author: COOKS, Judge.

text:
    STATE of Louisiana, In the Interest of D.B. v. M.O. and L.O.
    No. 2003-1408.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2004.

      Stephen Berniard, Jr., Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Appellee, State of Louisiana, Department of Social Services.
    Jamie Bice, Bice & Palermo, Lake Charles, LA, for Appellee, D.B., a minor.
    Henry Liles, Liles and Redd, Lake Charles, LA, for Appellant/Intervenors, M.O. and L.O.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

STATEMENT OF THE CASÉ

M.O. and L.O. appeal the decision of the juvenile court placing the minor child, D.B., age five, in the home of his great-aunt, V.V. and her husband C.V. who reside in Port Arthur, Texas. M.O. and L.O. wish to adopt D.B. and became involved in the judicial determination of D.B.’s placement by petition of intervention.

On June 27, 2001, the State of Louisiana, Department of Social Services, Office of Community Services (OCS) filed a petition to have D.B. removed from the custody of his biological mother and adjudicated a child in need of care. The minor child, age three at the time, was found with cigarette burns on his arm and fingertips. On August 17, 2001 following a hearing, D.B. was adjudicated a child in need of care and was placed in the certified foster home of S.F. in Welch, Louisiana. At the same time, OCS began to search for permanent placement with a relative of the child. A study was conducted to evaluate the home of C.V., stepmother of D.B.’s father. She could not take D.B. because of the presence of children and grandchildren already residing in the home. Another study was conducted to evaluate the home of D.B.’s maternal grandparents. Their home was not suitable because of past and pending criminal charges against D.B.’s maternal grandfather.

As early as August 17, 2001, an OCS report indicates the department was in the process of conducting a study on the home of D.B.’s paternal great-aunt, V.V., in Port Arthur, Texas. The V.V., and her husband, C.V., were identified by D.B.’s father as relatives who may be willing to care for D.B. On December 4, 2001, OCS requested the State of Texas conduct a study on home of V.V. pursuant to the provisions of the Interstate Compact for the Protection of Children.

On February 28, 2002, OCS received a favorable written report from its ^counterpart agency in Texas regarding V.V.’s home. Pursuant to that favorable report, D.B. was placed in V.V.’s home on May 10, 2002, after two trial weekend visits. Currently, D.B. is residing with V.V. and C.V. with legal custody remaining in OCS. When D.B.’s parents failed to work on a case plan for D.B., OCS changed the case plan for D.B. from reunification to adoption. On November 15, 2002, a judgment was entered terminating all parental rights and certifying D.B. for adoption.

It was from August 17, 2001 to May 10, 2002, while D.B. was in the certified foster care of S.F., that M.O. and L.O. became involved in D.B.’s life. The foster mother, S.F., found D.B. difficult and disruptive and requested funds from OCS to place D.B. in daycare. During this time, M.O. and L.O., friends of the foster parents began to help the couple by babysitting for D.B. on a regular basis, on weekends and on holidays. M.O. and L.O. became attached to D.B. and on June 11, 2002, M.O. and L.O. intervened in the juvenile proceeding seeking placement of D.B. in their home and seeking to adopt D.B.

A disposition hearing was held on February 6, 2003. An attorney was appointed to represent the interests of the minor child. OCS recommended that D.B. remain in V.V.’s home with adoption by V.V. and C.V. being the permanent goal. Following a two-day hearing, the juvenile court continued placement of the child in the V. home. However, the court found the case plan proposed by OCS inappropriate and ordered OCS to revise the plan to include the following: (1) a medical report to validate and explain D.B.’s medication provided in the diagnosis of A.D.H.D.; (2) the effect of the current sleeping arrangements in the V. home and plans for future sleeping arrangements; (3) an assessment of the language barrier; (4) the effects of a bilingual home on D.B.’s speech impediment; (4) a follow-up with Dr. Menou and a report from her to be submitted to the court five days prior to a hearing; (5) a family |fitherapy plan to address future functioning of the family to address the specific needs of D.B.; (6) updated background cheeks. The juvenile court judge allowed monthly visitation by the M.O. and L.O. to continue pending another disposition hearing.

A second hearing was held on March 28, 2003. At the conclusion, the juvenile court was satisfied that OCS had adequately addressed all issues. The juvenile court approved the case plan allowing continued physical custody with V.V., with the eventual goal of adoption. The M.O. and L.O. filed this appeal asserting the following assignments of error:

(1) The trial court erred in allowing C.A., daughter of V.V., to testify despite the fact that she violated a sequestration order;
(2) The trial court abused its discretion in approving placement of D.B. in the home of a distant relative and approving the relative for adoption.;
(3) The trial court erred in failing to give proper weight to the position of D.B.’s attorney and to the wishes and desires of D.B.’s parents or foster parents.

For the reasons assigned below, we affirm the decision of the juvenile court.

LAW AND DISCUSSION

Testimony ofC.A.

M.O. and L.O. contend the juvenile court improperly allowed the testimony of C.A., daughter of V.V. Prior to testifying, C.A. admitted to discussing with her mother and stepfather the substance of their testimony. However, the juvenile court judge noted, the testimony by the V.V. and her husband, C.V., provided very little in the way of substantive evidence since neither parent spoke or understood much English. The juvenile court found justice would be better served by allowing the testimony of C.A. regarding her role in D.B.’s care and the day-to-day living conditions within the home. We find no error in this decision. It is within the juvenile court’s discretion to allow a witness to testify even if the sequestration order is | ^violated. State v. Kimble, 407 So.2d 693 (La.1981); State v. Wilson, 520 So.2d 935 (La.App. 3 Cir.1987).

OCS Case Plan for D.B.

Under the statutory scheme of the Louisiana Children’s Code, when a court assigns custody of a child to OCS, OCS “shall have sole authority over the placements within its resources and sole authority over the allocation of other available resources within the department for children judicially committed to it’s custody.” La.Ch.Code art. 672(A). This article has been interpreted to mean once custody of a child is placed with OCS, if the court finds the child is not being properly cared for it may remove the child from the custody of OCS. However, the court is without power to designate a particular treatment plan or placement. State in the Interest of L.C.B., 01-2441 (La.1/15/02), 805 So.2d 159. Once the department has obtained custody, statutory provisions require OCS to formulate a case plan for the child which shall be reviewed by the court at a case review hearing. La.Ch.C. arts. 673 and 677. At the case review hearing, the court may approve the plan or find that the case plan is not appropriate and order OCS to revise the case plan accordingly. La.Ch.C. art., 700; State in the Interest of L.C.B., 01-2441 (La.1/15/02), 805 So.2d 159. In State in the Interest of L.C.B., the court stated:

Under the statutory scheme in place for children adjudicated in need of care and placed in the custody of OCS, the court retains the ultimate authority over a child’s placement and may approve or reject a case plan submitted by the Department, but it may not revise the plan or make any particular placements itself.

