author: JjEDWIN A. LOMBARD, Judge.

text:
    Susan Gail HESTER v. William Ewing HESTER, III.
    No. 2003-CA-1259.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 2004.
    Rehearing Denied June 30, 2004.

      Phillip A. Wittmann, Cindy H. Williams, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, for PlaintiffiAppellee.
    Bennett Wolff, Wolff & Wolff, Metairie, LA; and Henry P. Julien, Jr., The Kull-man Firm, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge EDWIN A. LOMBARD, Judge Pro Tempore MOON LANDRIEU).
   JjEDWIN A. LOMBARD, Judge.

Appellant, William Ewing Hester, III, appeals a judgment of October 1, 2002, which reduced but did not revoke his support obligation pursuant to Article 229 of the Louisiana Civil Code. Appellant contends that his support obligation for his handicapped daughter, Amanda Hester, should have been revoked entirely based on her full-time employment; and, that the reduction or revocation of his support obligation should be retroactive to the date he filed his modification motion. For the reasons that follow, we affirm the judgment of the trial court.

Pertinent Facts and Procedural History

In 1996, Mrs. Hester filed a rule pursuant to C.C. Art. 229 seeking alimony for Amanda, who turned 19 in December, 1995 and, as such, was no longer eligible for child support under LSA-R.S. 9:315. After a hearing in 1997, the trial court rendered judgment determining that Amanda had a mental disability that entitled her to C.C. Art. 229 support. Mr. Hester was ordered to pay to Mrs. Hester a monthly sum of $932.00 for support for Amanda. Further, the court ruled that Amanda’s tuition and expenses for a program for disabled adults she was attending | ain Alabama was to be paid from an account Mr. Hester established and funded in the 1980’s in Amanda’s name. The judgment provided that the alimony award was to remain in effect until Amanda completed the program, at which time it was to be reexamined to determine Amanda’s ability to support herself and if continued support was needed.

Amanda returned to New Orleans in 2000 and has resided with her mother continuously since that time. She obtained permanent, full-time employment as a mail clerk/delivery person in the appellant’s law firm on July 17, 2001, earning a gross monthly income of $1,360.00. In September 2001, Ms. Hester became eligible to receive health benefits as a full-time employee.

In September 2001, Mr. Hester sought a revocation or alternatively a reduction in his C.C. Art. 229 support obligation alleging as a change in circumstances, that his daughter was now gainfully employed and earning sufficient income to provide for her basic needs within the meaning of C.C. Art. 229. A hearing was held in September 2002 and the trial court rendered a judgment in October 2002 reducing Mr. Hester’s payments from $932.00 per month to $275.00 per month. The court declined to make the reduction retroactive to the date of filing.

Standard of Review

“The conclusion that plaintiff is in such physical condition as to support her claim for alimony as a matter of law is essentially a factual conclusion by the trial judge which should not be disturbed in the absence of manifest error.” Harrison v. Harrison, 405 So.2d 1115, 1116-1117 (La.App. 4th Cir.1981).

1RDiscussion

The first issue before the court is whether the trial court erred in reducing, rather than revoking entirely, appellant’s support obligation under Article 229 of the Louisiana Civil Code for his mentally challenged adult daughter, Amanda Hester. The pertinent code articles applicable to this case, where the child is over nineteen years of age, are La. C.C. arts. 229-232. They state:

Article 229. Reciprocal alimentary duties of ascendants and descendants
Children are bound to maintain their father and mother and other ascendants, who are in need, and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal. This reciprocal obligation is limited to life’s basic necessities of food, clothing, shelter, and health care, and arises only upon proof of inability to obtain these necessities by other means or from other sources.
Article 230. Scope of alimentary obligation
A. By alimony we understand what is necessary for the nourishment, lodging, and support of the person who claims it.
Article 231. Basis for granting alimony
Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.
Article 232. Reduction of alimony or discharge from payment
When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted.

If Amanda is to recover support under La. C.C. Art. 229, she must prove that she is in need of life’s basic necessities, and that she is unable to obtain those necessities by other means or from other sources.

Before determining whether a claimant is entitled to Art. 229 support, Art 230 requires us to first understand the claimant’s necessities. Each case must be considered on its own facts. See In re Tutorship of Blanque, 700 So.2d 1077, 1080 (La.App. 5 Cir.1997). The trial court heard and weighed all the evidence regarding Amanda’s disability and limitations and concluded that she was the type of person Art. 229 was enacted to protect. We agree.

Amanda is mentally disabled. She suffers from Tourette’s syndrome, obsessive-compulsive disorder and Ausberger’s disease. The record reflects that Amanda is still dependent on her mother for housing, clothing and transportation. As a severely mentally disabled adult, Amanda’s needs are far different from and greater than those of a less disabled person.

There is no doubt that Amanda has disabilities. Mr. Hester argues that Amanda’s handicap has not prevented her from obtaining and maintaining employment and that this employment provides her with other means or other sources from which to obtain her necessities. This Court believes her employment at her father’s law firm to be of doubtful propriety and is not convinced that Amanda would be employable there if Mr. Hester were not a partner. The only evidence regarding Amanda’s employability was inappropriate and self-serving testimony in front of this Court from one of appellant’s counsel, also a partner in Mr. Hester’s firm.

We disagree with Mr. Hester’s argument that a mailroom job with monthly gross pay of $1,360.00 is sufficient to support a severely disabled adult. Should her mother be unable to care for her, Amanda would not be able to support herself. There is nothing contained in the statute or case law that requires Amanda to be completely disabled or entirely unemployable in order to qualify for support.

lsAs a result of Amanda’s employment Mr. Hester was entitled to a discharge or reduction of his support obligation under La. C.C. Art. 232. Accordingly, the trial court substantially reduced Mr. Hester’s monthly obligation by seventy percent (70%), from $932.00 to $275.00.

Next, Mr. Hester argues that the trial court abused its’ discretion in not making the reduction retroactive to the date he filed his modification motion. La. R.S. 9:310 and 9:315.21 provide that an original award of a support obligation or any modification to said award shall be made retroactive to the date of filing, unless there is good cause shown to make the award effective on some other date.

The trial judge discussed her decision at length on the record and reasoned that Amanda is in need of every dollar that she has; and, making the reduction retroactive and requiring reimbursement of approximately ■ $7,500.00 would be penalizing her by further reducing the income going into the Hester household for Amanda’s long-term support. We do not find it necessary to disturb that judgment.

After reviewing the applicable law and facts contained in the record, we find no error in the trial court’s finding that Amanda met her burden of establishing her need and entitlement to La. C.C. Art. 229. We also find that there was no abuse of discretion in the trial court’s refusal to make the modification retroactive. Reversal is not warranted.

Turning to Mrs. Hester’s answer to the appeal in which she seeks attorney’s fees and sanctions, we find that there is no economic justification for this appeal. The record reflects that Mr. Hester’s economic status is such that the support payments of $275.00 will cause no inconvenience, much | r,less hardship. That fact, along with the legal argument used in support of this appeal, indicate that this appeal wás intended to harass Mrs. Hester and cause her to incur additional unnecessary legal expenses. It appears that this appeal is part of the pattern of “delays” that has led to sanctions by this Court against Mr. Hester on more than one occasion. This Court has no more tolerance for appellant’s repeated abuse of the judicial system in light of the extensive history of the case and the tactics Mr. Hester has employed throughout the litigation.

For the foregoing reasons the judgment appealed from is affirmed. Appellee’s request for attorney’s fees and sanctions is granted in the sum of twenty thousand ($20,000.00) dollars.

AFFIRMED WITH SANCTIONS.


source: Caselaw Access Project

author: I,SULLIVAN, Judge. | ¶WOODARD, J.,

license: Public Domain

text:
    Susan SMITH v. LAFAYETTE PARISH SHERIFF’S DEPARTMENT, et al.
    No. 2003-517.
    Court of Appeal of Louisiana, Third Circuit.
    April 21, 2004.
    Rehearing Denied June 23, 2004.

      John H. Carmouche, Donald T. Car-mouche, Victor L. Marcello, Talbot, Car-mouche & Marcello, Gonzales, LA, William W. Goodell, Jr., Lafayette, LA, for Plaintiff/Appellant, Susan Smith.
    L. Katherine A. Theunissen, Ward La-Fleur, Mahtook & LaFleur, Lafayette, LA, for Defendants/Appellees, Sheriff Mike Neustrom, Donald J. Breaux.
    Randall L. Kleinman, Hulse & Wanek, New Orleans, LA, for Defendants/Appel-lees, Continental Casualty Company, CNA Columbia Casualty Company.
    Ernest Randal Comeaux, in Proper Person, Homer, LA, for Defendant/Appellee.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, MARC T. AMY, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   I,SULLIVAN, Judge.

Susan Smith sued Randy Comeaux, former deputy of the Lafayette Parish Sheriffs Department (LPSD); former Lafayette Parish Sheriff, Donald J. Breaux, and current Lafayette Parish Sheriff, Mike Neustrom, as representatives of LPSD; and Continental Casualty Company (Continental), LPSD’s law enforcement liability insurer, seeking damages for being raped by Mr. Comeaux. LPSD and Continental filed motions for summary judgment which were granted by the trial court. Ms. Smith appeals. We affirm.

