaintiffs herein between the various servitude owners can proceed.

      . See now La.Civ.Code art. 807, which refers to a “thing held in indivisión.”

      . La.R.S. 31:6, entitled "Right to search for fugitive minerals; elements of ownership of land,” provides:
      Ownership of land does not include ownership of oil, gas, and other minerals occurring naturally in liquid or gaseous form, or of any elements or compounds in solution, emulsion, or association with such minerals. The landowner has the exclusive right to explore and develop his property for the production of such minerals and to reduce them to possession and ownership.

      . Similarly, the question posed in the present case is dissimilar to that in Starr Davis Oil Co. v. Webber, 218 La. 231, 48 So.2d 906, 907 (1950), a pre-Mineral Code case in which the supreme court posed the issue before it as:
      The primary question for determination is whether one having a fractional mineral interest is the coproprietor of the landowners, who have retained the remainder of the mineral rights, as it is essential to the action of partition that the parties thereto hold the property in common.
      Again, the ownership of different estates is not presently at issue. Rather, it is the possession of various mineral servitudes that is at issue.

      . In a footnote to the above portion of the Steele opinion, the supreme court remarked:
      Plaintiffs’ argument would be correct, for example, in this case, if a full owner of an undivided interest in the property, like Den-ning, had brought the partition action. Denning, being a full owner of the land (with the attendant mineral rights), holds elements of ownership in both the land and the mineral rights, and thus, owns "a thing held in common” with all of the other co-owners. As such, unlike plaintiffs here, she has the right to petition for partition by licitation of both the land and the mineral rights. Patrick v. Johnstone, 361 So.2d 894 (La.App. 2d Cir.1978). And then, "if ... the land is judicially partitioned” (La. R.S.31.-178), with which the mineral right owner being made a party to the partition action (La.R.S. 31:179 & 180), and the appropriate appraisals are made in accordance with law (La.R.S.31:180-184), the mineral right owner will share in the proceeds in proportion to the value of his interest (La.R.S.31:183) and his mineral rights would be extinguished by the sale of the property resulting from the partition action. La.R.S. 31:185.

        Steele, 456 So.2d at 999, n. 8.

      .La.Civ.Code art. 797 provides:
      Ownership of the same thing by two or more persons is ownership in indivisión. In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.

      . Although La.Civ.Code art. 810 provides for remedy by partition in kind, the parties agree that the appropriate remedy in this case, if any, is partition by licitation. La.Civ.Code art. 811 provides:
      When the thing held in indivisión is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale and the proceeds shall be distributed to the co-owners in proportion to their shares.

      . The executive right is defined in the Mineral Code as:
      The executive right is the exclusive right to grant mineral leases of specified land or mineral rights. Unless restricted by contract it includes the right to retain bonuses and rentals. The owner of the executive right may lease the land or mineral rights over which he has the power to the same extent and on such terms and conditions as if he were the owner of a mineral servitude.
      La.R.S. 31:105.

      . The right associated with a mineral royally is described as follows:
      A mineral royalty is the right to participate in production of minerals from land owned by another or land subject to a mineral servitude owned by another. Unless expressly qualified by the parties, a royalty is a right to share in gross production free of mining or drilling and production costs.
      La.R.S. 31:80.

      . La.Civ.Code art. 813 further states: "When a thing is partitioned in kind, a real right that burdens the share of a co-owner attaches to the part of the thing allotted to him.”

      . As we find it appropriate to do here, the trial court reviewed the relevant portions of the Civil Code, finding:
      On the basis that an executive right is classified as a real right, it is defendant’s position herein that Article 812 of the Civil Code would apply and that the executive right would survive a partition sale. The language of 812 is as follows: "When a thing held in indivisión is partitioned in kind or by licitation, a real right burdening the thing is not affected." A reading of all of the articles in that title, particularly Articles 813 through 815 show clearly that Article 812 contemplates a real right which burdens the entire thing held in indivisión. In this case, the executive right burdens less than the whole of the servitudes. According to Article 813, if the partition were in kind, the real right would attach to the share of the co-owner whose interest was already burdened. Article 815 provides that when the share of the co-owner is burdened by a mortgaged] lien[,] or privilege, those real rights will attach to his share of the proceeds of the sale. However, Article 718 of the Civil Code provides: "If the estate is partitioned by licitation and the co-owner who consented to the establishment of the predial servitude acquires the ownership of the whole, the servitude burdens the entire estate as if the co-owner had always been sole owner. If the entire estate is adjudicated to any other person, the right granted by the co-owner is extinguished.”
      It is the conclusion of this court that the executive rights which exist on some of the servitudes subject to this partition suit will only survive the partition if the purchaser at the partition sale is also the present owner of the servitudes burdened by the executive right. For these foregoing reasons, the motion for partial summary judgment is denied.

      . It is unclear whether the ruling on the dismissal was properly presented for appeal as the Motion for Appeal filed in Lacassane indicates that: "Defendants desire to appeal the Judgment of this Honorable Court granting the Cross Motion for Partial Summary Judgment filed herein by plaintiff, Waterfowl, LLC, with Notice of Judgment dated Septem-her 6, 2002.” The partial summary judgment was designated as a final judgment pursuant to La.Code Civ.P. art. 1915(B)(1). There is no indication that the dismissal, instituted by separate motion, was included in the September 6, 2002 ruling. For completeness, we have considered the dismissal argument.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    BEL MINERAL LLC, et al. v. BAAL LAND CORPORATION, et al.
    No. 02-1494.
    Court of Appeal of Louisiana, Third Circuit.
    May 28, 2003.
    Robert L. Cabes, Milling Benson Woodward, L.L.P., Lafayette, LA, for Defendants/Appellants, Katherine G. Brewer, Ronald F. Brewer, KGB/AM Trust, KGB/KL Trust, KGB/KB Trust, KGB/LE Trust, Baal Minerals, Inc., Baal Land Corporation, Bruiere Mineral Company.
    Richard E. Gerard, Jr., Carl Eston Sin-gletary, Jr., Scofield, Gerard, Veron, Sin-gletary & Pohorelsky, Lake Charles, LA, for Plaintiffs/Appellees, Beverly Paret, Bel Minerals, LLC, H.C. Drew Estate, Stream Family Ltd. Partnership.
    Thad Minaldi, Sulphur, LA, for Defen-dani/Appellee, J. Lawton Company.
    Lydia Ann Guillory-Lee, Lake Charles, LA, for Defendants/Appellees, James Knox White, Elsie Knox White Keller.
    A.J. Gray, III, Gray Law Firm, Lake Charles, LA, for Defendant/Appellee, Tower Land Company, Inc.
    Cecil R. Sanner, Lake Charles, LA, for Defendants/Appellees, Trustee of Marion Coffin Brooke Trust, Dorothy S. Brooke, Roy H. Donaldson, Jr.
    Hugh James Cunningham, Demourelle & Cunningham, Kinder, LA, for Defendants/Appellees, Yernice Lyles, Helen Glynn Lyles, Patsy Cavenah, James David Lyles, Bruce McFatter.