Id. at 165.

Under La.Ch.C. art. 702, the court shall conduct a hearing to “determine the permanent plan for the child that is most appropriate and in the best interest of the child....” An appellate court cannot set aside a juvenile court’s findings of fact in 17the absence of manifest error or unless those findings are clearly wrong. The juvenile court is in the unique position to hear the witnesses at trial and assess their credibility. State in the Interest of S.M.W., 00-3277 (La.2/21/2001), 781 So.2d 1223. We have reviewed the record and we find there is ample evidence to support the finding of the juvenile court that D.B. will be provided a safe, nurturing environment in the home of his great-aunt, V.V. We find no error in the decision of the juvenile court affirming the OCS case plan for D.B.

The Louisiana Children’s Code requires the state to look first for the home of a relative in which to place a child taken from his biological parents. Louisiana Children’s Code Article 622 provides, in relevant part:

A. Unless the best interest of the child requires a different placement, a child who is determined to be abused, neglected, or harmed and whose parents have failed to protect, or who is taken into custody as a child in need of care shall be placed, pending a continued custody hearing, in accordance with this priority:
(1) In the home of a relative who is of the age of majority and with whom the child has been living in a wholesome and stable environment and who is willing and able to continue to offer such environment for the child pending an adjudication hearing.
(2) In the home of a relative who is of the age of majority and who is willing and able to offer a wholesome and stable environment for the child pending an adjudication hearing.
(3) In foster care under the supervision of the department until further orders of the court.
(4) The following, among other relatives, are those who may be considered and to whom care of the child may be entrusted and are listed in the order of priority:
(a) Grandparent.
(b) Aunt or uncle.
(c) Sibling.
(d) Cousin.

The record indicates OCS attempted to place D.B. either in the home of his maternal grandparents or in the home of his father’s stepmother. Unfortunately, | ^neither home was satisfactory. As early as August 2001, V.V.’s home in Port Arthur, Texas was identified by D.B.’s father as a possible placement for D.B. Placing D.B. in the foster home of a non-relative was neither the first, nor best, choice for D.B., who had been shuffled from one person to another. However, in the interim, before a home study could be conducted on V.V.’s home in Texas, placing D.B. in foster care was the only choice. His foster home care was not consistent. The record indicates even while D.B. was in the foster home of S.F., his care was overseen by someone other than S.F. He was sent to M.O. and L.O. on a regular basis often spending weekends and holidays in their home. He began to call them “Mommy L.” and “Daddy M.” This inconsistency in caregivers is naturally confusing for a child of four. While we do not doubt the sincerity of M.O. and L.O., their willingness to provide a good home, or their attachment to D.B., we find the record supports the case plan proposed by OCS to place D.B. with his relatives in Port Arthur, Texas. M.O. and L.O. allege D.B.’s father is unknown or that V.V. is not actually related to D.B. The record does not support these allegations. D.B.’s father acknowledged paternity and, early on, identified V.V. and C.V. as family members who may be willing to care for D.B.

The initial home study conducted by the Texas Department of Protective and Regulatory Services dated February 28, 2002 was favorable. Living in the V. home are V.V., age 46, born in Honduras, and her husband of ten years, C.V., age 46, born in Cuba. C.V. does not have biological children of his own but helped V.V. raise her three children since 1991. Mrs. V.V.’s son, B.A., age 28, is married, has two children, and resides in Port Arthur near his mother. The two grandchildren visit the V. home often. C.A., age 21, resides with her mother and stepfather. She works and is a part-time student at Lamar University in Port Arthur majoring in nursing. Her sister, EjA.,9 age 26, is employed at a local restaurant and lives with her mother and stepfather. V.V. and C.V., E.A. and C.A. live in a clean, well-kept, adequately furnished three bedroom home in a quiet, family-friendly neighborhood. The couple owns their home. All family members are U.S. residents and hold green cards. These cards ensure permanent residency as long as certain crimes are not committed. The report concludes:

C. and V.V. appear to have a genuine desire to care for their great nephew. The couple’s adult children, E. and C. state that they are excited at the idea of having a child living in the home on a permanent basis. The family appears to be extremely family-oriented and wish to include D. in their home. Mr. and Mrs. V. do not speak English very well, but are continually learning. E. and C. speak English fluently and would be able to bridge the communication gap as needed.

D.B. was placed in the V. home in May 2002. Four months later, an evaluation of D.B. and V.V.’s home was conducted by Dr. Ann Pittman Menou, Ph.D., a licensed psychologist, at the request of OCS. At that point, V.V. expressed significant behavioral problems with D.B. at school and at home. He was noted to have poor eating habits and episodes where he “bites, bangs his head, and destroys things in the home. The family noted that they were unable to attend church with D. due to his overly active behavior and tendency to tantrum when corrected.” Dr. Menou concluded:

In summary, the family appears to be adequately attached to D. despite the behavioral challenges he has presented since his placement with them. Given his history and their description of him being overly affectionate toward unfamiliar others, I suspect he may have experienced some delays in his ability to bond quickly and appropriately to his caregivers. However, such delays would be likely to occur in any placement given the numerous disruptions in his early life.
Of greatest concern for the family appears to be D.’s behavior, which has proven difficult for them to consistently manage. During the family session, D. did appear to exhibit symptoms of Attention-deficit Hyperactivity Disorder, including a poor attention span and a high level of distractibility. In addition, behavioral descriptions indicate that he tends to be impulsive and overly active both at home and linat school. Addressing these behaviors with appropriate intervention would appear to be critical to ensuring that this placement is successful for D.

A second follow-up report from Dr. Me-nou, dated March 17, 2003, after D.B. had been in V.V.’s home ten months, indicates improvement in D.B.’s behavior in school and at home. D.B. had been placed on medication for his impulsive, destructive behavior and inattentiveness. Mrs. V. noted his appetite had improved and he enjoys reading. The report states:

With the family, D. was observed to be active and inquisitive but he readily responded to redirections and limits posed to him by his cousin and great-aunt.... Based on this follow-up session, I would suggest continued medical follow-up for D. especially as he begins school again in the fall. While his current medication appears to be adequately managing his behavioral difficulties and has led to improvements in his functioning at home and at school, he does appear to continue to have some difficulties with sustained task attention which will need ongoing monitoring.

M.O. and L.O. are concerned V.V. and C.V. speak Spanish in the home and speak and read very little English. M.O. and L.O. contend this fact is detrimental to D.B. because of his speech impediment. The juvenile court ordered a follow-up report regarding this issue. Debbie Ott, from OCS, testified regarding her discussions with D.B.’s pre-K teacher and speech therapist. A written report from D.B.’s teacher, Desiree Washington, dated March 21, 2003, and the Head-Start speech evaluations appear in the record. Ms. Ott reported D.B. has a “mild articulation problem” not uncommon for a child his age. Otherwise, he was a model student and was progressing in his speech development. She reported D.B. has an ear for language and she felt being placed in a bilingual home was a “real advantage” for him.