Facts

From the mid-1980’s until the mid-1990’s, a number of rapes occurred in the southern portion of Lafayette Parish and adjoining parishes which could not be solved. In late 1995, the Lafayette Police Department (LPD) developed a theory that the rapes were connected and could have been committed by the same person. In 1997, DNA testing revealed that semen samples from six rape scenes matched. At that point, LPD began looking for a serial rapist.

In September 1997, a task force was formed to attempt to solve these related rapes. The task force included LPD, LPSD, the Louisiana State Police, the FBI, and the University of Southwestern Louisiana, now University of Louisiana at Lafayette. Unsuccessful, the task force disbanded after approximately seven months. There were no new leads in the cases until November 1998 when an anonymous caller suggested to LPD Captain James Craft that Randy Comeaux, a detective in the LPSD Juvenile Division, should be investigated for the rapes. DNA testing on the butt of a cigarette smoked by Mr. Comeaux revealed that his DNA matched semen samples pfrom six rape scenes. After being arrested, Mr. Comeaux confessed to committing a number of rapes, including five rapes in Lafayette Parish on the following dates: November 2, 1986, November 15, 1987, November 16, 1992, August 29, 1994, and August 31, 1995. The November 2, 1986 rape occurred outside the city limits of Lafayette and was investigated by LPSD. The other Lafayette Parish rapes occurred within the corporate limits of the City of Lafayette and were investigated by LPD.

In her suit against LPSD, Ms. Smith alleged that Sheriff Breaux’s hiring/retention policies were inadequate, that LPSD is vicariously liable for Mr. Comeaux’s actions because he was in the course and scope of his employment with LPSD when he raped her; that LPSD’s 1992 investigation of Mr. Comeaux, pursuant to a complaint by his girlfriend was conducted negligently; and that, if the investigation had been handled appropriately, he would have been discovered to be a rapist and incarcerated and, therefore, unable to rape her. After extensive discovery, briefing, and oral arguments, the trial court granted summary judgment in favor of LPSD and Continental. Ms. Smith appeals, assigning three errors: 1) the trial court’s determination that Comeaux was not in the course and scope of his employment with LPSD when he raped her; 2) the trial court’s determination that La.R.S. 9:2798.1 shields LPSD from liability for its hiring/retention policy; 3) the trial court’s determination that LPSD’s failure to investigate allegations of sexual deviancy of Mr. Comeaux did not result in Ms. Smith being raped.

Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Swp’rs of La. State Univ., 591 So.2d 342 (La.1991). | ¡¡The mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

Course and Scope of Employment

Ms. Smith alleged in her petition that Mr. Comeaux was in the course and scope of his employment with LPSD when he raped her; therefore, LPSD is vieari-ously liable for his actions. She contends that the following factors dictate such a finding: 1) Mr. Comeaux’s position as a detective for LPSD resulted in his being “on duty twenty-four hours a day, seven days a week,” so her rape occurred when he would have normally been working; 2) Mr. Comeaux had “the authority and responsibility to take necessary police action with regard to all serious police matters brought to his attention while off duty;” 3) because no vehicle was registered in Mr. Comeaux’S' name, it is reasonable to surmise that he used a police vehicle assigned to him by LPSD; 4) Mr. Comeaux confessed to using a flashlight and gun during the rape which are items he used in his employment with LPSD; 5) he had access to computer records and files at LPSD which he likely used to obtain information regarding his victims before he raped them; 6) her expert witness opined that Mr. Co-meaux believed he was furthering the business of LPSD when he raped her so that his actions were employment rooted.

In LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974), the supreme court identified four factors to consider in determining whether the employer is liable for its employee’s acts:

(1) whether the tortious act was primarily employment rooted;
L(2) whether the violence was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hours of employment.

The court summarized the law on an employer’s vicarious liability for an employee’s intentional torts in Russell v. Noullet, 98-816, pp. 4-5 (La.12/1/98), 721 So.2d 868, 871 (footnote omitted), stating:

The principle of vicarious liability is codified in La. Civ.Code art. 2320, which provides that an employer is liable for the tortious acts of its employees “in the exercise of the functions in which they are employed.” While the course of employment test refers to time and place, the scope of employment test examines the employment-related risk of injury. Baumeister v. Plunkett, 95-2270 (La.5/21/96); 673 So.2d 994, 996, citing Benoit v. Capitol Mfg. Co., 617 So.2d 477, 479 (La.1993). The inquiry requires the trier of fact to determine whether the employee’s tortious conduct was “so closely connected in time, place and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests.” LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974).

We find the following factors important in our consideration of this issue: Mr. Comeaux was on vacation when he raped Ms. Smith; he did not wear a uniform, identify himself as an officer, or otherwise use his position as an officer to gain control over her; in his confession, he stated that the flashlight used in her rape was purchased by him at a nearby pharmacy immediately before the rape; LPSD required its officers to provide their own guns; in his confession, Mr. Comeaux revealed that he did not use the same weapon during every rape and that he owned more than one gun; there is no evidence that the gun used when he raped Ms. Smith was a gun he used in his work for LPSD; in his confession, Mr. Comeaux denied using LPSD computer records and files to select his victims, stating that he chose his victims randomly and that most of the rapes were “strictly opportunity” and committed | ¡^spontaneously or within hours of his having spotted a potential victim. We further observe that there is no evidence that Mr. Comeaux believed he was furthering the business of LPSD when he committed a rape, so that they were in some way employment rooted. In fact, his confession reveals that he knew his actions were wrong and extremely harmful to his victims.

Mr. Comeaux’s actions were purely personal and totally unrelated to his employment with LPSD. Accordingly, the trial court correctly concluded that LPSD is not vicariously liable for his actions.

LPSD’s Hiring Policies

Ms. Smith contends that LPSD should have used psychological testing and/or a polygraph examination in 1984 to evaluate potential and existing LPSD employees’ fitness for duty. She further urges that its failure to implement these screening tools resulted in her being raped by Mr. Comeaux and constituted “legal fault or negligent conduct.” The trial court held that, pursuant to La.R.S. 9:2798.1, Sheriff Breaux’s hiring policy was a policymaking or discretionary act for which he cannot be held liable.

La.R.S. 9:2798.1 provides:

B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

Mr. Comeaux went to work for LPSD in 1979. At that time, Carlo Listi was sheriff. Sheriff Breaux took office in 1984. He made existing LPSD employees reapply for employment and adopted a hiring/retention policy which included criminal background checks, previous employment checks, review of employee records for |,¡then-current LPSD employees, and interviews of LPSD personnel. Thereafter, periodic employee reviews were conducted on all employees. Mr. Comeaux’s performance reviews were all favorable, and many rated his work very high.

Ms. Smith asserts that the use of polygraph examinations and psychological testing was a standard practice for law enforcement agencies when Sheriff Breaux was in office and that his failure to employ these tools was negligent. Citing Fowler v. Roberts, 556 So.2d 1 (La.1989), she argues that the trial court’s interpretation of La.R.S. 9:2798.1 was erroneous, alleging that La.R.S. 9:2798.1 “does not protect against legal fault or negligent conduct at the operational level, but only confers immunity for policy decisions, i.e., decisions based on social, economic, or political concerns.”

In Gregor v. Argenot Great Central Insurance Co., 02-1138, p. 7 (La.5/20/03), 851 So.2d 959, 964, the supreme court held that the object of La.R.S. 9:2798.1 “is to provide immunity from liability for offenses and quasi offenses of public entities, as defined therein, when the acts or omissions of the public entities are policy-making or discretionary acts or omissions.” In doing so, the court found its interpretation of La.R.S 9:2798.1 in Fowler “fatally flawed.” Id. at 967. In Fowler, the supreme court compared La.R.S 9:2798.1 with the Federal Tort Claims Act (FTCA), found them essentially the same, then used the analysis employed in FTCA cases to decide the issue presented therein. In Gregor, the supreme court found this comparison inappropriate because the language of the two provisions “is not essentially the same,” noting “[ujnlike the Louisiana statute, the federal statute does not provide that a ‘policymaking act’ is separate and distinct from a ‘discretionary function or duty.’ ” Id. The supreme court rejected Fowler’s determination that immunity “only exists [7when there is a discretionary act or function ‘grounded in social, economic or political policy’ ” because the phrase does not appear in La. R.S. 9:2798.1. Id. Lastly, the court pointed out that La.R.S, 9:2798.1 “does not make a distinction between operational acts and ministerial or policymaking acts.” Id.

At issue in Gregor was the Department of Health and Hospitals’ inspections of eating establishments to insure that they complied with warning requirements adopted by the agency regarding the ingestion of raw oysters. After reconsidering and rejecting Fowler’s interpretation of La.R.S. 9:2798.1, the supreme court determined that DHH’s duty to enforce the sanitary code was mandatory and that its failure to properly train its sanitarians to comply with its own regulations was not within the purview of La.R.S. 9:2798.1, but was “operational negligence in enforcing the sanitary code.” Id. at 968.

Sheriff Breaux established a hiring/retention policy when he took office which was within the course and scope of his lawful powers and duties. LPSD followed the policy when Mr. Comeaux applied to retain his position with LPSD. No statutes, regulations, or other legal requirements directed the hiring of law enforcement employees. Therefore, Sheriff Breaux’s hiring/retention policy was a discretionary act, and liability cannot be imposed on LPSD for its application of the policy.