      Court composed of SYLVIA R. COOKS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

For reasons assigned in the companion case of Lacassane Co., Inc. v. Jardin Minerals Co., 02-1491 (La.App. 3 Cir.5/28/03); 847 So.2d 704, 2003 WL 21229567, the summary judgment granted by the trial court is affirmed. All costs of this appeal are assigned to the appellants, BAAL Land Corporation, BAAL Minerals, Inc., KGB/KB Trust, KGB/KL Trust, KGB/LE Trust, KGB/AM Trust, Bruiere Minerals Co., Ronald F. Brewer and Katherine G. Brewer.

AFFIRMED.


author: I JAMES L. CANNELLA, Judge.

text:
    STAR ENTERPRISE v. AMERICAN MANUFACTURES MUTUAL INSURANCE COMPANY and Lumbermens Mutual Casualty Company, National Union Fire Insurance Company of Pittsburgh, PA., Fisher Service Company and Fisher Service Controls International, Inc., John H. Carter Co., Inc., Zurich Insurance Company, Waitz & Donner and Flour Daniel, Inc., and JE Merit Constructors, Inc.
    No. 03-CA-189.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Rehearing Denied July 3, 2003.

      Windhorst, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Thomas L. Gaudry, Jr., Ken D. Brown, Gretna, LA.
    Robert E. Kerrigan, Jr., Allen F. Campbell, New Orleans, LA, for Appellee National Union Fire Insurance Company of Pittsburgh, PA.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   I JAMES L. CANNELLA, Judge.

The cross-claim Plaintiff, John H. Carter, Co., Inc. (Carter), appeals from a judgment denying its motion for summary judgment, dismissing its cross-claim and granting the motion for summary judgment filed by cross-claim Defendants, National Union Fire Insurance Company of Pittsburgh, PA (National Union), Fisher Services Company and Fisher Controls International, Inc. (Fisher.) We reverse both summary judgments and grant the summary judgment filed by Carter and deny the summary judgment filed by Fisher and remand.

Carter became a sales representative for Fisher on April 1, 1989. The terms of the agreement are set out in a Representative Agreement that was executed annually. The agreement included a provision in which Fisher would defend and indemnify Carter for Fisher’s acts. This was provided for in a vendor’s endorsement naming Carter as an additional insured under the policy of insurance issued to Fisher’s parent company. In 1992, Fisher was sold to Emerson Electric Corporation (Emerson). Emerson was unable to provide a vendor’s endorsement for Carter so the companies supplemented the Representative Agreement to cover the indemnity provision.

lain October of 1998, a fire occurred at a refinery which was owned and operated by Star Enterprise (Star), one of Carter and Fisher’s customers. In August of 1994, Star sued Fisher, Carter and several insurance companies, claiming that the fire was caused by defective welding of a control rod at the refinery. The fire allegedly occurred because of the presence of hydrogen sulfide in the lines. Star contended that Carter and Fisher failed to warn that the presence of hydrogen sulfide required the weld to be heat treated. On September 8, 1994, Carter demanded that Fisher provide it with a defense and for indemnity under the Representative Agreement. Two weeks later, Fisher sent a letter to Carter setting out the terms of their defense. Shortly after, the suit against Carter was dismissed as a non-suit. The parties agree that Carter was initially sued in its representative capacity, rather than for Carter’s own negligence.

National Union, Fisher’s insurer, was named as a Defendant in 1998. In January of 1999, Star filed a seventh petition bringing Carter back into the lawsuit. The petition alleged that both Fisher and Carter had a legal obligation to provide warnings, that Carter was jointly and solidarity liable with Fisher for its negligence, and alternatively, that Carter was independently negligent in failing to provide Star with appropriately trained personnel for technical advice. Fisher and National Union refused to defend and indemnify.Carter for these demands because of Star’s allegations of Carter’s independent negligence. As a result, Carter filed a cross-claim against Fisher and National Union on July 20, 1999 (in its answer to the amended petition). In answer to the Star petition, Carter alleged that it owed no duty to Star because it was only a sales representative of Fisher products and services, and since Fisher was the primary defendant, Carter should be released. In Carter’s cross-claim, it alleged that 14Fisher breached its indemnity agreement to provide Carter with a defense and indemnity. Alternatively, Carter alleged that indemnity was owed because Carter was simply a seller under C.C. art. 2531, that any negligence on Carter’s part was passive, that Carter undertook to perform work that Fisher authorized Carter to solicit and obtain for Fisher, and alternatively that Fisher owed Carter contribution in the proper proportion.

On November 13, 1999, Carter filed a motion for summary judgment in the Star suit. On December 2, 1999, the trial judge granted Carter’s motion for summary judgment. He concluded that Carter was “merely a sales representative” and had no obligation to give technical advice or to provide engineering services to Star. Judgment was rendered in favor of Carter on December 6, 1999, dismissing Star’s claims against Carter.

On May 1, 2000, National Union filed a motion for summary judgment in the cross-claim filed by Carter, alleging that Fisher and National Union did not agree to defend and indemnify Carter for Carter’s acts of negligence or omissions. Fisher joined in the motion. On June 26, 2000, Carter filed a cross-motion for summary judgment. Carter asserted that there was no material issue of fact, that Fisher and National Union owed it indemnity and a defense, that Fisher and National Union waived any coverage defense, and that they failed to provide Carter with proper notice of intent to withdraw a defense and indemnity. The motions were heard on August 10, 2000. On December 2, 2002, the trial judge found in favor of Fisher and National Union, granted their motions, denied Carter’s motion for summary judgment and dismissed Carter’s cross-claims.