D.B.’s pre-K teacher, Ms. Washington, reported marked improvement in D.B.’s behavior at school. When he started pre-K, he was “very disruptive and very self 1 ^ destructive. He ran around the room, went under tables, ran into the closets, and ran away from the teachers when in line. He would hit the children with his fist very hard. Dustin would slap the other children, and bite others to get their toy... .As time went by, we were consistent with him, by having him miss playtime and by holding his hand every time we left the room. We now see a behavior change.” The report continues:

Since he has been with Mrs. V.V., I have seen a big change in his behavior. He no longer bangs his head when he is upset. He no longer runs from the teachers, or shows violent tendencies toward the other children. He has adjusted very well to school with the help and support of Mrs. V.... I contribute [sic] this to Mrs. V.’s being consistent in keeping all parent teacher conferences, and following through with the discipline plan set between guardian and teacher. Mrs. V. also kept all appointments to the psychiatrist and makes sure he receives his medication daily.

When D.B. was placed in the V. home, he slept with his cousin C.A. in her room. The juvenile court ordered a study of this issue. Since that time, V.V. and C.V. have given D.B. a room of his own. V.V. and C.V. converted a laundry/storage room into a bedroom and now every family member, including D.B., has a separate bedroom. The juvenile court ordered an updated background check on C.V. The report indicated a citation in 1988 for driving without liability insurance on his vehicle and a moving traffic violation in 1989. No other criminal convictions were found. The juvenile court reviewed the testimony of all parties, including M.O. and L.O., and found the best interest of the child would be served by placing him in V.V.’s home. The home provides him with a clean, family-oriented, stable environment where his needs are met by his great-aunt and his adult cousins. D.B. has contact with Mrs. V.’s grandchildren, his cousins, on a daily basis and he is able to play outdoors with neighborhood children his own age. The pre-school he attends provides him with special services, including speech therapy, and Mrs. V. is attending 11?to his medical needs with the help of a psychiatrist.

M.O. and L.O. contend the trial court erred in failing to give proper weight to the position of the attorney appointed to represent the interest of the child and failed to give any consideration to the wishes of the biological parents or the foster parents. The record indicates neither the biological parents nor the foster parents testified at the trial. The attorney appointed to represent D.B. did not object to the placement of the child with V.V. and C.Y. The trial court considered the testimony of M.O. and L.O. and found the child’s best interest would be served by affirming the case plan proposed by OCS. We find no merit in this assignment of error.

DECREE

Based on our review of the testimony and documentary evidence, we find no manifest error in the decision of the juvenile court accepting the recommendation of OCS placing D.B. in the home of his great-aunt and her family with the goal of adoption. Accordingly, we affirm the decision of the juvenile court. All costs of this appeal are assessed to M.O. and L.O.

AFFIRMED.


source: Caselaw Access Project

author: JjPICKETT, Judge.

license: Public Domain

text:
    Danuta LACAZE v. ALLIANCE COMPRESSORS.
    No. 2003-1566.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2004.

      George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellee, Danuta Lacaze.
    Mark Alan Watson, Stafford, Stewart & Potter, Alexandria, LA, for Defendant/Appellant, Alliance Compressors.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, Judge.

FACTS

Danuta Lacaze was employed by Alliance Compressors, Inc. (Alliance) as a machinist in Natchitoches, Louisiana. As a machinist, she was required to lift objects weighing forty to sixty pounds. On November 11, 2000, she was involved in an on-the-job accident which resulted in an injury to her right shoulder and right upper arm. Alliance paid medical bills incurred by Ms. Lacaze as a result of this injury. The treating physician placed her on light duty, and she returned to work at Alliance at a light-duty position. On December 30, 2000, Lacaze was involved in another on-the-job accident whereby she fractured her right elbow in a fall. She was initially treated at the Natchitoches Parish Hospital Emergency Room. She was later treated by Dr. Terry Texada, an orthopedist, at St. Frances Cabrini Hospital in Alexandria, Louisiana. Dr. Texada did not release her to return to work. Lacaze received indemnity benefits for the period beginning December 31, 2000, at the rate of $213.33 per month. She took up a part-time job house sitting for an elderly lady. On May 8, 2001, Dr. Texada released Lacaze to return to light-duty work with a restriction that she not lift anything weighing more than five pounds with her right arm. In July, 2001, Dr. Texada approved a light-duty position with Alliance. On July 12, Alliance contacted claimant’s counsel via letter, wherein it offered Lacaze a position that was allegedly within the physical requirements mandated by Dr. Texada, as an Oldham Coupling Operator. On July 13, Lacaze received a message on her answering machine from her attorney that she was to return to work at Alliance the following morning. On July 14, she reported to work at 6:00 a.m. but was called into a meeting. Present at this meeting were Mike Penrod, supervisor; Rusty Boiler; the health and safety manager; Bobbie Nolley; Trida Boiler and Jeff Risinger, the human | ¡^resource manager. After the meeting, Risinger suspended her for two weeks. He also instructed the adjuster to terminate her benefits. Lacaze was absent the remainder of the month of July, but returned to work at Alliance on August 3rd, 4th and 5th. She also worked on August 10, 11, and 12. On August 17, 2001, Alliance terminated her employment for violation of their attendance policy because she had to stop and pick up medication on her way to work and was seven minutes late. Lacaze filed a Disputed Claim for Compensation with the Office of Workers’ Compensation wherein she alleged as follows:

1)The average weekly wage was improperly calculated due to the employer’s failure to include fringe benefits in its calculation;
2) The average weekly wage and, as a result, the temporary total disability benefits were incorrectly calculated;
3) The employer failed to produce medical records from the Natchitoches Parish Hospital timely;
4) Medical bills were not paid timely;
5) Claimant is entitled to weekly workers’ compensation indemnity benefits after her termination;
6) The employer paid claimant temporary total disability benefits late; and
7) Claimant is entitled to penalties and attorney fees.

The matter was heard on March 18, 2003, and the workers’ compensation judge (WCJ) issued an oral ruling on June 30, 2003. The WCJ ruled that it had no records to make a proper calculation of any fringe benefits from the 401K plan. The WCJ found that at the time of her work injury on December 30, 2000, Lacaze’s average weekly wage was $381.20 and that she was entitled to a compensation rate of $254.13 per week. The WCJ denied La-caze’s claim for penalties and attorney fees pursuant to La.R.S. 23:1125 for the employer’s alleged failure to provide her with medical | -¡records and denied penalties and attorney fees for the employer’s alleged late payment of medical bills. The WCJ ruled that Lacaze was entitled to supplemental earnings benefits (SEBs) from the date of her termination and continuing subject to a credit for wages that she earned in her various sitting jobs. The WCJ found that Alliance did not make a good faith effort to assist Lacaze in returning to work and that its failure to pay her any benefits was arbitrary and capricious after her discharge on August 17, 2001, but did not award a penalty. The WCJ found that Alliance paid temporary total disability benefits late and awarded a $900.00 penalty and $2,500.00 for attorney fees. The WCJ awarded $2,000.00 for penalties, and $4,000.00 in attorney fees for Alliance’s failure to pay the correct compensation rate and failure to use the proper four full weeks of earnings before December 30, 2000. The WCJ awarded $5,000.00 for attorney fees for the reinstatement of benefits and ruled that La-caze had a zero earning capacity. In accordance with this oral ruling, a judgment was rendered and signed on July 10, 2003.