LPSD’s Internal Investigation of Comeaux

In April 1992,- Judy Hedgcoth, Mr. Comeaux’s ex-girlfriend, filed a complaint with LPSD, alleging that he had physically abused her approximately two months earlier. LPSD commenced an internal investigation of Ms. Hedgcoth’s complaint. During the investigation, Ms. Hedgcoth also asserted that Mr. Comeaux should not be in the juvenile division because he was a “sex addict” and was sexually perverted. | sLPSD’s Internal Affairs Division (IAD) investigated Mr. Comeaux’s alleged battery of Ms. Hedgcoth but not his alleged sex addiction and sex perversion because the battery was the only allegation of criminal conduct. The investigation was determined to be inconclusive, and no action was taken against Mr. Comeaux.

Ms. Smith asserts that, because of Ms. Hedgcoth’s claims regarding Mr. Co-meaux’s sexual addiction, LPSD should have required him to undergo psychological testing and/or a polygraph examination, claiming that these measures would have resulted in his being investigated and arrested for unsolved sex crimes, specifically the November 2,1986 rape investigated by LPSD. Further, she alleges that LPSD’s failure to require this testing was negligent and resulted in her being raped two years later.

To prevail on a negligence claim under La.Civ.Code art. 2315, the plaintiff must prove by a preponderance of the evidence that: (1) defendant had a duty to conform his conduct to a specific standard (duty); (2) defendant failed to conform his conduct to the appropriate standard (breach of duty); (3) defendant’s conduct was the cause-in-fact of plaintiffs injuries (cause-in-fact); (4) defendant’s conduct was a legal cause of plaintiffs injuries (the risk and harm caused to plaintiff was within the scope of the protection afforded by the duty); and (5) plaintiff incurred actual damages (damages). Theriot v. Lasseigne, 93-2661 (La.7/5/94); 640 So.2d 1305; Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289 (La.1993); Roberts v. Benoit, 605 So.2d 1032 (La.1991); Fowler v. Roberts, 556 So.2d 1 (La.1989). A negative answer to any of the above inquiries will result in the determination of no liability. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94); 646 So.2d 318.

Gray v. Economy Fire & Cas. Ins. Co., 96-667, pp. 6-7 (La.App. 3 Cir. 11/6/96), 682 So.2d 966, 970 (footnote omitted).

‘Whether a duty is owed is a question of law.” Hardy v. Bowie, 98-2821, p. 12 (La.9/8/99), 744 So.2d 606, 614. Duties are often imposed on governmental agencies as a result of the services they perform, and a breach of such a duty may 19result in the imposition of liability for damages that result from that breach. Id. “The determination of whether a particular duty should be imposed on a.particular governmental agency is a policy question.” Id.

Generally, a “police officer has a duty to perform his function with due regard for the safety of all citizens who will be affected by his action.” Prattini v. Whorton, 326 So.2d 576 (La.App. 4th Cir.1976); Justin v. City of New Orleans Through Morial, 499 So.2d 629, 631 (La.App. 4th Cir.1986), writ denied, 501 So.2d 232 (La.1987). “His authority must at all times be exercised in a reasonable fashion and he must act as a reasonably prudent man under the circumstances.” Id. Officers are held to choosing a course of action which is reasonable under the circumstances. Mathieu, supra at 325.

Id.

The investigation revealed the following pertinent information. When Ms. Hedgcoth complained to LPSD, Mr. Co-meaux and Ms. Hedgcoth had known each other for four years and had been living together for two and one-half to three years. They were having difficulties in their relationship and were actually in the process of separating. When Ms. Hedgcoth met with IAD investigators, she could not remember the date, nor even the month, of Mr. Comeaux’s alleged abuse. She admitted that on at least one occasion she spit in his face in anger. She referenced documentation of her allegations of sexual perversion but could not produce the documents. She also stated that she had shared the information with another person but would not provide that person’s name to the investigators.

Ms. Hedgcoth suffered from alcoholism and drug ■ addiction which contributed to the breakup of the relationship. Mr. Co-meaux related that she exhibited rage, depression, and irrational behavior at times during their relationship and that she was abusive to him on occasion. He admitted hitting her as she alleged, explaining that it was in self-defense. He stated she had threatened to kill him on more than one Imoccasion as she aimed a gun at him. All reports from third persons contacted for the investigation indicated that Mr. Co-meaux had been supportive of Ms. Hedgcoth and her children throughout their relationship and had helped her get treatment for her alcohol and drug addictions. An officer of the St. Martin Parish Sheriffs Department (SMPSD), who was married to Mr. Comeaux’s first cousin, also told investigators that he had never seen any signs of abuse and that Ms. Hedgcoth, a former employee of SMPSD, was not reliable or credible and was known to -fabricate.

This information must' be considered from LPSD’s perspective. At the time LPSD investigated Ms: Hedgcoth’s complaints, Mr. Comeaux had a thirteen-year history with LPSD which was, for the most part, very positive. While IAD had investigated ■ three other complaints against him, none were of a'sexual nature. More importantly for purposes of Ms. Smith’s claims, at the time of LPSD’s investigation, only two of the rapes committed by Mr. Comeaux had been committed and investigated. Of those two rapes, only the November 2, 1986 rape had been investigated by LPSD. The other rape, which occurred on November 15, 1987, had been investigated by LPD and that information was not shared by LPD with LPSD until late 1995. Thus, LPSD knew only of the November 2, 1986 rape, and it had occurred almost five and one-half years before Ms. Hedgcoth’s complaint.

As a law enforcement agency, LPSD had a duty to reasonably insure public safety. Rielly v. Town of Church Point, 96-2 (La.App. 8 Cir. 5/8/96), 673 So.2d 1348. Accordingly, it had a duty to perform its investigation of Mr. Comeaux in a reasonable manner and to act reasonably as a result of the information obtained during the investigation. Hardy, 744 So.2d 606. LPSD’s investigation of hi Ms. Hedgcoth’s claims was reasonable in light of the information obtained as a result of the investigation.

In opposition to Defendants’ motions for summary judgment, Ms. Smith submitted affidavits of a former police chief and a licensed clinical psychologist/ neuropsy-chologist who provides fitness for duty evaluations and officer candidate screenings for police agencies. We do not address the affidavit of the former police chief because it does not accurately reflect the facts of this case and the information possessed by LPSD’s IAD when it investigated Ms. Hedgcoth’s complaint.

The psychologist averred in his affidavit that psychological testing would more probably than not have revealed that Mr. Comeaux had a “personality disorder!], propensity to violence and sexual addiction disorder!], and ... psychological disorder!] ... typical of a serial rapist like Randy Comeaux, or that he was evading detection and should be suspended from duty pending further psychological and criminal investigation.” The expert also averred that as a result of psychological testing it is “[m]ore probable than not, I also would have recommended an immediate investigation into Randy Comeaux as a potential sex offender because of the clear danger presented by a less than sexually healthy officer in such a position of trust.”

In 1982, Mr. Comeaux applied for employment with LPD and had to undergo psychological testing and a polygraph examination. His psychological testing was interpreted as normal and, even though his polygraph examination indicated that he had not been completely truthful in answering two questions regarding having stolen anything of value and truthfulness on his application, he completed the screening process, including a personal interview, and was approved for employment. The only reason he did not go to work for LPD was a negative report regarding his back from | ^the physician who conducted his physical. For these reasons and the reasons set forth in our discussion above, this affidavit does not change our conclusion that LPSD’s actions regarding its investigation of Mr. Comeaux were reasonable.

Decree

The trial court’s grant of summary judgment is affirmed. All costs of this appeal are assessed to Susan Smith.

AFFIRMED.

WOODARD, J., dissents and assigns written reasons.

EZELL, J., dissents.

| ¶WOODARD, J.,

dissenting.

Generally, I dissent from the majority’s decision because it reviewed and affirmed this summary judgment on the merits, not a summary judgment proceeding, sanctioning the trial court’s credibility determinations and weighing of the evidence, which our rules, governing summary judgment proceedings, do not permit.

More specifically, Susan Smith asserted three theories'for recovery. However, for her to prevail in this summary judgment proceeding, she needed to show that there is a genuine issue of material fact in dispute concerning, only, one of them. She has done so regarding whether LPSD breached its duty to reasonably investigate Ms. Hedgcoth’s alarming complaints against Randy Comeaux. “Breach” is the only issue before us, as both sides agree that LPSD had a duty to conduct a reasonable 1 ^investigation, and our supreme court has advised that a plaintiff need not prove causation on summary judgment.

Thus, while I agree that Mr. Comeaux was not in the course and scope of his employment with LPSD when he raped Ms. Smith and that La.R.S. 9:2798.1 shields LPSD from liability for its hiring/retention policy, the record is replete with material facts in dispute, regarding the reasonableness of LPSD’s “investigation,” which a jury could find constituted a breach of LPSD’s duty. In fact, the trial court recognized its parameters of authority at the hearing on the Defendants’ motion for summary judgment:

[I’m not] debating.. .the merits of the investigation.... I think we have to set it aside. Because, otherwise, it can’t be decided in the terms of summary judgment. Because there are factual issues about how an investigation occurred. And that’s not appropriate for me to resolve on summary judgment.

(Emphasis added.) Notwithstanding, the trial court did not .apply these precepts. And, it required Ms. Smith to prove causation; i.e., that LPSD’s breach caused her rape.