On appeal, Carter asserts that the trial judge erred in dismissing its claims. Carter asserts that the supplement to the Representative’s Agreement, which was effective August 26, 1993, and the subsequent letter agreement, support its Imposition. It further asserts that National Union is liable under the insurance policy issued to Fisher.

Carter argues that the question of whether an indemnitor (Fisher) owes a duty to defend and indemnify an indemni-tee (Carter) when the indemnitee is sued for individual negligence is determined by the outcome of the suit, not by the allegations of Plaintiffs petition. In this case, the trial judge found Carter not hable and dismissed it from Star’s suit based on the allegations in Star’s petition.

The Representative Agreements were executed annually. When the accident occurred in October of 1993, the indemnity provision was provided in a supplement. There was no general statement excluding Garter’s individual negligence. Rather, certain acts by the representative were listed. In 1994, when suit was filed, the general statement excluding the individual negligence of Carter was included. We find that the latter contract applies because the duty only arises when a claim or demand is made on Carter.

The Representative Agreement, dated January 1, 1994, Section XI on indemnity provides:

XI. INDEMNITY
Subject to the limitations set forth in the immediately succeeding paragraph of this Section XI. Fisher agrees that it shall at its own expense, protect, defend, indemnify and hold harmless Representative from and against any and all claims, demands, actions, losses, damages, liabilities, costs and expenses (collectively “Losses”) which may arise out of or be made in connection with the death or injury of any person, or damage to property, by whomsoever suffered, resulting a claimed to result from any actual or alleged defect in any Product. The obligations set forth in the immediately preceding sentence shall not apply unless Representative upon receiving notice thereof, promptly notifies Fisher in writing thereof such claim, demand or action and thereafter reasonably cooperates with Fisher in the resolution thereof.
Notwithstanding the provisions of the immediately preceding paragraph of this Section XI or any other provision of this Agreement, Fisher shall not be obligated to protect, defend, indemnify or hold harmless Representative from and against any Losses arising from the following:

|fiF. negligent acts or omissions by Representative.

Pursuant to the" Representative Agreement, Carter notified Fisher in writing in 1994 of the suit against it and requested a defense and indemnification. On September 29, 1994, Fisher responded with a letter asserting the defense was based on:

The letter further states that Fisher will control the defense, settlement or compromise of the litigation and choose the law firm to represent Carter. Fisher reserved the right to withdraw its defense and indemnification obligations upon notice to Carter “if at any time it is determined by Fisher that Fisher’s understanding of the basis for the Litigation is in error or the facts are not as represented by Carter or that pursuant to the terms of the Representative Agreement... .Carter is not entitled to defense or indemnification.... ” Carter signed the letter under the heading “APPROVED AND ACCEPTED” on November 11,1994.

Carter acknowledges that, in insurance cases, the duty to defend is always determined by the facts pled in the petition. Further, it does not dispute that indemnification is not owed for its own independent negligence. However, it cites cases for the proposition that, when the indemnitee is sued for its own negligence, the question of whether the indemnitor owes a duty to defend and provide indemnification is determined by the outcome of the suit against the indemnitee, not by the allegations in a plaintiffs pleadings. Carter cites Phillips v. Equitable Life Assur. Co. of the U.S., 413 So.2d 696 (La.App. 4th Cir.1982);7 Kerr v. Smith Petroleum, 896 F.Supp. 608 (E.D.La.1995); Yocum v. City of Minden, 26-424 (La.App. 2nd Cir.1/25/95), 649 So.2d 129; and Mossy Motors v. Sewerage and Water Bd. of City of New Orleans, 1998-0495 (La.App. 4th Cir.5/12/99), 753 So.2d 269.

Phillips, involved a negligence action arising out of the fatal shooting in a parking lot of a Winn-Dixie food store in a shopping center owned by Equitable. Equitable and Winn-Dixie filed third-Party demands against one another seeking indemnification and/or contribution should they be found liable. Winn-Dixie claimed that it was entitled to indemnification based upon the lease agreement which stated:

Landlord shall indemnify and save Tenant harmless from any claims or loss by reason of an accident or damage to any person or property happening on or about the streets, driveways, sidewalks and parking area of Squares 618 and 619

Equitable refused to defend Winn-Dixie on the basis that it was not required by the lease to indemnify Winn-Dixie from its own negligence. Winn-Dixie settled the case prior to trial for $15,000. After the jury found neither Equitable nor Winn-Dixie negligent, the trial judge held that, under the lease provision for indemnity, Winn-Dixie was entitled to be indemnified for the amount of the settlement, interest, attorney’s fees and costs.

In Yocum, the plaintiff was injured on a Sewerage and Water Board construction site. He sued the engineering firm hired by the city. The engineering firm filed a third-party against the contractor. The indemnity ^agreement between the contractor and engineering firm provided that the contractor would indemnify the engineering firm for any claims, etc., arising from the contractor’s negligence in whole or in part, regardless of whether the in-demnitee (engineering firm) was also partly negligent. That case is distinguishable from our case because the language of the contracts is different.

The plaintiff in Kerr was an oil platform worker. He sued the Grasso Production Management, Inc. (Grasso) and/or Smith Petroleum Company (Smith) for injuries he sustained on the platform. It was subsequently determined that the defendants were the employers of plaintiff and his tort claims were dismissed. Pending at the time were cross-motions for summary judgment filed by the defendants on various indemnity and insurance issues. Pertinent to this case, Grasso and Smith had an indemnity agreement, which stated that

[Grassojagreed to protect, defend, indemnify, and hold [Smith] harmless from and against all claims, demands and causes of action of any and every type and character, to the cause or causes thereof which are related in any way to performance by [Grasso, ...], excepting, however, all claims, demands and causes of action resulting from the sole negligence or willful acts or omissions of [Smith Petroleum, ...].