It is from this ruling and judgment that the employer appeals.

ASSIGNMENTS OF ERROR

The employer seeks review of four assignments of error:

1. The Workers’ Compensation Judge erred in finding the employee to be entitled to Supplemental Earnings Benefits;
2. The Workers’ Compensation Judge erred in finding the employee entitled to a wage earning capacity of zero ($0.00);
3. The Workers’ Compensation Judge erred in finding the employee entitled to Supplemental Earnings Benefits from July 15, 2001; and
|44. The Workers’ Compensation Judge erred in awarding attorney fees relative to the discontinuance of indemnity benefits, and no attorney fees should be awarded for defending this appeal.

DISCUSSION

Standard of Review

An appellate court may not set aside the factual findings of a workers’ compensation judge in the absence of manifest error or unless it is clearly wrong. Wackenhut Corr. Corp. v. Bradley, 96-796 (La.App. 3 Cir. 12/26/96), 685 So.2d 661. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. “Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993).

Supplemental Earnings Benefits

Assignment of Error Number 1:

In it’s first assignment of error, Alliance argues that the WCJ erred in finding that the claimant was entitled to supplemental earnings benefits. Alliance contends that the claimant failed to sustain her burden of proof that she was unable to earn ninety percent of her pre-accident wages as required under La.R.S. 23:1221(3).

The purpose of SEBs is to compensate an injured employee for the wage-earning capacity lost as a result of a work-related accident. City of Jennings v. Dequeant, 96-943 (La.App. 3 Cir. 11/5/97), 704 So.2d 264. Entitlement to SEBs is |Bgoverned by La.R.S. 23:1221(3), which provides, in pertinent part, as follows:

(3)Supplemental earnings benefits.
(a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.

An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). “Initially, the injured employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his or her inability to earn that amount under the facts and circumstances of the individual case.” Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La.1/14/94), 630 So.2d 733, 739.

Once the employee’s burden is met, the burden shifts to the employer. In order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, the employer must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job. In addition, the employer must prove that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i); Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). Actual job placement is not required. Romero v. Grey Wolf Drilling Co., 594 So.2d 1008 6(La.App. 3 Cir.1992).

An employer may discharge its burden of proving job availability by establishing: 1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region, 2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job, and 3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. A “suitable job” is a job that the claimant is not only physically capable of performing, but one that also falls within the limits of the claimant’s age, experience, and education. Id.

Our first inquiry is whether the WCJ erred in finding that the claimant was entitled to SEBs following the accident on December 30, 2000.

In the instant case, the claimant was a full-time employee earning $8.00 per hour. The WCJ found that at the time of the accident in question, the claimant’s average weekly wage was $381.20. Following the accident, Lacaze did not return to work at Alliance, per her doctor’s instructions, but began house sitting for an elderly lady. She worked two days a week from 9 a.m. to 4 p.m. Although her treating physician released her to return to light-duty on May 8, 2001, the employer did not provide a position that met the restrictions placed upon her until July 12, 2001.

We, therefore, find that the claimant meet her burden of proof that she sustained a work-related injury that resulted in her inability to earn ninety percent or more of her average pre-injury wage as provided for in La.R.S. 23:1221(3)(a). We also find that the employer did not provide a suitable job that was within claimant’s 17physical capabilities until July 12, 2001.

iThis assignment of error is without merit.

Assignment of Error Number 8:

In its third assignment of error, Alliance asserts that the WCJ erred in finding that the employee was entitled to SEBs from July 15, 2001. Specifically, Alliance asserts that the claimant failed to prove an entitlement to benefits because she was discharged after returning to work for reasons wholly unrelated to her job-related injury and/or workers’ compensation claim.

This assignment of error presents two issues: 1) whether the WCJ erred in awarding SEBs starting on July 15, 2001, when the claimant had returned to her employment earning wages at the same rate of her pre-injury wage but was subsequently suspended and 2) whether the WCJ erred in finding that the claimant was entitled to SEBs following her termination on August 17, 2001.

The case of Palmer v. Schooner Petroleum Services, 02-397 (La.App. 3 Cir. 12/27/02), 834 So.2d 642, writ denied, 03-0367 (La.4/21/03), 841 So.2d 802, provides us guidance in the instant case. In Palmer, this court held that termination does not destroy ones entitlement to SEBs. In that case, the claimant suffered an on-the-job injury to his back. He remained with his employer in a light-duty position until he was terminated allegedly for substandard job performance. We noted:

[I]t is a claimant’s refusal to accept employment that fits within his abilities and/or disabilities which is made available to him that precludes an award of SEBs. In other words, “[t]he SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and jobs are available.” Blanchard v. Federal Express Corp., 95-0349, p. 4 (La.App. 1 Cir. 11/9/95); 665 So.2d 11,13.

Id. at 650.

We further noted that, “[t]o hold that an employee’s termination destroys an employee | sinjured on the job’s entitlement to SEB would provide incentive for employers to allow injured employees to return to work and thereafter terminate them to avoid paying SEB.” Id.

In the instant case, Lacaze returned to Alliance on July 14, 2001, and was suspended for two weeks. Her benefits were also terminated on that date. After her suspension, she returned to Alliance in August 2001, where she worked as an Old-ham Coupling Operator until her termination on August 17, 2001, for allegedly violating the company’s attendance policy. After being discharged from Alliance, La-caze began working at the Arbor of Natch-itoches in mid-August 2001. She was paid $5.25 per hour. She left that job in March 2002. From March, 2002 until January 2003, Lacaze worked as a house sitter. At this position, she worked five days a week, ten hours a day at a rate of $6.00 per hour. At the time of the hearing, she was house sitting for Betty Lacaze, working five days a week, ten hours a day at a rate of $6.00 per hour.

We find that Lacaze did not refuse to accept employment but rather was not permitted to work due to the suspension imposed upon her return to Alliance. Once her suspension ended, she returned to Alliance and performed her duties until she was terminated.