Although, likewise, the majority required Ms.- Smith to prove that LPSD’s failure to reasonably investigate Mr. Co-meaux caused her to be raped, our Supreme Court has instructed us that “causation is an issue of fact” that is generally reserved for determination at a trial on the merits. As such, neither the trial court nor the majority should usurp the trier of fact’s obligation to determine whether Ms. Smith proved causation. Moreover, in the instant case, Ms. Smith would be able to present evidence at a trial on the merits from which the trier of fact could reasonably conclude that she met her burden of proving that IAD’s “investigation” was “more probably than not” inadequate and, hence, was a substantial factor in bringing about her .harm — being raped.

IsSince material facts are disputed concerning whether the “investigation” was unreasonable and whether this breach was a substantial factor in bringing about Ms. Smith’s harm, a fact finder must make credibility determinations and weigh the evidence, neither of which the law permits a judge to do on summary judgment. Thus, I disagree with the majority’s affirmation permitting the trial court to do so in the instant case, particularly regarding her third theory of recovery.

Namely, to resolve the “breach” question, the majority analyzes the evidence from LPSD’s point of view, narrowing its focus to Ms. Hedgcoth’s credibility and on a couple of Ms. Smith’s arguments — that psychological testing and a polygraph examination, probably, would have led to Mr. Comeaux’s arrest and, therefore, would have prevented him from raping her.

However, I submit that if we take the record as a whole, as we should, and do not exclude parts of Ms. Smith’s evidence, even when we analyze this case from LPSD’s perspective and take into account its belief that Ms. Hedgcoth lacked credibility, still, a trier of fact could conclude that Ms. Smith had met her burden of proof for summary judgment purposes.

The record as a whole reveals that Ms. Hedgcoth provided LPSD with enough independently verifiable information to show that if it had conducted even a basic, “bare-bones” investigation, without cross-referencing fingerprints, without performing a polygraph, and without conducting psychological testing, a jury could conclude that the trail that LPSD would have had to logically follow, probably, would have led to Mr. Comeaux’s arrest. Indeed, the record shows that, later, when Mr. Comeaux was confronted with evidence, he actually confessed.

Just some of the distressing information that Ms. Hedgcoth provided LPSD which a jury could have believed it should have pursued, aggressively, includes that: (1) Mr. Comeaux (an LPSD detective entrusted with the duty to “investigate” sex crimes against juveniles and ensure their protection) acquired sexual gratification from watching interviews of sexually abused children; (2) she caught him masturbating to a videotape, which he took home from work, of an interview of a nine-year-old girl whose case he was investigating; and (3) he described himself, in writing, as “powerless over the fact that when he saw a beautiful woman, he wanted to rape her violently.” (Emphasis added.)

She gave law enforcement the video to which she claimed he had masturbated.

UShe advised law enforcement that Mr. Comeaux needed to go to Bill Leach for counseling after his psychiatrist, Dr. Du-puis, diagnosed him as a sex addict; that he needed Lithium (an anti-psychotic drug) to control his sexual desires; and “Randy’s problems were so severe that [Bill Leach] wanted to hospitalize him. But because of his job he was unable to do that.”

Mr. Comeaux confirmed that he was taking Lithium and that he had gone to counseling, and when IAD asked him where Mr. Leach was and if it could reach him for verification, he answered:

A: Bill’s in [the] Priesthood [in] Massachusetts.
Q: So there’s no way for us to contact him at all. Is there any way for us to contact him to verify what you’re telling us is the truth?
A: Uh, there would be. You could check probably with the Diocese of Lafayette.

(Emphasis added.)

Yet, the record does not indicate that IAD ever tried to contact, either, Mr. Leach or Dr. Dupuis to verify whether any of the information Ms. Hedgcoth had provided was true. A jury could conclude that this was unreasonable and that had it done so, more probably than not, it would have discovered the information Mr. Co-meaux had provided them about his sexual addiction, as well as his own writings to that effect.

Additionally, Ms. Hedgcoth advised law enforcement of Mr. Comeaux’s notebook where he kept these writings, in which he threatened to take her life and detailed the nature of his sexual perversions.

“It was a 12-Step Program for... sex addicts.... Randy stated that he was powerless over the fact that when he saw a beautiful woman, he wanted to rape her violently.... That he could not keep his eyes off of a woman’s breast and vagina.. .when he walked down the street. [H]e stated when he saw a beautiful woman he often fantasized [about] stealing her underwear from her home. [W]hen he passed a washateria he would want to rush in there and steal women’s panties out of the drier.”

IsMs. Hedgcoth, also, advised law enforcement that when she confronted Mr. Comeaux with this information: “Randy got very angry. He busted my lip. I had to go to the hospital.”

She advised law enforcement that he kept “photographs of children, taken from past cases he has worked, in his desk drawer.” (Emphasis added.)

She described a conversation that she had with Lieutenant Pete Hebert, before IAD’s “investigation,” about Mr. Co-meaux’s sexual problems. She claimed that when Lieutenant Hebert had called her, she said: “Randy went to you a while back and he asked to get out of Juvenile. He was told [by his counselor] to get out of juvenile.” He did not need to hear the sexual content of what was going on in these cases. It’s not healthy for him... .Pete said something like he remembers that.” (Emphasis added.)

All of the above were pieces of evidence, whose assessment was not dependent upon Ms. Hedgcoth’s credibility. IAD could have easily verified them independently. Yet, nothing in the record indicates that it ever spoke with Lieutenant Hebert; attempted to obtain Ms. Hedgcoth’s or Mr. Comeaux’s medical records; or attempted to obtain Mr. Comeaux’s consent to search or a warrant to search his residence for any of these physical items. Therefore, a jury could conclude that by failing to verify these pieces of evidence independently it breached its duty to perform a reasonable investigation and that had it done otherwise, more probably than not, the trail of uncovered evidence would have led it to Mr. Comeaux’s guilt and ultimate arrest.

Additionally, a jury could conclude that IAD’s “investigation” was unreasonable on its face because it did not, even, ask Mr. Comeaux basic questions and that the tone and leading nature of its questioning of him did not demonstrate a pro-active intent to uncover the truth:

Q: Without going into anything that’s too personal, uh, as long as you take your medication, are you uh, considered stable and so forth?
Q: So it’s not like you’re trying to keep her [at your apartment] is that right?
Q: So you, you’re not... You didn’t threaten that if she left that you would do her harm or anything like that?
laQ: So you’re ready for her to get, [sic] get away from you?

(Emphasis added.)

Notably, during its twenty-six minute interview of Mr. Comeaux, IAD never asked him about Ms. Hedgcoth’s allegations of sexual misconduct. A jury could find that this was unreasonable, given that these were the allegations it was supposed to be investigating.

Although Ms. Smith need not prove, in this summary judgment proceeding, that law enforcement should have cross-referenced finger-prints, a jury could conclude that after LPSD received IAD’s final report, even given LPSD’s disbelief of Ms. Hedgcoth, it should have, at least, cross-referenced Mr. Comeaux’s fingerprints with those obtained from the scene of any unsolved crimes, including rapes, to ensure that he was not involved in any criminal activity and that had it done so, more probably than^ not, it would have discovered that his fingerprints matched those lifted from the scene of an unsolved rape he committed in 1986, approximately eight years before he raped Ms. Smith in 1994. It was exactly this type of cross matching of fingerprints that, ultimately, led to his confession and arrest in 1999.

Failure to cross-reference fingerprints notwithstanding, a jury could conclude that there were obvious, serious gaps in IAD’s final report which LPSD’s sheriff should not have accepted and, thus, it could hold LPSD accountable for Ms. Smith’s harm.

Therefore, since Ms. Smith has shown the existence of countless genuine issues of material fact in dispute in this summary judgment proceeding, concerning whether LPSD breached its duty to conduct a reasonable investigation of a possible dangerous sexual deviant, investigating sex crimes against juveniles, it was inappropriate for the majority to affirm the trial court’s credibility determinations and weighing of the evidence, and a reversal of its summary judgment grant is warranted.

      . To protect her identity, Plaintiff used the pseudonym, Susan Smith, for these proceedings.

      . For ease of discussion, references to LPSD include Sheriff Breaux, individually, and Sheriff Neustrom, as representative of LPSD.

      . Estate of Adams v. Home Health Care of Louisiana, 775 So.2d 1064 at 1064 (La.2000).

      . Id.

      . See Id. See also Parker v. Harper, 01-548 (La.App. 3 Cir. 10/31/01), 803 So.2d 76.

      . Lazard v. Foti, 02-2888 (La.10/21/03), 859 So.2d 656.


author: [Judge DENNIS R. BAGNERIS SR. _JjLOVE, J.,

text:
    Octavia RILEY v. Coleen SALLEY, State Farm Mutual Automobile Insurance Company as the Liability and U/M Carrier.
    No. 2003-CA-1601.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 2004.

      Laurence Cohen, E. Eric Guirard Injury Lawyers, New Orleans, LA, for Plaintiff/Appellee.
    Gerard J. Dragna, Gerald J. Talbot, Frederick A. Miller & Associates, Metair-ie, LA, for Defendants/Appellants, Coleen Salley and State Farm Mutual Automobile Insurance Company.
    Joseph M. Messina, Lynn C. Gilreath, Lobman, Carnahan, Batt, Angelle & Nader, New Orleans, LA, for Defendant/Appellant, State Farm Fire and Casualty Company.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge TERRI F. LOVE, and Judge DAVID S. GORBATY).
   [Judge DENNIS R. BAGNERIS SR.