Id. at 610

Although the court discussed the Texas and Louisiana Oilfield Indemnity Acts, the court awarded indemnification based on the parties’ contract and on Smith being immune from tort liability. The allegations of the petition were not the consideration for whether indemnity was owed.

In Mossy, the court found that an indemnity provision in a contract with the Sewerage and Water Board was invalid based on Louisiana statutes that prohibited such agreements. The question of the duty to defend was not an issue there.

Other cases have found that the issue of duty to defend is determined by the facts alleged in the petition. See: Pearson v. Hartford Accident & Indemnity Company, 345 So.2d 123 (La.App. 1st Cir.1977); writ refused 347 So.2d 255 (La.1977),3 writ refused 347 So.2d 256 (La.1977); and Foster v. Subsea International, Inc., 101 F.Supp.2d 454, 458 (E.D.La.1998).

In Pearson, H.E. Wiese, Inc. (Wiese), a maintenance millwright had a contract with the Shell Chemical Company (Shell) under which Wiese performed routine maintenance work at Shell’s Geismar plant. The plaintiff was employed by Weiss when he was injured. The plaintiff filed suit against Shell and Jim Champine (Champine), a deceased employee of Shell, and Champine’s insurer, The Travelers Insurance Company (Travelers). The plaintiff dismissed his suit against Shell on his own motion. Travelers filed a third party petition against Wiese alleging that under the terms of the maintenance contract, Wiese had a duty to defend Shell and its employees in tort suits arising under the agreement, and that Wiese owed it for the cost and expense of defending the tort action. Wiese responded that it did not owe indemnity or a duty to defend because, under the terms of the contract, there was no duty when the negligence of a Shell employee was alleged to be the sole cause of the injury. The court held that under the terms of the contract, even though Shell was ultimately found not negligent, Weiss did not owe indemnity, because the suit was based solely on the negligence of defendant company or its employees. The court looked to the facts alleged in the petition, not the outcome of the case.

In Foster, the court interpreted Louisiana law that the outcome of the case is not relevant in determining the indemnitor’s duty to defend the indemnitee. Although that case did not involve a provision excluding the indemnitee’s own negligence, a legal exclusion was urged. The indemnitor contended that the plaintiff was a longshoreman and indemnity agreements relative to longshoremen are void under the Longshore and Harbor Workers Act. However, the plaintiff’s petition alleged facts asserting Jones Act seaman status, which had not yet been determined. The court held that the duty to defend was owed based on the petition, |1flbecause “the ultimate outcome of the case has no effect upon the indemnitor’s duty to defend.” Id. at 458.

The jurisprudence relative to ordinary contracts of indemnity and the duty to defend and indemnify are inconsistent or distinguishable. Therefore, we look solely to the contract to determine whether the duty was owed.

The interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art.2050. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046. Chevron Phillips Chemical Co., LP v. Sulzer Chemtech USA Inc., 02-598, p. 3 (La.App. 5th Cir.10/29/02), 881 So.2d 474, 476. Conversely, when the words of a contract are ambiguous or lead to absurd consequences, a court attempting to interpret the contract must try to ascertain the common intent of the parties in other ways. Gottsegen v. Hart Property Management Inc., 02-129, p. 5 (La.App. 5th Cir.5/29/02), 820 So.2d 1138, 1140-1141. Doubtful provisions must be interpreted in light of the nature of the contract, equity, usage and the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art.2053. However, La. C.C. art.2055 provides that “[e]quity, as intended in the preceding articles, is based on the principles that no one is allowed to take unfair advantage of another and that no one is allowed to enrich himself unjustly at the expense of another.”

The applicable Representative Agreement states that Fisher will indemnify Carter from “all claims, demands, actions, losses ...,” resulting or “claimed to result” from an alleged defect in Fisher’s products. However, it “shall not be lnobligated to protect, defend, indemnify or hold harmless” Carter “from and against any Losses arising from ... F. negligent acts or omissions by Representative.”

The exclusionary provision in the Representative Agreement does not state that it will not defend Carter from “claims” of negligent acts or omissions. It says that it will not be responsible for losses Carter sustains from its negligent acts or omissions. Words in a contract have meaning. In the prior paragraph, the words “claims, demands, and actions” are used specifically. They are conspicuously absent in the exclusion. Furthermore, the letter agreement is not pertinent to this determination because it was specific to a particular event. The letter agreement setting out the terms of the defense of Carter was confected in response to Carter’s demand for defense and indemnity relative to the original lawsuit. The letter specifically refers to the case number of the litigation that is at issue and the date that Carter was served. Based on the Representative Agreement, we find that the parties intended to provide indemnity for Carter in the event that it was individually sued and found not negligent. Thus, the trial judge erred in denying Carter’s motion for summary judgment and dismissing its cross-claim and granting the motion for summary judgment filed by National Union and Fisher.

Accordingly, the judgment is reversed. Summary judgment is granted to Carter. Summary Judgment is denied to National Union and Fisher. The case is remanded to the trial court for a hearing to determine attorney’s fees and costs owed to Carter. Cost of appeal are to be paid by Fisher.

SUMMARY JUDGMENTS REVERSED; SUMMARY JUDGMENT FILED BY CARTER GRANTED; SUMMARY JUDGMENT FILED BY FISHER DENIED. REMANDED.

      . Star amended the original petition eight times.

      . Insurance law is sui generis and not applicable to these cases. In an insurance policy indemnity case, the petition determines the insurer's duty to defend. In Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La.1987), answer to certified question conformed to, 817 F.2d 275, 1988 A.M.C. 1214 (5th Cir.1987), the Supreme Court explained:
      “our understanding that the basis for the Litigation is the allegation that Fisher improperly repaired a valve for the plaintiff, and based on your representations that Carter’s only relationship to the Litigation arises through the contracting with Star Enterprise for the repair of a Fisher DBA valve in February, 1992 which repair was subcontracted in its entirety to Fisher, Fisher is prepared to provide for Carter’s defense and indemnity ... subject to the following conditions ...” An indemnity agreement is a specialized form of contract which is distinguishable from a liability insurance policy. A cause of action under a liability insurance policy accrues when the liability attaches. However, an insurer's duty to defend arises whenever the pleadings against the insured disclose a possibility of liability under the policy. On the other hand, an indemnity agreement does not render the indemnitor liable until the indemnitee actually makes payment or sustains loss. Therefore, a cause of action for indemnification for cost of defense does not arise until the lawsuit is concluded and defense costs are paid [footnote and citations omitted].