In accordance with the jurisprudence set forth in Palmer, we find that Lacaze was entitled to SEBs from July 15, 2001, during her suspension, until she returned to employment on August 3, 2001. We further find that Lacaze’s entitlement to SEBs did not cease upon her termination. Lacaze was able to find employment as a house sitter earning $300.00 per week, giving her an estimated annual income as a house sitter of $15,600.00. Her estimated annual income at Alliance was $19,822.24, ninety |npercent of which is $17,840.16. Therefore, the record supports the WCJ’s finding that Lacaze was entitled to SEBs from July 15, 2001, subject to a credit for the days in August that she worked at Alliance prior to her termination.

This assignment of error is without merit.

Assignment of Error Number 2:

Because we have decided that the claimant meet her burden of proof relative to her entitlement to benefits following termination, we must determine whether the WCJ erred in finding the employee entitled to a wage earning capacity of zero ($0.00).

The court’s actual ruling ordered the “reinstitution (sic) of her benefits with a zero earning capacity until the time periods that Ms. Lacaze had returned to work in her sitting jobs and SEB is to be computed upon those wages thereafter.”

When the employee cannot work or earns less than she is able to earn because of a job-related disability, the employer must establish her earning capacity. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993).

In the instant case, the claimant has established that she cannot earn wages equal to ninety percent or more of the wages that she earned prior to the accident and, as a result, is entitled to SEBs.

The record reflects that Alliance did not establish claimant’s earning capacity. The claimant, however, testified that following her termination from Alliance she was employed as a house sitter. In that position, the record clearly shows that she worked five days a week, ten hours a day, at a rate of $6.00 per hour. That establishes a wage earning capacity of $300.00 per week. The WCJ found that at the time of the accident in question, the claimant’s average weekly wage was $381.20 and that she returned |into Alliance in July at that same weekly wage. We, therefore, find that the difference between the claimant’s pre- and post-injury wages is $81.20, which entitles her to a weekly benefit of $54.13.

The WCJ found the claimant’s earning capacity to be zero only until she returned to her sitting jobs. Thereafter, it was to be calculated according to her wage. We find no error in the court’s ruling on this issue.

Assignment of Error Number 4:

In its fourth assignment of error, Alliance asserts that the WCJ erred in awarding attorney fees relative to the discontinuance of indemnity benefits and that no attorney fees should be awarded for defending this appeal.

Penalties and attorney fees do not automatically result from an employer’s erroneous failure to pay benefits. See Miles v. F.D. Shay Contractor, Inc., 626 So.2d 74 (La.App. 3 Cir.1993). The statutes authorize such penalties and attorney fees only where the employer is arbitrary and capricious in denying the claim. The provisions are penal in nature and must be strictly construed so that employers are not penalized for contesting a close factual question in a workers’ compensation proceeding and relying on valid defenses. Id. The determination of whether an employee may be awarded penalties and attorney fees is a question of fact which we will not disturb on appeal absent a finding of manifest error. Lyons v. Bechtel Corp., 00-0364 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, writ denied, 01-0282 (La.3/23/01), 787 So.2d 966.

We find no manifest error in the WCJ’s decision to award penalties and attorney fees.

In her answer to the instant appeal, the claimant requests attorney fees for work done on appeal. Alliance argues that no attorney fees should be awarded for | n defending this appeal.

An award for attorney fees for work done on appeal is warranted when the appeal has necessitated additional work on the attorney’s part. Hickman v. Allstate Timber Co., 94-1275 (La.App. 3 Cir. 4/5/95), 653 So.2d 154, writ denied, 95-1133 (La.6/23/95), 656 So.2d 1017; Aguillard v. Indus. Constr. Co., 542 So.2d 774 (La.App. 3 Cir.1989).

We have reviewed claimant’s brief done in connection with this appeal, and we award $3,000.00 in attorney fees.

CLAIMANT’S ASSIGNMENTS OF ERROR

The claimant answered the employer’s appeal asserting one assignment of error. The claimant argues that fringe benefits must be taken into account when calculating an employee’s average weekly wage and asks that the case be remanded to determine the value of the employer’s contribution to the 401K plan.

In its oral ruling, the WCJ noted as follows:

The record was held open for the submission of the value of fringe benefits which the Court received on April 17th of 2003. It stated that Ms. Lacaze was enrolled in a 401K plan from June the 1st of 2000 to August the 17th of 2000 and that for every dollar she invested in the 401K plan she would have received a twenty-five percent match by Alliance. That Alliance had no information as to how much she had invested but when she was terminated she had only — was only invested by twenty percent and that the 401K had no value to her. I have no records to make a proper calculation as to what value fringe benefits would be associated with the 401K plan.

Pursuant to a subpoena duces tecum issued by claimant’s counsel, claimant requested that Alliance produce as follows:

11) Any and all documentation pertaining to fringe benefits paid by you to or on behalf of claimant, to include, among all others, group insurance (medical, disability, life, etc.), vehicle, contributions to retirement/pension plan, travel/mileage reimbursement, any and all bonuses ever paid to plaintiff during the time of employment, etc., as hgwell as documentation of the actual cost to you on a monthly basis for each such fringe benefit.

This court has noted on several occasions that fringe benefits generally should be factored into an injured worker’s wages. See Batiste v. Capitol Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d 395; Cook v. Dewey Rusk Flooring, 93-1643 (La.App. 3 Cir. 8/10/94), 642 So.2d 234, unit denied, 94-2804 (La.1/13/95), 648 So.2d 1343.

As stated by Daigle, 545 So.2d at 1007-OS (La.1989):

In determining the amount of pre-injury wages an employee earned, “[a]ny money paid the employee which can be regarded as remuneration or reward for his services should be included in fixing his compensation, irrespective of whether or not the payment was in the form of wages.” Malone and Johnson, 14 Louisiana Civil Law Treatise, Workers’ Compensation § 324 at 93 (1980).”

See also Hodges v. Sentry Ins. Co., 492 So.2d 193 (La.App. 3 Cir.1986); Vaughan v. Ins. Co. of N. Am., 482 So.2d 1014 (La.App. 3 Cir.1986).

We note, however, that in Batiste, the court found that the claimant was entitled to include fringe benefits in the calculation of her wages because she provided proof to the court of the amount of fringe benefits that she earned. In the instant case, there was no evidence before the court upon which it could rely to make that determination. We, therefore, find no error in the court’s ruling on this issue.

DECREE

The judgment of the trial court is affirmed in all aspects. We award $3,000.00 in attorney fees for work done on appeal. The cost of this appeal is assessed to Alliance Compressors.

AFFIRMED AND RENDERED.


author: I,COOKS, Judge. J¿AMY, J.,

text:
    Jack COLEMAN v. ASCENSION ENTERPRISE, INC.
    No. 2003-1425.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2004.

      John Michael Morrow, Jr., Opelousas, LA, for Plaintiff/Appellee Jack Coleman.
    L. Lyle Parker, Jill M. Kelone Bolen, Parker & Brenner, Alexandria, LA, for Defendant/Appellant Ascension Enterprises, Inc.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and ELIZABETH A. PICKETT, Judges.
   I,COOKS, Judge.