Coleen Salley (“Salley”) and her insurer, State Farm Mutual Automobile Insurance (“State Farm Mutual”) seek to reverse the trial court’s judgment rendered in favor of the plaintiff Octavia Riley (“Riley”) for damages she sustained as a result of an automobile accident. We affirm.

FACTS

On October 1, 1999, Riley was involved in a two-vehicle accident at the intersection of Chartes Street and Esplanade Avenue in New Orleans, Louisiana. Riley was struck by another vehicle driven by Salley while she traveling southbound on Esplanade Avenue. Salley ran a stop sign and struck Riley’s vehicle. Riley sustained injuries as a result on the accident.

Riley filed a lawsuit against Salley and her insurer, State Farm Mutual for damages for negligence. Prior to trial, all parties stipulated to liability on the part of Salley in causing the October 1, 1999 accident. The trial court rendered judgment in favor of Riley and against Salley and State Farm Mutual in the amount of $137,652.60. Salley and State Farm Mutual appeal.

I ¡.DISCUSSION

On appeal, Salley and State Farm Mutual contends the trial court erred in finding that Riley’s neck injury and he resulting surgery was caused by the October 1, 1999 automobile accident. Salley and State Farm Mutual argues that Riley failed to present any evidence to support the trial court’s finding of liability on the part of Salley and State Farm Mutual for causing Riley’s injuries. Further, that Riley failed to present evidence to sustain her burden of proof on the issue of medical causation thus the trial court’s judgment should be reduced. We disagree.

Salley and State Farm Mutual contends that in order for Riley to prevail she had to establish a causal relationship between October 1, 1999, accident and the injury of her herniated disc at C4-5 she claimed she sustained as a result of the accident. We disagree. Further, they argue that Riley had to produce medical testimony at trial to meet her burden. Specifically, they argue she had to prove through medical testimony that it was more probable than not that the accident caused that injury or aggravated a previous injury to the extent that she required surgery. We find that the medical testimony during the trial proved it was more probable than not that the accident caused Mrs. Riley’s injury or aggravated her previous injury to the extent that she needed surgery.

In Louisiana tort cases and other ordinary civil actions, the plaintiff, in general, has the burden of proving every essential element of his case, including the cause-in-fact of damage, by a preponderance of the evidence, not by some artificially created greater standard. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); See Prosser, Torts, § 41, p. 269 (5th ed.1984); 2 McCormick, Evidence, § 339 (4th ed.1992); 9 Wigmore, Evidence, §§ 2497, 2498 (3d ed.1940). Proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Insurance Company, 245 So.2d at 155; See Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276 (1964); Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963); Perkins v. Texas and New Orleans Railroad Co., 243 La. 829, 147 So.2d 646 (1962). See also: Sanders, The Anatomy of Proof in Civil Actions, 28 La.L.Rev. 297 (1968); James, Civil Procedure, Section 7.6 at pp. 250-51 (1965); Prosser on Torts, Section .41 at pp. 245-46 (3d ed., 1964); McCormick on Evidence, Section 319 at pp. 676-77 (1954); Malone, Louisiana Workmen’s Compensation, Section 252 at pp. 293-294 (1951). 625 So.2d 1002, Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993).

The defendant’s liability for damages is not mitigated by the fact that the plaintiffs pre-existing physical infirmity was responsible in part for the consequences of the plaintiffs injury by the defendant. It is clear that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Perniciaro v. Brinch, 384 So.2d 392, 395 (La.1980); Sansonni v. Jefferson Parish School Board, 344 So.2d 42 (La.App. 4th Cir.1977); Deville v. United States Fidelity & Guaranty Company, 258 So.2d 694 (La.App. 3d Cir.1972); Dufrene v. Miller, 266 So.2d 462 (La.App. 4th Cir.1972); Rachal v. Bankers and Shippers Insurance Company, 146 So.2d 426 (La.App. 3d Cir.1962); see also Johnston v. Ford Motor Co., 443 F.Supp. 870 (E.D.La.1978). The defendant is liable for the harm it causes even though under the same circumstances a normal person would not have suffered that illness or injury. When the defendant’s tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation. American Motorist v. American Rent-All, 579 So.2d 429 (La.1991); Walton v. William Wolf Baking Company, Inc., 406 So.2d 168 (La.1981); Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Reck v. Stevens, 373 So.2d 498 (La.1979).

It is well settled that a Court of Appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). When there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Lirette v. State Farm Ins. Co., 563 So.2d 850, 852 (La.1990); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). Therefore, the issue for the reviewing court is not whether the trier of fact was wrong, but whether the fact-finder’s conclusions were reasonable under the evidence presented. Rosell, 549 So.2d at 844-45. Touchard v. Slemco Elec. Foundation, 1999-3577 (La.10/17/00), 769 So.2d 1200.

In the instant case, our review of the record reveals that Riley met her burden of proving that he physical injuries were caused by the accident. Riley had previously received physical therapy for a preexisting condition. After the October 1, 1999 accident she experienced increased cervical pain,.loss of sensation in her C-6 dermatome pattern and weakness in her right arm. Riley’s treating physician | ¡¡conducted a myelogram, which indicated she had spinal cord compression on the right side of her cervical spine. Accordingly, we find that Riley is entitled to recover damages for her physical injuries and aggravation of her preexisting condition.

GENERAL DAMAGES

The standard for appellate review of general damages awards is difficult to express as it is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from the jurisprudence is that the discretion vested in the trier of fact is “great” and even vast, so that an appellate court should rarely disturb an award of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967).

In Reck v. Stevens, 373 So.2d 498 (La.1979), the Louisiana Supreme Court commented on appellate review of general damage awards and on the “much discretion” in fixing damages accorded to trial courts by La.Civ.Code art. 1934(3)(1870). The decision pointed out that the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.

In Reck supra, the Supreme Court disapproved the appellate court’s simply reviewing the medical evidence and then concluding that the award for those injuries was excessive, without taking into consideration the particular effect of the | particular injuries on the particular plaintiff. Further, the Supreme Court disapproved of the use of a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case.

The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of general damages. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

The courts of appeal have a constitutional duty to review the law and facts and thereafter render a judgment on quantum based on the merits, determining whether the jury has abused its “much discretion” that the law accords it in awarding damages. La. Const, art. 5, s 10(B); La. Civil Code art. 1934(3); Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976). . In the assessment of damages in cases of offenses and quasi offenses, much discretion must be left to the judge or jury, and before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. In the event the appellate court finds from the record an abuse of discretion, the award may be disturbed by lowering it to the highest point, which is reasonably within the discretion afforded the trier of fact. Carollo v. Wilson, 353 So.2d 249 (La.1977); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

|7In order to determine whether the general damages award shocks the conscience, the court should look to the individual circumstances of the case. In Re Medical Review Panel Bilello, 621 So.2d 6, 10 (La.App. 4 Cir.1993), writ denied, 629 So.2d 1139 (La.). In effect, the award must be so high or so low in proportion to the injury that it “shocks the conscience.” Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir.1991).

In the instant case, Riley was awarded $137,652.00 in general and special damages. The trial court was well within its discretion to award $137,652.00. We find that the award in no way shocks the conscience. Therefore, we find no error in the trial court’s judgment, which the plaintiff was awarded $137,652.00 in general, and special damages. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

LOVE, J., RESPECTFULLY CONCURS WITH REASONS.

_JjLOVE, J.,

respectfully concurs with reasons.

I respectfully concur with the majority; however, I write to separately emphasize that the jury was within its discretion in the award.

The jury found that Ms. Riley was injured in the accident on October 1, 1999 and concluded that the accident aggravated Ms. Riley’s pre-existing condition, precipitating the need for surgery. Ms. Riley’s health care providers all testified that Ms. Riley suffered from a pre-exist-ing injury. Dr. John Steck, Ms. Riley’s neurologist, provided the basis for the causal connection between the injury and the accident in the instant case. Dr. Steck testified that if Ms. Riley experienced new symptoms after the accident, he would conclude that the accident caused her aggravation. Ms. Riley testified to new symptoms on her October 7, 1999 visit. Dr. Steck also found that Ms. Riley’s pain was worse after the accident and that her failure to respond to physical therapy was evidence that the accident contributed to Ms. Riley’s injuries. However, when specifically asked about Ms. Riley’s accident. Dr. Steck testified that he believed that the automobile accident was a minor aggravation to Ms. Riley’s condition. Although, he further testified that he did not believe that the accident played a significant role in the need for surgery, he did testify that, being knocked sideways onto the neutral ground, was lathe precipitating factor in causing Ms. Riley’s cervical disc to begin compressing on her spine.

Ms. Riley explained to the jury how her symptoms changed shortly after her trauma on October 1, 1999. She replayed her collision experience to the jury. She detailed how, on impact, she struck her head on the glass and the visor and she was transported to West Jefferson Medical Center Emergency Room with neck and back pains. As it pertains to her physical therapy with Gavin Matthews, she further testified, “It wasn’t doing the job ... I wasn’t getting relief from it.” Ms. Riley also testified that after the accident, her physical problems began on the right side, the same side as the compressed cord. She explained to the jurors how urgent Dr. Steck was about surgery after the accident, as opposed to his pre-collision demeanor.