        See also: Becnel v. United Gas Pipeline Co., 95-41 (La.App. 5th Cir.4/25/95), 655 So.2d 409.

      . Both writs were refused on the basis that the trial courts did not commit legal or factual error.


author: h GLENN B. GREMILLION, Judge. hDECUIR, J.,

text:
    Ricky BELAIRE v. DON SHETLER OLDS BUICK CHEVROLET.
    No. 02-1152.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      Michael B. Miller, Crowley, LA, for Plaintiff-Appellee/Appellant, Ricky Be-laire.
    Christopher R. Philipp, Lafayette, LA, for Defendant-Appellant/Appellee, Don Shetler Olds Buick Chevrolet.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   h GLENN B. GREMILLION, Judge.

Both the plaintiff, Ricky Belaire, and the defendant, Don Shetler Oldsmobile Buick Chevrolet, appeal a judgment of the workers’ compensation judge denying temporary total disability benefits to Belaire, and assessing penalties and attorney fees for the late and inaccurate payment of benefits against Don Shetler. For the following reasons, we reverse in part and affirm as amended.

FACTS

Belaire began working for Don Shetler on September 15, 1997. In early July 1999, Belaire suffered a work-related injury while installing an oil filter on a vehicle. He was paid full salary from his last day of work, July 19, 1999, until July 30, 1999. Don Shetler also paid TTD during that period and until March 31, 2000. On March 17, 2000, Belaire began receiving supplemental earnings benefits; he also received a $150.00 Christmas bonus in December 1999.

After his accident, Belaire complained of neck, shoulder, and left arm pain. He was initially sent to Dr. Karrie Kilgore, a family physician, by Don Shetler. Dr. Kilgore suspected possible carpal tunnel syndrome and referred Belaire to Dr. Roland Miller, an orthopaedic surgeon. Dr. Miller saw Belaire on July 30, 1999, and ordered a cervical MRI. He again saw Belaire on August 4, 1999, and ordered an EMG be conducted by Dr. James Domingue, a neurologist. Dr. Miller saw Belaire in September and October 1999, at which time he concluded that Belaire was possibly suffering from an ulnar nerve injury. He released Belaire to light duty work and referred him to Dr. Stephen Goldware, a neurosurgeon.

PPr. Goldware saw Belaire on November 23, 1999, and ordered an MRI of the cervical and thoracic spines. On March 21, 2000, Dr. Goldware opined that Belaire did not require surgery or further work-up of his complaints and that he could return to work without restrictions. Belaire did not return for his next scheduled visit on November 16, 2000. Pursuant to an interlocutory order of the workers’ compensation judge, Belaire was allowed to change his treating neurosurgeon from Dr. Gold-ware to Dr. Luiz de Araujo.

Dr. de Araujo saw Belaire on August 6, 2001, and referred him to Dr. John Cobb, an orthopaedic surgeon. Don Shetler declined to guarantee payment claiming that Dr. Miller was Belaire’s choice of ortho-paedic surgeon.

After trial on the merits, the workers’ compensation judge ruled that Don Shet-ler’s calculation of average weekly wage (AWW) correctly excluded retirement benefits, bonuses, and vacation time; Belaire failed to prove the elements necessary for TTD benefits; Don Shetler is liable for penalties and attorney fees for late and inaccurate payments; and it must guarantee payment for Belaire to see Dr. Cobb. Both parties appeal.

CALCULATION OF AVERAGE WEEKLY WAGE

Belaire contends that the workers’ compensation judge erred in failing to include fringe benefits in the calculation of his average weekly wage. This is a question of law, thus, we simply review the workers’ compensation judge’s finding to determine if it is legally correct. Scobee v. Brame, 98-564 (La.App. 8 Cir. 10/28/98), 721 So.2d 977, writ denied, 98-2952 (La.1/29/99), 736 So.2d 883.

| a At the outset, we note that Belaire’s injury occurred just prior to the effective date of the 1999 amendment to La.R.S. 23:1021(10). Accordingly, the prior law regarding fringe benefits is applicable to this case. See McClain v. Pinecrest Dev. Ctr., 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112.

Belaire argues that the workers’ compensation judge erred in failing to include his Christmas bonus, vacation time, and retirement benefits in the calculation of his AWW. With regard to his Christmas bonus and vacation time, Belaire directs our attention to Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989), and Harris v. Langston Co., Inc., 94-1266 (La.App. 3 Cir. 4/5/95), 653 So.2d 789, writ denied, 95-1178 (La.6/23/95), 656 So.2d 1020.

In our recent case, Johnson v. Louisiana Container Co., 02-382, p. 12 (La.App. 3 Cir. 10/2/02), 834 So.2d 1052, 1065, we stated the general rule with regard to fringe benefits, “The value of fringe benefits, if proven, will be included in the calculation of weekly wages for the purpose of determining the compensation rate if such benefits were fairly contemplated by the parties to the contract of employment.” In this instance, the parties stipulated that Belaire received one week of vacation and a Christmas bonus each year. Thus, it was contemplated by Be-laire and Don Shetler that he would receive these as part of his contract of employment. Accordingly, both items should be figured into the computation of his AWW. This is true even though Belaire was paid his 1999 Christmas bonus. If Don Shetler figured his week of vacation into the computation, then it was included. However, if it did not, then Belaire’s AWW should be recomputed to include his week of vacation.

|4With regard to his retirement benefits, the workers’ compensation judge excluded them from Belaire’s wage computation finding that they should be excluded because he was not yet vested in Don Shetler’s retirement system. Retirement benefits are considered to be fringe benefits and are included in the AWW computation. Burns v. St. Frances Cabrini Hosp., 02-518 (La.App. 3 Cir. 10/30/02), 830 So.2d 572. Based on the judicial tenet that workers’ compensation law is remedial in nature and should be construed liberally in favor of finding coverage for the injured worker, we find that the workers’ compensation judge erred in failing to include Belaire’s retirement benefits in the computation of his AWW. Even though Belaire had not yet vested in Don Shetler’s retirement system, the parties contemplated that he would receive these benefits as part of his employment contract. Thus, they should be included in determining his AWW. Accordingly, the judgment of the workers’ compensation judge is reversed and it is ordered that Belaire’s AWW be recomputed to include his week of vacation, his Christmas bonus, and his retirement benefits.