On May 13, 2002, Jack Coleman was struck by a golf cart while in the course and scope of his employment with Ascension Enterprises, Inc. Mr. Coleman was first seen by Dr. Stephen Holmes at Ascension Medical Clinic and diagnosed with a left thigh flexor abductor strain and a left groin strain. He was advised he could return to work as his pain allowed.

On June 10, 2002, Coleman went to Opelousas General Hospital complaining of neck and low back pain. Coleman then began treatment with Dr. Rick Ortego, a chiropractor. The employer then referred Coleman to Dr. Gregory Gidman for an examination, which took place on September 11, 2002. Dr. Gidman found no objective findings of any injury, but did note subjective findings of tenderness and pain. He diagnosed a strain of the lumbar right lower extremities of the neck and upper extremities. He recommended that Coleman return to work performing sedentary/light office duty work with no repetitive head motion. Dr. Gid-man also scheduled a bone scan and MRIs of the lumbar and cervical spine, which he found were unremarkable. Dr. Gidman felt Coleman required a functional capacity evaluation (FCE).

Based on the medical report from Dr. Gidman, the employer sent a letter to Coleman, advising him they located available clerical work of a sedentary nature. Coleman did not act on the notice, stating he was concerned about going back to work because Dr. Gidman mentioned to him he might have suffered a neck fracture. Coleman then began treatment with Dr. Michael Heard, an orthopedist, in October of 2002.

Dr. Heard, who became Coleman’s treating physician, placed him on a no-work 12status based upon his complaints of pain and the examination findings. Much like Dr. Gidman, Dr. Heard diagnosed strained cervical and lumbar areas. Dr. Heard recommended physical therapy and requested performance of a lumbar myelo-gram, a post-myelogram CT and a bone scan. The employer corresponded with Dr. Gidman regarding the appropriateness of the proposed testing. Dr. Gidman felt a bone scan was unnecessary because a previous scan was normal. Dr. Gidman did not approve or disapprove of the myelo-grams, but stated he thought there was little possibility of positive findings.

Dr. Heard also recommended an EMG and nerve conduction velocity studies of the strained areas. The EMG and nerve conduction velocity studies were approved and performed. The findings were normal. Eventually, the myelograms were performed on June 3, 2003. Dr. Heard stated they indicated mild degenerative changes in both the cervical and lumbar spine, with no evidence of disc herniation, protrusion or impingement. Dr. Heard felt Coleman had post-traumatic subjective neck and low back pain with radiculitis following the May 13, 2002 work injury. He further concluded as follows:

With a diagnostic workup showing the current results, I do not see an operative problem in this particular individual. Efforts should be made to try to relieve his pain with pain management. I would think that he would probably be able to return to work in some capacity in the near future, although it might be limited. At the present time, he remains unable to do his job.

Coleman filed his claim for worker’s compensation benefits following the employer’s termination of benefits on September 23, 2002, based on Dr. Gidman’s recommendation that Coleman return to some form of sedentary employment. The parties stipulated that Coleman was injured in a work related accident on May 13, 2002, that his average weekly was $341.00, and that Coleman was timely paid |Rindemnity benefits through September 23, 2002. After a trial before the Office of Workers’ Compensation, the workers’ compensation judge concluded as follows:

It appears from the evidence presented from Dr. Gidman and Dr. Heard that both doctors have concluded that Mr. Coleman has a soft tissue injury. Indeed, the diagnostic tests confirmed there’s no nerve root compression or irritation, nor any disc herniations or protrusions. Dr. Gidman expressed in his deposition that if these tests turned out normal, that an FCE was needed— was needed for Mr. Coleman and vocational rehabilitation to return to work in a gradual fashion. Dr. Gidman stated, in his deposition, that he did not release Mr. Coleman to return to work in any capacity because he was not the treating physician, only that he encouraged Mr. Coleman to return to some type of work.
Apparently, the employer defends the case on the basis of the normal diagnostic testing, contending that this fails to show any objective evidence of injury and that a job was offered, based on a release to return to work to sedentary duty.
The case of [Gray v. Courtney Equipment Co., Inc., 96-908 (La.App. 3 Cir. 2/5/97), 689 So.2d 607] was a similar case in which the employer denied benefits because there was no objective evidence of an injury on the diagnostic tests, even though one — one physician continued to disable [Mr. Gray] based on his examinations and his findings on those examinations and feeling like [Mr. Gray] had nerve root irritation.
Dr. Gidman concurs that the diagnostic tests were done because — were— could be done in Mr. Coleman’s case because he had radiculitis and he wanted to see if he had any disc herniations, that he felt that, if the tests were done, they would be normal, which — which corresponds with Dr. Heard, in his deposition, said you want to do these tests to make sure you can find a source of the pain complaints for Mr. Coleman. And he also said that, in his opinion, he thought the tests were not a surgical problem.
Nevertheless, both doctors agreed that he had a lumbar strain. Both doctors agreed that he’s limited in what he can do. Well, Dr. Gidman says he’s limited in what he can do. And Dr. Heard says he’s unable to do anything. They both agree he needs an FCE. Dr. Heard says he needs work hardening and work conditioning.
Mr. Schutte testified, on behalf of the employer, that he offered Mr. Coleman a sedentary job, assisting the safety man arranging files, and that on December 31st of 2002 Ascension Enterprises went out of business and that there was no job thereafter available for Mr. Coleman.
It is this Court’s finding that based upon the medical evidence and the ease of Gray versus Courtney — I just set that case down — that Mr. Coleman has shown, by a preponderance of the evidence, that he has had an injury, which is a lumbar strain, that he’s still temporarily totally |4disabled based on the opinion of Dr. Heard, which corresponds with that of Dr. Gidman, that has this type of injury, and the fact that he has not had an FCE performed, nor has he had work hardening or work conditioning performed. The job offered by the employer is — is an improper offer of a job, as Dr. Gidman testified that he never released Mr. Coleman to any type of work, only that he encouraged Mm to do sedentary work.
The Court finds that the termination of benefits to Mr. Coleman was arbitrary and capricious. Now, there’s no penalties awarded for a termination of benefits which is arbitrary and capricious. However, I do award a Four Thousand Dollar ($4,000.00) attorney fee to Mr. Morrow for his collection of these benefits for Mr. Coleman. Mr. Coleman is to be placed back on benefits at temporary total disability benefits at his appropriate rate [retroactive to the date of termination], which is to continue until such time as he is unable to return to some type of work, whether it’s limited work or a full-duty release. And I think, gentlemen, that that would conclude this matter.

Ascension Enterprises appeals the judgment, contending the WCJ erred in finding Coleman was temporarily and totally disabled and that the job offer made by the employer was improper. For the following reasons, we affirm.