The jury found that Ms. Riley’s injuries were aggravated by the automobile accident and that it caused the plaintiff to have surgery. Their verdict should not be reversed if the verdict was reasonably supported by evidence. Burkett v. Crescent City Connection, 98-1237 (La.App. 4 Cir. 2/10/99), 730 So.2d 479, 483. The jury was in a better position to determine the credibility of the Dr. Steck’s and Ms. Riley’s testimony and their award should therefore be affirmed. See Id.

As to the award of damages, the standard of appellate review of a damage award is also manifest error. Clement v. Griffin, 91-1664 (La.App. 4 Cir. 3/3/94), 634 So.2d 412, 441. The appellate court should not determine whether a different award is more appropriate. Id. at 442. An award should not be disturbed where it is reasonably supported by the evidence in the record. Id. However, the court must, under the Louisiana constitution, determine whether the jury has abused its “much discretion” by reviewing the individual circumstances and not prior awards. Id. When determining if an award is excessive, the evidence must be viewed in the light most favorable to the plaintiff. Id.

IsMs. Riley attempted physical therapy, which was unsuccessful. She was therefore required to have neck surgery to correct a spinal cord compression caused by the accident. As a result of this accident, Ms. Riley was required to undergo radiological testing. During the test she had an adverse reaction to the dye and was admitted to the hospital for two days. Ms. Riley also testified that she had another adverse reaction after surgery making the process more difficult. She also testified that she missed approximately five weeks of work. Despite relief of the more severe symptoms, Ms. Riley continues to suffer from a stiff neck. After reviewing the evidence introduced at trial of Ms. Riley’s injuries and viewing it in the light most favorable to her, the award of $100,000 in general damages is reasonable.


author: J^MICHAEL E. KIRBY, Judge.

text:
    David RYAN and Amanda Ryan v. JENA APARTMENTS, L.L.C., et al.
    No. 2004-C-0403.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 2004.
    Bryan J. DeTray, Patricia A. Krebs, King, LeBlanc and Bland LLP, New Orleans, LA, for Respondents, David Ryan and Amanda Ryan.
    Brian C. Bossier, Edwin A. Ellinghau-sen, III, Erin H. Boyd, Blue Williams, LLP, Metairie, LA, for Relator, Jena Apartments, L.L.C.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   J^MICHAEL E. KIRBY, Judge.

The relator, Jena Apartments, L.L.C., seeks review of a judgment denying its motion for summary judgment. The relator’s motion was heard before the trial court on February 6, 2004. The trial court rendered its judgment on February 17, 2004. We deny the writ application.

FACTS

The instant case arises out of a petition for damages filed by the plaintiffs, David and Amanda Ryan, against the relator and its liability insurance carrier for personal injury damages sustained by plaintiff David Ryan when he fell from a fire escape attached to a building owned by the relator.

On March 15, 2002, plaintiff David Ryan, a roofing contractor, responded to a call from Valerie Marcus, a representative for the relator, to inspect the roof of a house owned by the relator located at 4417-19 St. Charles Avenue in New Orleans, Louisiana for leaks in the structures roofing system. The plaintiff was accompanied on the inspection of the building by two of his employees, Todd and Steve Benoit. The plaintiff, the Benoits and Ms. Marcus began the inspection by accessing the roof of the house through a third floor apartment.

12Upon completion of the inspection of the roof, Ms. Marcus and Steve Benoit descended to the ground level by using an interior staircase. The plaintiff decided to inspect the exterior of the building for leakage through an exterior wall. Todd Benoit accompanied the plaintiff on the exterior wall inspection. Ms. Marcus and Steve Benoit were waiting on the ground near the fire escape for the plaintiff to complete his inspection. To facilitate the exterior inspection, the plaintiff and Mr. Benoit descended a fire escape from the third floor. Upon reaching the second floor platform of the fire escape the plaintiff some how turned and fell seventeen feet landing on a fence surrounding a central air conditioning unit.

Within one year of plaintiff David Ryan’s fall, the plaintiffs filed the petition, from which the instant case arises, alleging negligence under La. Civil Code art. 2315 and a claim for liability based on custody of a thing or building under La. Civil Code arts. 2317.1 and 2322. On November 24, 2003, the relator filed its motion for summary judgment with a supporting memorandum and an affidavit from a safety expert. On January 7, 2004, the plaintiffs filed an opposition to the relator’s motion for summary judgment. The plaintiffs also filed a motion to strike the affidavit of the relator’s safety expert.

On February 6, 2004, the trial court heard arguments on the relator’s motion for summary judgment and the plaintiffs’ motion to strike. On February 17, 2004, the trial court denied both motions.

DISCUSSION

The relator complains the trial court erred in denying its motion for summary judgment because there is no evidence the fire escape presented an ^unreasonable risk of harm; and because there is no evidence the relator knew or should have known of any alleged defect in the fire escape.

Appellate courts review summary judgment de novo, using the same criteria applied by the trial courts to determine whether the summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, (La.2/29/2000), 755 So.2d 226, 230.

La. C.C.P. art. 966 provides in part:

A(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
B The judgment sought should be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is not genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C (2) The burden of proof remains with the movant. However, if the mov-ant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La. C.C.P.art. 967 provides in part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that he affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto |4or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

La. Civil Code art. 2315 provides:

A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.

La. Civil Code art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

La. Civil Code art. 2322 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon [Ra showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
* * *
Article 2317.1, enacted in 1996, effectively abrogates the concept of “strict liability” in cases involving defective things and imposes a negligence standard based on the owner or custodian’s knowledge or constructive knowledge of the defect. Although article 2317.1’s requirement of constructive knowledge cannot be construed so broadly as to revive the regime of strict liability, it does impose a reasonable duty to discover apparent defects in things under the defendant’s garde. (Citations omitted). Hagood v. Brakefield, 35,570 (La.App. 2 Cir. 1/23/02), 805 So.2d 1230, 1233.

This court in Lofton v. Hayward, 2000-2019 p. 5 (La.App. 4 Cir. 1/9/02), 806 So.2d 877, 882-883 found:

In order to recover in strict liability under Article 2317 or 2322 against the owner of a building, the injured person must prove that the building or its appurtenances posed an unreasonable risk of injury to others, and that his damage occurred through this risk. Upon proof of these elements, the owner is responsible for the damages, unless he proves that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. The owner is absolved from his strict liability neither by his ignorance of the condition of the building, nor by circumstances that the defect could not easily be detected.
The requirement that an injured person in order to recover under Article 2317 or 2322 must prove that the risk from which his damage resulted posed an unreasonable risk of harm places a limitation on a building owner’s strict liability. He cannot be held responsible for all injuries resulting from any risk posed by his * *6 building, only those caused by an unreasonable risk of harm to others. (Emphasis Supplied).
IfiThe unreasonable risk of harm criterion, however, is not a simple rule of law which may be applied mechanically to the facts of a case. Likewise, strict liability requires the plaintiff to prove that the vice or defect of a thing is a condition which poses an unreasonable risk of harm to others. The unreasonable risk of harm criterion is not a simple rule of law which can be applied mechanically to the facts of a case. Justice and social utility must serve as guideposts and moral, social and economic values must be considered in a determination of whether the risk is unreasonable. Claims and interests should be balanced, risk and gravity of harm should be weighed, and individual and societal rights and obligations must be considered. (Citations omitted).

The relator argues the plaintiffs have failed to show how having an open end on one side of the fire escape was a defect creating an unreasonable risk of harm. To support this argument the relator cites the affidavit of its safety expert, Michael J. Frenzel, who in his sworn statement said: “There is no recognized code or standard which would require the second story landing of the fire escape at issue to have a restraint or chain at the end where the plaintiff fell. The fire escape at issue violates no applicable safety and/or building codes and is in conformance with industry standards.”

To refute the relator’s argument, the plaintiffs aver the fire escape posed an unreasonable risk of harm because the fire escape landing was seventeen feet above the ground; the second story landing did not extend as far as the third story landing above it; there was no railing, no chain, no warning sign, no different colored paint or any other sign to indicate the sudden ending of the landing and the drop to the ground below. The plaintiffs also cite Rich v. Tench Electric Motor Works, Inc., 26,072 (La.App. 2 Cir. 8/19/94), 642 So.2d 293 for the proposition that a platform without a safety railing is an unreasonably dangerous condition. In Rich, a spectator at a music event being held in a warehouse sued the owner after |7she fell from a platform at the rear of the building. The district court entered judgment for the owner and the plaintiff appealed. The appellate court found the trial court was clearly wrong in finding that the owner of the building was not liable for the victim’s injuries. The appellate court assessed the plaintiff 65% of the fault for her injuries and 35% to the owner who had not provided a guardrail or locked door leading to the platform.