FORFEITURE OF BENEFITS

Don Shetler next contends that the workers’ compensation judge erred in failing to forfeit Belaire’s benefits under the provisions of La.R.S. 23:1208. Specifically, it contends that Belaire’s benefits should be forfeited because he failed to disclose previous injuries to his treating physicians.

In Resweber v. Haroil Construction Co., 94-2708, 94-8138 (La.9/5/95), 660 So.2d 7, the supreme court noted that in order to forfeit benefits, La.R.S. 23:1208 requires that 1) there is a false statement, 2) it is 'willfully made, and 3) it is made for |fithe purpose of obtaining or defeating any benefit or payment. An appellate court reviews factual determinations of the workers’ compensation judge under the manifest error or clearly wrong standard. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706.

After careful review of the record, we find no manifest error in the workers’ compensation judge’s determination that Belaire has not forfeited his benefits. While false statements are evident in the medical history reports in the record, the workers’ compensation judge could clearly have found them to be inadvertent and not for the purpose of obtaining benefits. Accordingly, this assignment has no merit.

CHOICE OF PHYSICIANS

In this assignment of error, Don Shetler contends that the workers’ compensation judge erred in allowing Belaire to change from Dr. Goldware to Dr. de Araujo and from Dr. Miller to Dr. Cobb. It argues that Drs. Goldware and Miller were Belaire’s de facto choice of physicians.

The workers’ compensation judge’s determination concerning whether a particular physician is the claimant’s de facto choice of physician is factual in nature and will not be disturbed on appeal absent manifest error. Comeaux v. Sam Broussard Trucking, 94-1631 (La.App. 3 Cir. 5/31/95), 657 So.2d 449. In this case, the workers’ compensation judge ordered Don Shetler to allow Belaire to go to Dr. Cobb. Implicit in that order is the determination that Drs. Goldware and Miller were not Belaire’s de facto physicians. We find no manifest error in that determination, espe-dally in light of the recent supreme court case of Smith v. Southern Holding, Inc., I 02-1071 (La.1/28/03), 839 So.2d 5. Smith overruled the line of cases holding that an employee makes a de facto choice of a physician when he submits to treatment from an employer-referred physician. Accordingly, the judgment of the workers’ compensation judge is affirmed, and this assignment has no merit.

EXCLUSION OF EVIDENCE

Don Shetler alleges the workers’ compensation judge erred in excluding the deposition of Dr. Ricardo Leoni, a neurological surgeon, and the testimony of Ted Deshotels, a vocational rehabilitation counselor, due to a violation of La.R.S. 23:1127. We disagree.

Louisiana Revised Statute 23:1127(0) provides in pertinent part:

(1) Consistent with the policy of reasonable access to medical information for all parties and notwithstanding the provisions of Article 510 of the Louisiana Code of Evidence or any other law to the contrary, a health care provider, without the necessity of a subpoena or other discovery device, shall verbally discuss medical information regarding the injured employee with another health care provider examining the employee, a case manager, or a vocational rehabilitation counselor assigned to provide rehabilitation for that insured worker. No health care provider or his employee or agent shall be held civilly or criminally liable for disclosure of the medical information conveyed pursuant to this Section. This Paragraph shall not apply to examinations conducted by medical examiners appointed by the director pursuant to R.S. 23:1123.
(2) In any verbal communication or personal conference between the vocational rehabilitation counselor and any health care provider, for the purpose of providing rehabilitation services, the employee or his agent or representative shall cooperate in scheduling a reasonable date and time for such communication or conference and the employee or his agent or representative shall be given fifteen days notice of any such communication or conference, and shall be given the opportunity to attend or participate in the communication or conference.
(3) In addition to any other duty or responsibility provided by law, a case manager or vocational rehabilitation counselor who is a party to a verbal communication with the health care provider regarding an 17employee, as authorized by Paragraph (1) of this Subsection, shall, within five working days of the communication, mail a written summary of the communication and any work restrictions or modifications required for the employee’s reasonable return to employment to the employee, his representative, and the health care provider. The summary shall be mailed by certified mail, return receipt requested, to the employee or his representative. It shall include a narration of any diagnosis or opinion given or discussed, any conclusions reached concerning the vocational rehabilitation plan, any return to work opportunities discussed consistent with the vocational rehabilitation plan, and the medical evaluation of the health care provider.
(4) Any medical information released in writing shall be furnished to the employee at no cost to him simultaneously with it being furnished to the employer, its insurer, agent, or representative. Any such records or information furnished to the employer or insurer or any other party pursuant to this Section shall be held confidential by them and the employer or insurer or any other party shall be liable to the employee for any actual damages sustained by him as a result of a breach of this confidence up to a maximum of one thousand dollars, plus all reasonable attorney fees necessary to recover such damages. An exception to this breach of confidentiality shall be any introduction or use of such information- in a court of law, or before the Office of Workers’ Compensation Administration or the Louisiana Workers’ Compensation Second Injury Board.

(Emphasis added).

The record reveals that Dr. Leoni met with Ted Deshotels to discuss Belaire. Belaire was neither given proper notice of the meeting nor a written summary of the meeting as required by the statute. The workers’ compensation judge found that Don Shetler had violated La.R.S. 23:1127 and, therefore, excluded the deposition and testimony of the offending parties. Don Shetler argues that this was an abuse of discretion.

The workers’ compensation judge has great discretion in the introduction of evidence and her decision whether to allow or disallow such evidence will not be reversed on appeal in the absence of an abuse of that discretion. Faul v. Bonin, 95-1236a (La.App. 3 Cir. 8/7/96), 678 So.2d 627, writ denied, 96-2221 (La.11/15/96), 682 So.2d 769. We find no error in the workers’ compensation judge’s decision to disallow the introduction of the evidence since the proper procedure in the interview of a doctor by a vocational rehabilitation specialist was not followed. Accordingly, this assignment of error is dismissed as being without merit.