ANALYSIS

A workers’ compensation judge’s decision that a claimant has met his burden of proof is a factual determination. As such, this determination will not be overturned on review absent manifest error. An appellate court will set aside a factual finding by a hearing officer only if the record reveals there was no reasonable basis for the finding and that the finding was clearly wrong. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706; Stobarb v. State Through DOTD, 617 So.2d 880 (La.1993). In order to reverse factual findings of a workers’ compensation judge, an appellate court must determine that a reasonable factual basis does not exist in the record to support the finding and that the record establishes the finding is clearly wrong or manifestly erroneous. Clay v. City of Jeanerette, 99-1421 (La.App. 3 Cir. 5/31/00), 768 So.2d 609, writ denied, 00-2006 (La.10/27/00), 772 So.2d 124.

| KThe employer contends there was no objective evidence of an injury. However, Dr. Heard, the treating physician, stated in his opinion Coleman was unable to work and required work hardening and work conditioning. Dr. Heard also testified that Coleman “has an incompletely diagnosed post traumatic problem in his neck and low back area with severe pain and radiculitis. This needs to be ... we need to find out what is the most probable cause, so we can determine what need to be done ultimately in this particular man.”

The employer relies only on the report of Dr. Gidman, who examined Coleman on one occasion, at its request. It also contends that Dr. Gidman released claimant to return to light duty work. However, Dr. Gidman did not release Coleman to return to work, but merely encouraged him to return to light duty employment as soon as possible. Dr. Gidman specifically stated he did not release Coleman to return to work, because he felt only the treating physician can make that recommendation.

Both Dr. Heard and Dr. Gidman concluded Coleman had a lumbar and cervical strain. The doctors agreed Coleman required a FCE, and his work capacity was limited. Dr. Heard, the treating physician, felt Coleman was unable to do anything without work hardening and conditioning. Our review of the record convinces us sufficient objective medical evidence was presented by Coleman to meet the burden of proving his disability. See Gray v. Courtney Equipment Co., Inc., 96-908 (La.App. 3 Cir. 2/5/97), 689 So.2d 607. While the testimony of Dr. Gidman does, arguably, present conflicting medical evidence, the WCJ is in the best position to weigh the testimony and medical evidence. After reviewing the record, we cannot say the determination that Coleman was temporarily and totally disabled was manifestly erroneous.

| fiFurther, the WCJ did not err in finding the job notice provided by the employer was premature, considering that Coleman was not released by any physician to return to work. An “encouragement” by Dr. Gidman was not a medical release.

Coleman seeks payment of additional attorney fees to compensate his counsel for work done on the present appeal. However, he did not file an answer requesting such relief. Failure to file an answer pursuant to La.Code Civ.P. art. 2133 precludes this court from awarding additional attorney fees.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are assessed against appellant, Ascension Enterprises.

AFFIRMED.

AMY, J., dissents and assigns reasons.

J¿AMY, J.,

dissenting.

I respectfully disagree that an affirmation is warranted. Louisiana Revised Statutes 23:1201(1) defines an “accident” in the context of workers’ compensation as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury [.]” (Emphasis added.) It is well settled that in order for a claimant to recover temporary total disability benefits, such as those sought by Mr. Coleman herein, “the claimant is required to introduce objective medical evidence supporting the existence of [his disability].” (Emphasis added.) Clark v. Town of Basile, 01-1203, p. 8 (La.App. 3 Cir. 3/27/02), 812 So.2d 879, 884. See also, Ratliff v. Brice Bldg. Co., 03-624 (La.App. 5 Cir. 11/12/03), 861 So.2d 613; Daniel v. New Orleans Public Service Inc., 02-2427 (La.App. 4 Cir. 12/3/03), 861 So.2d 721; Boquet v. Tetra Technologies, Inc., 02-937 (La.App. 1 Cir. 2/14/03), 847 So.2d 1. In my opinion, the sole evidence presented as to Mr. Coleman’s injury was of a subjective character; as such, it does not meet the requisite standard for recovery of temporary total disability benefits. Accordingly, I would reverse the trial court’s determination that Mr. Coleman is temporarily totally disabled.

I respectfully dissent.


author: | ^EDWARD A. DUFRESNE JR., Chief Judge.

text:
    Michael PETRANICK and his Wife, Karen Loup Petranick v. WHITE CONSOLIDATED INDUSTRIES, Karl S. Steimle and Reliance National Indemnity Company.
    No. 03-CA-1424.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.
    Rehearing Denied May 14, 2004.

      Jerald N. Andry Jr., New Orleans, LA, for Plaintiffs/Appellees/3rd Appellant.
    Charles S. Green, Jr., New Orleans, LA, for Defendant/Appellant.
    George J. Nalley, Jr., Christopher J. Stahulak, Metairie, LA, for Intervenor/Ap-pellee/2nd Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE JR., JAMES L. CANNELLA, and THOMAS F. DALEY.
   | ^EDWARD A. DUFRESNE JR., Chief Judge.

This is an automobile accident case. Michael Petranick, plaintiff, was in the middle lane of a three lane limited access road, and traveling between 55 and 60 mph in a 50 mph zone. Karl Steimle, defendant, was entering the roadway from a merge lane on Petranick’s right, and was traveling about 45 mph. Steimle testified that he was driving a company panel truck on the way to a job. He said that he successfully merged into the right lane, and then attempted to merge into the center lane. He said that he had his turn indicators on and looked both in his mirror and over his shoulder, but never saw Petraniek’s ear before hitting it. Petranick also testified that he did not see Steimle coming into his lane until right before impact. Steimle was unhurt, but Petranick suffered lower back disc injuries and eventually underwent several surgeries.

Petranick sued Steimle, his employer White Consolidated Industries, and its insurer Reliance National Indemnity Co. Petranick’s employer, Tulane Medical Center, intervened to recover worker’s compensation benefits paid to Petranick.

A jury apportioned 65% of fault to Steimle and 35% of fault to Petranick, and awarded damages. The parties filed motions for JNOV and plaintiffs motion was granted in part. The Jury’s judgment and that of the trial judge are as follows:

Comparative fault

Pain and suffering

Mental anguish

Loss of enjoyment of life

Disfigurement/disability

Future lost wages

Past lost wages

Past medicals

Future medicals

Loss of consortium

Total Damages

Adjusted for % fault

JgJURY

35% to plaintiff

65% to defendant

$ 500,000

$ 120,000

$ 90,500

$ 10,000

$ 193,000

$ 107,200

$ 82,000

$ 55,700

-0-

$1,158,400

$ 752,960

JUDGE

10% to plaintiff

90% to defendant

No change

No change

No change

No change

No change

$ 186,114

$ 238,000

$ 147,522

$ 75,000

$1,560,136

$1,404,122

All parties now appeal.