The relator further argues if the lack of a guardrail posed an unreasonable risk of harm the risk was obvious, and the plaintiffs experience as a roofer working at heights gave the plaintiff specialized knowledge of dangers of falling from a building. To support this argument the relators cite Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585. In Pitre, a university student who was paralyzed in a sledding accident on campus and his parents sued the university and its board of trustees. The district court granted summary judgment for the defendants and the plaintiffs appealed. The appellate court reversed and remanded the case denying appellate review. On remand judgment was rendered for the defendants. The plaintiffs appealed. On appeal the trial court was reversed and the plaintiffs were awarded damages. The defendants sought writs from the Louisiana Supreme Court, which the Court granted. The Court reversed the appellate court finding the university had no duty. The Court also noted:

A landowner owes a plaintiff a duty to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. It is the court’s obligation to decide which risks are unreasonable, based upon the facts and circumstances of each case. Whether a particular risk is unreasonable is a difficult question which requires a balance of the intended benefit of the thing with its potential for harm and the cost of prevention. In making this determination in negligence actions, the “obviousness” and “apparentness” of the | ^complained of condition have historically been taken into consideration.
[T]he proper test to be applied in determining a landowner’s liability under articles 2815 and 2316 of the Civil Code is “ ‘whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others,’ ” .... The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner.
Thus, the obviousness and apparentness of a potentially dangerous condition are relevant factors to be considered under the duty-risk analysis. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. (Citations omitted).
Pitre, at 590 and 591.

The plaintiffs counter that argument by averring, in order for a danger to be obvious that it does not constitute an unreasonable danger, there must be an extreme situation of one-sided fault of the plaintiff. To support their argument the plaintiffs cite DeStevens v. Harsco Corporation, 94-1183 (La.App. 4 Cir. 3/16/95), 652 So.2d 1054. In DeStevens, the widow of a worker who was killed when scaffolding he was on touched an uninsulated powerline. The plaintiff sued the property owner, the scaffolding manufacturer, and the electric utility company operating the powerline. The district court granted summary judgment for the property owner, and the plaintiff appealed. This court held: the landowner owed a duty to warn or remedy the unreasonable danger on the property; the landowner 19had a duty to the deceased worker; and there were genuine issues of material fact as to whether danger from scaffolding and uninsulated powerline was unreasonable and as to whether the landowner fulfilled his duty.

The relator’s last argument is that, even if the condition of the fire escape was an unreasonable risk of harm, the plaintiffs cannot prove the relator had knowledge of the alleged defect. The plaintiffs argue that the relator, through Valerie Marcus, had constructive knowledge of the condition of the fire escape. Ms. Marcus and her family have owned the property, which constitutes Jena Apartments, since the 1960’s; Ms. Marcus lived on the property for seven years; and Ms. Marcus has managed the property since the mid 1980’s. Additionally, the plaintiffs cite Ms. Marcus’ deposition testimony in which she allegedly stated she was aware of the structure of the fire escape prior to the plaintiff David Ryan’s fall.

The questions of whether the relator owed a duty to plaintiff David Ryan to indicate in some way where the fire escape ended; whether the condition of the fire escape should have been obvious to the plaintiff; and whether the plaintiffs experience as a roofing contractor gave him specialized knowledge on the dangers of heights are all questions of fact that make summary judgment inappropriate. Therefore, we deny this writ application.

WRIT APPLICATION DENIED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    ST. CHARLES PARISH HOSPITAL SERVICE DISTRICT No. 1 d/b/a St. Charles Parish Hospital v. OCHSNER HEALTH PLAN, INC.
    No. 03-CA-1475.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Matthew K. Brown, Jack Mark Stolier, James P. Kovata, New Orleans, LA, for PlaintiffiAppellee.
    Stephen D. Marx, Metairie, LA, for De-fendani/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

Ochsner Health Plan, Inc. (OHP) appeals from a summary judgment rendered in favor of St. Charles Parish Hospital. For the reasons stated more fully herein, we reverse the trial court’s judgment and render partial summary judgment in favor of OHP. The matter is further remanded to the trial court for further proceedings consistent with this opinion.

Facts and Procedural History

Ochsner Health Plan is licensed by the State of Louisiana as a Health Maintenance Organization (HMO) which provides medical benefits for its members. Additionally, OHP contracted with the Centers for Medicare and Medicaid Services, the federal agency which regulates Medicare, to participate as a Medicare + Choice organization. In connection with this status as health insurance issuer, OHP contracted with numerous providers of medical services which make up its network of providers. As provided by contract, these medical service providers are paid a predetermined amount by OHP for medical services rendered to OHP members.

| ^During all applicable periods herein, St. Charles Parish Hospital was not in OHP’s network of providers, and there was no contract between OHP and the Hospital. OHP was nevertheless obligated by federal regulation to pay for services rendered by the Hospital to OHP members. However, because there is no contract between these parties, the amount of such payment is not subject to a negotiated rate. Rather, the required payment is governed by federal regulation.

Specifically, 42 CFR 422.214(b) provides in part:

(b) Services furnished by section 1861(u) providers of service.
Any provider of services as defined in section 1861(u) of the Act that does not have in effect a contract establishing payment amounts for services furnished ■ to a beneficiary enrolled in an M + C [Medicare + Choice] coordinated care plan or M+C private fee-for-service plan must accept as payment in full the amounts ... that it could collect if the beneficiary were enrolled in original Medicare.

Ochsner Health Plan conducted an audit in 2002 of the payments made to St. Charles Parish Hospital for outpatient services furnished to enrollees of its Medicare + Choice plan from January 1, 1998 to determine whether payments made to the Hospital were in excess of amounts required by the Medicare law. Based on the audit, OHP determined that during this time period, the Hospital had been overpaid a total amount of $85,337.53 Thereafter, OHP sent two demand letters to the Hospital dated May 10, 2002 and May 15, 2002 seeking a refund of these overpay-ments.

On January 9, 2003, St. Charles Parish Hospital filed a petition for declaratory judgment against OHP seeking a judgment that no overpayments had been received by the Hospital from OHP. This suit was filed in response to the demand letters sent by OHP to the Hospital seeking a refund. The petition further alleged that OHP’s demand for a refund of any | ¿overpayments made to the Hospital was untimely pursuant to the provisions of Regulation 74 of the Louisiana Department of Insurance.

OHP answered this petition, and also filed a reconventional demand against the Hospital seeking a refund of the overpay-ments made to the Hospital for treatment of OHP members. Thereafter, OHP filed a motion for partial summary judgment solely on the issue of liability, arguing that the Hospital was required by law to reimburse OHP for the alleged overpayments. St. Charles Parish Hospital also moved for summary judgment declaring that it is entitled to retain all funds paid by OHP for the treatment of its plan members.

The trial court heard both motions on September 4, 2003. The trial court denied the motion filed by OHP and granted summary judgment in favor of St. Charles Parish Hospital. OHP now appeals, arguing that the trial court erred in its application of Department of Insurance Regulation 74 and seeking a partial summary judgment in its favor on the issue of liability.

Analysis

The parties in this matter do not dispute that as an out-of-network provider, the Hospital must accept as payment for services furnished to an OHP Medicare + Choice member the amounts that it could collect if the patient were enrolled in original Medicare. Further, the parties do not dispute that the amount that could have been collected if the OHP members were enrolled in Medicare was less than the amount paid to the Hospital by OHP. However, the dispute in this case centers on the appropriate time frame for filing a claim for recovery of such overpayments.

In granting summary judgment in favor of the Hospital, the trial court held that OHP’s claims for recovery are time-barred as a matter of law, |firelying on certain provisions of Regulation 74 of the Louisiana Department of Insurance, which states in pertinent part:

Section 6015. Limitations on Claim Filing and Audits
A. Health insurance issuers that limit the period of time that a claim may be filed for payment of benefits shall have the same limited period of time following payment of such claims to perform any review of audit for purposes of reconsidering the validity of such claims.

On appeal, OHP contends that the trial court’s reliance on Regulation 74 of the Louisiana Department of Insurance is misplaced. We agree.

Regulation 74 is promulgated in LAC 37:XIII, Chapter 60 and governs the payment of health coverage claims by health insurance issuers and preferred provider organizations. The stated purpose of the regulation as contained in Section 6001 is to implement the statutory requirements of health insurance issuers under Title 22 of the Louisiana Revised Statutes of 1950, which establishes the statutory requirements for payment of claims by health insurance issuers serving residents of Louisiana. Section 6015 of the Regulation governs the limitations on claim filing and audits, and provides that health insurance issuers (such as OHP) that limit the period of time that a claim may be filed for payment of benefits shall have the same amount of time following payment of such claims to conduct and perform any review or audit of such payments.

There is no dispute in the present case that the Hospital was not part of OHP’s network of providers. Further, the record is clear that there was no contract in existence between OHP and the Hospital during any relevant time period herein specifically limiting the period of time that the Hospital could file a claim with OHP for benefits.

Un support of its position that Regulation 74 applies to OHP’s claim for reimbursement, the Hospital submitted the two affidavits of Debra Homer, director of business services for the Hospital. In her first affidavit, Ms. Homer stated that in her experience, she believed that it was the practice of OHP to require submission of claims for payment within 90 days from the date of the service. In her second affidavit, Ms. Homer stated that an OHP employee informed her in a telephone conversation four days before the summary judgment hearing that OHP set a one year period for out-of-network providers to submit claims for payment, although she stated she still believed there was a 90 day limitation in effect at the time the Hospital rendered services to OHP members.

The record also contains a copy of correspondence from counsel for OHP which states that although OHP limits claims filed by its network providers to 90 days, OHP does not have a limitation applicable to the filing of claims by service providers which are not within OHP’s network and which are not subjected to the same contractual requirement as the network providers. Additionally, the record contains an affidavit of George Renaudin, II, a senior vice president for OHP, who states that OHP has no requirement that providers with whom it has no contract submit their claims within any specific time frame.