SUPPLEMENTAL EARNING BENEFITS

In his first assignment of error, Belaire contends that the workers’ compensation judge erred in denying him SEBs. We disagree.

In order to recover SEBs, an employee must first prove by a preponderance of the evidence that, as a result of a work injury, he is unable to earn wages equal to ninety percent or more of the wages earned before the accident. La.R.S. 23:1221(3)(a); Daigle, 545 So.2d 1005. In order to set aside the ruling of a workers’ compensation judge, an appellate court must conclude from the record that a reasonable factual basis did not exist for the findings and that said findings were clearly wrong. Comeaux, 657 So.2d 449. Assessments of credibility of witnesses or the weight of medical evidence should not be disturbed on appeal unless clearly wrong. Huntsberry v. Martin Mills, Inc., 97-641 (La.App. 3 Cir. 12/10/97), 704 So.2d 356, writ denied, 98-0099 (La.3/13/98), 713 So.2d 472.

In the present case, there was ample medical evidence that Belaire could return to at least light-duty work. In addition, Dr. Goldware cleared Belaire for normal activities. Belaire argues that, in spite of this evidence, the workers’ compensation judge erred in ruling against him on the issue of disability where the report of Dr. Cobb was not available due to Don Shet-ler’s refusal to authorize |9payment. Be-laire cites no authority for this position. We find that there is ample medical evidence in the record, from physicians who have seen Belaire on numerous occasions, for the workers’ compensation judge to make a decision. The report from one visit to Dr. Cobb would not be sufficient to create manifest error in the workers’ compensation judge’s ruling. Accordingly, we find no error in the workers’ compensation judge’s ruling.

PENALTIES

Both parties allege error by the workers’ compensation judge with regard to the award of penalties. Belaire contends that it was error to award only $1,500.00 in penalties for the late payment of his first week’s benefit. In addition, he contends that penalties should have been awarded for Don Shetler’s refusal to allow him to see his choice of physicians. Don Shetler contends it overpaid benefits and should not owe any penalties. In the alternative, it argues that it should only owe $2,000.00 for late and incorrect payment under La. R.S. 23:1201(F).

The workers’ compensation judge assessed Don Shetler a $1,500 penalty for the failure to timely pay the first installment of indemnity benefits. Don Shetler noticed the mistake on its own, not at the urging of Belaire or his counsel, and immediately paid the delinquency. It is evident that Don Shetler failed to make the payment as a result of its own carelessness. Therefore, given the mandatory nature of the penalty provision provided by La.R.S. 23:1201(F), we affirm the assessment of penalty for this mistake. However, we must amend the assessment and award $2,000 in penalties because the payment was due in September and not paid until April, thus requiring the maximum penalty under the statute.

|inThe workers’ compensation judge also assessed Don Shetler an additional $2,000 penalty for failing to properly calculate the amount of indemnity benefits owed to Belaire. We affirm. In Daugherty v. Domino’s Pizza, 95-1394, p. 14 (La.5/21/96), 674 So.2d 947, 956, the supreme court stated:

Where the fact of late payment is uncon-tradicted and an employer fails to show that the late payment resulted from conditions over which the employer had no control or that the employee’s right to have the bill paid by the employer is controverted, La.R.S. 23:1201 and 1201.2 mandate an award of penalties and attorney’s fees. See, e.g., LaHaye v. Westmoreland Casualty Co., 509 So.2d 748 (La.App. 3rd Cir.1987).

Moreover, “an employer cannot urge its own poor clerical work to escape penalties and attorney fees for nonpayment.” Fisher v. Lincoln Timber Co., 31,430, p. 15 (La.App. 2 Cir. 1/24/99), 730 So.2d 973, 982. Accordingly, we find no error in the workers’ compensation judge’s award of penalties in this instance, even though Don Shetler corrected the mistake at the same time it corrected the late payment, Belaire was unaware of either problem, and there was not an independent “disputed claim” for the miscalculation giving rise to the assessment of an additional penalty. The judgment of the workers’ compensation judge is affirmed in this instance.

With regard to the workers’ compensation judge’s decision not to award penalties for the failure to authorize treatment by Belaire’s choice of physicians, we find no error. The determination of whether an employer should be cast with penalties and attorney’s fees is a question of fact and the workers’ compensation judge’s findings shall not be disturbed on appeal absent manifest error. Woolley v. CAS Refining, Inc., 94-648 (La.App. 3 Cir. 1/11/95), 651 So.2d 860, writ denied, 95-1158 (La.6/16/95), 655 So.2d 331. A claimant is not entitled to an award of penalties when a claim has been reasonably controverted. La.R.S. 23:1201(F). In this case, In Don Shetler believed that Belaire had made de facto choices of physicians and, therefore, was not entitled to a change. The trial court evidently found this belief to be a reasonable contravention of Belaire’s request to see other physicians. After reviewing the record, we find no manifest error in the workers’ compensation judge’s decision not to award penalties in this instance.

ATTORNEY FEES

Belaire contends the attorney fees awarded by the workers’ compensation judge are too low and attorney fees should have been awarded for the arbitrary and capricious termination of benefits. As noted above, the workers’ compensation judge’s decision to award attorney fees will not be disturbed unless manifestly erroneous. We find no error in the workers’ compensation judge’s award of attorney fees. However, we amend the judgment to an increase in attorney’s fees, $2,500 in attorney fees for the late payment of the first week’s benefits and $2,500 in attorney fees for the late payment of the proper amount of benefits.

CREDIT FOR OVERPAYMENT

Don Shetler contends the workers’ compensation judge erred in failing to give it credit for overpayment of benefits during the period of March 17-21, 2000, when it paid both TTD and SEBs and for SEBs payments made after the date of Dr. Goldware’s release of Belaire. We disagree.

Our review of the record reveals that the only evidence presented by Don Shet-ler in support of its claim for credit was the testimony of an employee and a printout listing checks issued. There is no evidence in the record that the checks were | ^actually cut or received and cashed by Belaire. Absent such evidence, the workers’ compensation judge did not err in failing to find Don Shetler was owed a credit. ,

WORK PERFORMED ON APPEAL

On appeal, Belaire asks for additional attorney’s fees for work performed on appeal. Considering our findings, we award him an additional $5,000 for work performed on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is reversed insofar as it excluded Belaire’s fringe benefits from the computation of his average weekly wage. The judgment is amended to increase his $1,500 penalty for late payment of his first week of benefits to $2,000, and to increase his award attorney’s fees to $2,500 for the late payment of the first week’s benefits and $2,500 for late payment of the proper amount of benefits. The judgment is affirmed in all other respects. We further award Belaire $5,000 in attorney’s fees for additional work performed on appeal. The costs of these proceedings are taxed twenty-five percent to the plaintiff-appellant/appellee, Ricky Be-laire, and seventy-five percent to the defendant-appellee/appellant, Don Shetler Olds Buick Chevrolet.

REVERSED IN PART; AMENDED IN PART; AND AFFIRMED IN PART.

DECUIR, J., dissents with reasons.

hDECUIR, J.,

dissenting.

I respectfully dissent from the majority opinion with regard to four issues.

CALCULATION OF LAW

First, I must disagree with the majority’s resolution of the issue regarding the calculation of the average weekly wage. While the majority correctly asserts that the law at the time of the accident provided that Belaire’s bonus and vacation time were to be included in the calculation of the average weekly wage, I do not believe that is true of the retirement benefits. Belaire could not recover the payments to the retirement plan outside of workers’ compensation and should not be allowed to do so within the system. The majority position penalizes the employer for prudently funding potential liability in its retirement plan.

The majority, in its technical application of the law regarding the calculation of the AWW, ignores the inequity created by its findings in this case. The record clearly establishes that Belaire was paid his Christmas bonus and vacation time in fall during the period he received compensation. Thus, Don Shetler, paid Belaire more than he would have received had the benefits been included in the calculation of AWW. The majority opinion penalizes the employer for its generosity and gives Be-laire a double recovery.

LThis court clearly stated in Lachney v. Johnson & Johnson/Ortho Biotech, 96-724 (La.App. 3 Cir. 2/19/97), 689 So.2d 691, 694:

It is not intended under our law for an employee to be compensated doubly for the same element of damages. Gagnard v. Baldridge, 612 So.2d 782 (La.1993). Double recovery equates to exemplary or punitive damages, which under Louisiana law are prohibited unless expressly authorized by statute. International Harvester Credit v. Seale, 518 So.2d 1039 (La.1988). This principle is so important that the court in Gagnard, faced with the possibility of a double recovery due to the employer’s tort liability insurer’s failure to appeal, applied an offset against workers’ compensation benefits despite having found that the offset should properly be applied to the tort claim. Gagnard, 612 So.2d 732.

Moreover, in discussing related principles we said:

In enacting these provisions, the legislature clearly intended to encourage employers to make voluntary workers’ compensation benefit payments. If we were to allow Mr. Duhon to now claim entitlement to benefits based on his employer’s voluntary payments, the very purposes of the statute would be thwarted. Employers would be forced to prove a negative, that is, that the employee was not entitled, if they undertook to make voluntary payments. They would thereby be discouraged from paying voluntarily, fearing that doing so would lead to claimants being presumptively entitled. We refuse to lend our judicial imprimatur to such a position. Further, it would undermine public policy, the principles of judicial economy, and the very humane purposes of these statutory provisions.

Snelling Personnel Services v. Duhon, 2000-661 (La.App. 3 Cir. 11/2/00), 772 So.2d 350, 353-354.

The majority opinion both penalizes the voluntary generosity of the employer and countenances double recovery by the claimant. As noted in the dissent to Dementi v. Trahan, 1999-983 (La.App. 3 Cir. 12/22/99), 755 So.2d 952, 958, “It is true we often construe Workers compensation provisions liberally in favor of injured employees, but we ought not interpret them as mandating absurd results without clear expression from the legislature.”

JjEXCLUSION OF EVIDENCE AS SANCTION

The majority opinion on the violation of La.R.S. 23:1127 misses the point entirely by reducing the issue to the trial court’s discretion in the admission of evidence. The record clearly reveals that the trial court used the exclusion of the testimony of Dr. Leoni and Ted Deshotels as a sanction for violations of La.R.S. 23:1127, without regard for the nature or content of the material. Thus, the proper question for this court is whether the trial court abused its discretion in using the exclusion of evidence as a sanction.

I find no authority for the worker’s compensation judge’s exclusion of evidence as a sanction for violation of La.R.S. 23:1127. The appropriate sanction is actual damages up to $1,000.00 as provided by the statute. Belaire has established no damages and, therefore, I would find that no sanction is authorized. I believe the worker’s compensation judge erred in excluding the evidence. Accordingly, I would review the proffered evidence as requested by Don Shetler.

PENALTIES

The majority chooses to affirm the trial court’s award of penalties for miscalculation of indemnity benefits. I would reverse that award. Don Shetler discovered and corrected the mistake at the same time it corrected the late payment. Since Belaire was unaware of either problem, there was not an independent “disputed claim” for the miscalculation giving rise to the assessment of an additional penalty. The majority’s affirmation of the penalty defeats the statutes purpose by creating a disincentive for employers to correct their own mistakes.

It in effect tells an employer discovering a miscalculation, not noticed by the claimant, to do nothing because if you bring attention to the miscalculation you will 14be penalized. Whereas, if you do nothing you will only be penalized if the claimant discovers the error. Surely, this is not the message we wish to send to employers.

ATTORNEY FEES

The majority awards $2,500.00 in attorney fees for the miscalculation of benefits and an additional $5,000.00 for prosecution of this appeal. I do not believe these awards are warranted. The record reflects that Don Shetler discovered and corrected the problem before claimant’s counsel was retained. The majority’s award is nothing more than another penal measure aimed at an employer which tried to do the right thing.

CONCLUSION

The majority opinion unjustifiably penalizes an employer acting in good faith, allows the claimant a double recovery, recognizes a non-statutory sanction for violation of La.R.S. 23:1127, and removes all incentive for an employer to correct its own mistakes. I respectfully dissent.