The question of whether OHP as a health insurance issuer required the Hospital to submit claims within a limited time period is disputed by the parties. OHP cites to federal regulation, 42 CFR 424.44, which governs the filing of Medicare claims as evidence that such claims are not required to be submitted within 90 days. We also find that the affidavits submitted by the Hospital do not conclusively show that OHP limited the period of time in which a claim for payment could be submitted by an out-of-network 17provider. In fact, the affidavits submitted by the Hospital are conflicting in their account of the time period within which a claim may be filed.

As the record in this matter fails to conclusively show that OHP’s claim for reimbursement was time-barred by the provisions of Regulation 74, the trial court erred in granting summary judgment in favor of the Hospital on this basis. Rather, our review of the record fails to reveal evidentiary support for the Hospital’s claim that OHP limits out-of-network providers to a specified period within which to file a claim.

Further, our review of the record shows that OHP is legally entitled to receive reimbursement for any overpay-ments made to the Hospital. Federal Medicare regulations, specifically 42 CFR 422.214(b), provides that the Hospital must accept as payment in full from OHP the amount it could have collected if the beneficiary were enrolled in original Medicare. Although it is undisputed that the Hospital billed OHP for more than this amount and received payment accordingly, OHP retained the right to audit the amount paid and to seek reimbursement if necessary.

Based on the record before us, we find no factual dispute that the Hospital was overpaid for services rendered or that OHP is legally entitled to claim reimbursement for the overpayment. Under these circumstances, OHP is entitled to judgment as a matter of law that the Hospital is obligated to reimburse the overpay-ments made during the applicable periods.

Conclusion

Accordingly, the summary judgment of the trial court in favor of St. Charles Parish Hospital and against Ochsner Health Plan, Inc. is hereby reversed. We hereby render partial summary judgment in favor of Ochsner Health Plan, Inc. and against St. Charles Paris Hospital based on our determination that OHP is entitled as a matter of law to recover 18overpayments made to the Hospital pursuant to federal regulation. The matter is further remanded to the trial court for a determination of the amount of reimbursement owed to OHP. St. Charles Parish Hospital shall bear all costs of this appeal.

REVERSED AND RENDERED; CASE REMANDED.


author: J^EDWIN A. LOMBARD, Judge.

text:
    Vicki Coudrain LANZA v. Louis LANZA.
    No. 2003-CA-1382.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 2004.
    Mitchell J. Hoffman, Marynell L. Piglia, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Steven J. Lane, Herman, Herman, Katz & Cottar, LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).
   J^EDWIN A. LOMBARD, Judge.

The plaintiff/appellant, Vicki Coudrain Lanza (“Ms. Coudrain”), appeals the trial court judgment of March 7, 2002, which held that the State Farm agency operated by defendant/appellant, Louis Lanza (“Mr. Lanza”), including any income earned after the Petition For Divorce was filed, is neither community property nor property subject to partition. After review of the record, the applicable law, and the arguments of the parties, we affirm the trial court judgment in part and reverse in part, and remand this matter for further proceedings consistent with this opinion. ,

Pertinent Facts

Ms. Coudrain and Mr. Lanza were married on August 1, 1975. On January 23, 1981, Mr. Lanza entered an agreement with State Farm to become a State Farm agent, establishing the “Lou Lanza State Farm Insurance Agency” (“the Agency”). Ms. Coudrain helped Mr. Lanza with the business during the marriage. The couple separated in November 1996, and Ms. Coudrain filed the Petition For Divorce on September 11, 1997. After the parties lived apart for the requisite period of time in accordance with La. Civ.Code art. 103(1), a Consent Judgment of Divorce was entered on August 12, 1998. The parties were unable to reach agreement as to the | ¡^partition of the community property, particularly as to whether the Agency was community property or property subject to partition, and, accordingly, a three day trial (over the course of four months) was held by the trial court to determine “whether the State Farm agency managed by Louis Lanza or any benefits derived there from are community property subject to partition.” After finding that “the State Farm agency is a non-entity” and “not a ‘thing’ which is subject to partition,” the trial judge rendered judgment in favor of Mr. Lanza on March 7, 2003, with the decree that the Agency, “including any income earned by Mr. Lanza after the filing of the Petition for Divorce, is not property subject to partition, nor is it community property to which [Ms.] Coudrain holds an ownership interest.” (Emphasis added.) Ms. Coudrain appeals this judgment.

Discussion

Ms. Coudrain raises two assignments of error on appeal: (1) the trial court erred as a matter of law in holding that the Agency was neither property subject to partition nor community property in which Ms. Coudrain holds an ownership interest; and (2) the trial court erred as a matter of law in holding that the income generated by the Agency after the filing of the Petition for Divorce was neither property subject to partition nor community property in which she holds an ownership interest.

Standard of Review

A trial court’s findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Ross v. Ross, 2002-2984, p. 18 (La.10/21/03), 857 So.2d 384, 395.

| «Assignment of Error No. 1

First, Ms. Coudrain argues that, pursuant to La. Civ.Code art. 2369.3, the Agency is a community enterprise and, as such, its value and assets are subject to partition as community property. Article 2369.3, entitled “Duty to preserve; standard of care,” provides as follows:

A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect.
A community enterprise is a business that is not a legal entity.

The appellant contends that the term “community enterprise,” as it appears in Article 2369.3, should be broadly interpreted to circumvent the traditional definition of property under the Louisiana Civil Code, as well as the specific terms of the contract between Mr. Lanza and State Farm, to find that the Agency is subject to partition or inclusion in the community property regime in this case. Neither Louisiana jurisprudence nor legislative history supports this novel analysis, however.

Article 2369.3 was enacted in 1995 to impose an affirmative duty on the spouse in control of former community property to preserve and manage it and to create a higher standard of care in managing community property after termination of a community regime when there is no longer an assumption that the spouse in control of the property will act in the best interest of both spouses. As such, this article pertains to accountings between spouses as to the community property and application of provisions governing co-ownership of former community property. La. Civ.Code art. 2369.3, commentary (a). Thus, for purposes of imposing this duty and higher standard of care, the article inserted the term “community | ¿enterprise” in recognition of the fact that a “business as a collective of things, although it has no juridical personality, continues after termination of the community regime....” La. Civ.Code art. 2369.3, commentary (b). Accordingly, if it were determined that the Agency was community property or that Ms. Coudrain held an ownership interest in the Agency, Mr. Lanza would be held to a higher standard of care in his management of the Agency after the Petition of Divorce was filed.

In this case, however, although it appears that Ms. Coudrain substantially contributed to building the Agency’s clientele, only Mr. Lanza entered into the contract with State Farm and that contract specifically provides that Mr. Lanza does not own or have any vested interest in the Agency bearing his name. Accordingly, we find no error in the trial judge’s determination that the Agency is a non-entity and not a “thing” under the Louisiana Civil Code subject to partition.

Assignment of Error No. 2

Alternatively, Ms. Coudrain argues that the trial court was erroneous in finding that she was not entitled to an interest in renewal commissions generated after the termination of the community on policies first written during the community’s existence. Based on Ross, supra, issued shortly after the trial judge rendered her decision in this case, we are inclined to agree.

In Ross, the Louisiana Supreme Court addressed the issue of whether renewal commissions received by a State Farm agent on insurance policies written before the existence of the community are the result of labor, skill or industry are “property” from which the State Farm agent derives civil fruits which may fall within the Louisiana community property regime. After an extensive review of the historical background of the concept of “fruits” in Louisiana and the rights of | ^spouses with regard to fruits under the Louisiana community property regime, the Ross Court determined that the renewal of a pre-exist-ing State Farm insurance policy constitutes a juridical act and, thus, a thing under La. Civ.Code art. 551 from which civil fruits may be derived and that “if the renewal commissions are the result of the State Farm agent’s effort, skill, or industry during the existence of the community property regime, the renewal commissions, or a at least a portion thereof, are community property.” Ross, p. 13, 857 So.2d at 392. Accordingly, under Ross, Ms. Coud-rain is entitled to at least a portion of the renewal commissions from policies written during the existence of the community property regime. See also La. Civ.Code art. 2339 (natural and civil fruits of separate property produced during the existence of the community property regime are community unless a spouse reserves them as his separate property in a declaration made by authentic act or an act under private signature duly acknowledged).

Mr. Lanza argues, however, that under his contract with State Farm, he receives only a salary and does not receive renewal commissions from State Farm. The Ross Court did not review specifically the language of the State Farm contract, noting only that Mr. Ross, like Mr. Lanza, was an independent insurance agent with State Farm and operated a State Farm agency bearing his name, but did reject the contention that renewal commissions could be deemed salary. Accordingly, to the extent that the standard State Farm contract may be interpreted to circumvent basic concepts of Louisiana property law and the rights of spouses with regard to fruits under the Louisiana community property regime, it is against public policy and, therefore, unenforceable. See La. Civ. Code art. 1968; La. Civ.Code art. 1971.

| Conclusion

For the foregoing reasons, we affirm the judgment of the trial court with respect to the determination that the Agency is not property subject to partition or community property to which Ms. Coudrain holds an ownership interest. We reverse the judgment with respect to whether “any income earned by Mr. Lanza after the filing of the Petition of Divorce” is property subject to partition or community property to which Ms. Coudrain holds an ownership interest. We remand this matter for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.