The first issue concerns the apportionment of fault. The defendants urge that the 35% figure should be reinstated as to plaintiff, while the plaintiff seeks to have the 10% figure reduced to zero. A JNOV should not be granted when the evidence of record and reasonable inferences drawn from it are sufficient to convince a reasonable trier of fact that more probably than not a certain fact has been established. State DOTD v. Scramuzza, 95-786 (La.App 5th Cir. 4/30/96), 673 So.2d 1249. When a JNOV has been granted appellate courts review that decision based on the same standard. Id. Thus our inquiry is whether the trial judge properly determined that no reasonable fact finder could have reached the 35% figure. In this court’s opinion he acted properly.

The facts of the accident are as recited above. There were no accident reconstruction experts presented, and the police report adds nothing to the litigant’s | testimony at trial. There is no question that a motorist merging into traffic or changing lanes has the duty to ascertain that it is safe to do so. Steimle testified that he simply did not see Petraniek’s vehicle before merging into the middle lane. It is clear that Steimle’s failure to determine that he could safely change lanes was the major cause of the incident, and further that no reasonable fact finder could have found him only 65% at fault. On the other hand, Petranick admitted that he was driving 5 to 10 mph above the speed limit, and it was therefore reasonable to find him at least partially at fault, but certainly not 35%. Thus the trial judge properly set aside that finding.

The trial judge decided that a more reasonable apportionment was 90% to defendant and 10% to plaintiff. Our review of these findings is based on the manifest error standard, which also involves an analysis of whether a reasonable man could have made the findings of fact in question. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). As noted above, there was some negligence on the part of Petranick in speeding, but the major factor in the accident was Steimle’s failure to see Petranick. When the actions of the parties are considered in light of the factors set forth in Watson, supra, we find nothing manifestly wrong in the trial judge apportioning fault at 90% and 10%. We therefore affirm those findings.

The remaining issues deal with the quantum of damages, and to assess those items requires a more detailed statement of plaintiffs pre-accident psychological problems, the nature of the original injuries, the effects of his two subsequent accidents of March 1, 2000 and May 4, 2001, and his overall medical course over this whole period.

Petranick is a home health care nurse. The evidence showed that he had been having employment problems in the months preceding the August 6, 1998, accident at issue here, and had become depressed about his and his wife’s financial ^[¿situation over the past three years. In May of 1998 he saw Dr. Patrick O’Neill, a psychiatrist, who diagnosed him as suffering from the first episode of a major depressive disorder. This doctor testified that because of the August 6, 1998, accident and subsequent medical problems Pe-tranick had suffered additional episodes of depression and would probably need continuing treatment. He also said, however, that about 80% of people who suffer one episode of depressive disorder will suffer additional episodes. He prescribed Prozac for Petranick and referred him to Joan Rogers, a social worker, for psychotherapy-

Rogers testified that Petranick was doing well up to the time of the August accident, but due to that accident he became dramatically worse. She ascribed his continuing bouts of depression as being caused by this incident and his subsequent medical treatments, and said that he would need continuing psychological treatment. She also noted, however, that he became “pessimistic and negative” immediately after the second accident of March 1, 2000.

The medical procedures following the August 1998 accident were as follows. Immediately after the accident he was seen in a hospital emergency room for pains in his lower back. He was given anti inflammation medicine and discharged. At the time he was working for the Tulane Medical Center, and he was advised by this employer to see one of their neurologists, Dr. Morteza Shamsnia, for his continuing back pains as well as headaches and neck pains. This doctor followed him for several months during which the neck pain and headaches resolved, but the lower back pain continued. An MRI was then done which showed bulging in the discs at the L4-5 and L5-S1 levels. After a year of conservative treatment, plaintiff developed tingling and numbness in his leg, and an EMG showed a pinched nerve at the L5-S1 level. This doctor related the problem to the accident.

I (Also during this first year plaintiff had a recurrence of “tennis elbow” which did not respond to injections. Eventually surgery was done to correct the problem and this was a success. The orthopedist, Dr. Gregor Hoffman, related this problem to the accident of August 6,1998.

Plaintiff was next seen by Dr. Dinh, a Tulane neurosurgeon. This doctor recommended surgery to remove some of the disc material at L5-S1 which was impinging on the nerve root. This was done on June 2, 1999, almost one year after the accident. The procedure seemed to be a success initially, but after several months plaintiff had a recurrence of back pain.

Dr. Donald Dietze, a colleague of Dr. Dinh’s and also a neurosurgeon, determined that the there was another bulge in the L5-S1 disc and that another surgery would be needed. During this procedure of October 27, 1999, more of the disc was removed, and a fusion was also done. This involved placing bone fragments in the space occupied by the disc where it would fuse and prevent further movement. Again, the procedure was initially a sue-cess and plaintiff was sent to physical therapy.

The second accident, a rear end collision, occurred on March 1, 2000. Bryan Soulie, plaintiffs physical therapists, testified that he saw him on the morning of March 1 before the accident and that he was doing well and reporting significant improvement in his back and decreasing pain. Then on March 6, plaintiff reported a flare up of pain in his back radiating into his legs, and also pain in his neck. However, Soulie said that his notes showed that these symptoms were short term, and he did not believe that the March 1, 2000, accident had had any effect on plaintiffs recovery. Dr. Dietze said that plaintiff mentioned the accident to him but he did not recall the details of plaintiffs description of the incident. His opinion was that he did not think that the March 1 accident had exacerbated plaintiffs problems, but he also could not say whether plaintiff would have needed 17further surgery if this second accident had not occurred. As noted earlier, Joan Rogers, the social worker who was giving him psychotherapy, reported that plaintiff was pessimistic and depressed after the March 1, 2000 accident. Plaintiff testified that he was not hurt in the March accident, but went to the emergency room as a precaution.

By June of 2000 plaintiff reported to Dr. Dietze increased back pain. The doctor thought there might be problems at the L4-5 level, and he was also interested in the progress of the prior fusion at L5-S1. On August 11, 2000, another surgery was performed. This time an incision was made in plaintiffs belly region and the internal organs were pushed to the side to expose the front side of the spinal column. Although the L5-S1 fusion had taken more bone was added to strengthen it. Plaintiff was then turned over and a fusion was done at the L4-5 level. Additionally, metal rods and screws were put in place to keep the fused areas from moving until both fusions had solidified further.

Dr. Dietze testified that the surgery took between six and eight hours to complete. He also noted that because of the front incision patients usually took four to six months to be able to do simple daily activities, and a year to return to normal health. In plaintiffs case the procedure was an apparent success and by January of 2001 he had reached maximum medical recovery, and was no longer in need of physical therapy.

Nonetheless, plaintiff began experiencing additional pain, and Dr. Dietze suspected that the rods and screws were causing this. Surgery was scheduled to do the removal, but just before this procedure plaintiff was in another accident on May 4, 2001. Plaintiff said he was not hurt in this incident, and the hardware removal was done a few days later as scheduled. This procedure was also a success. However, plaintiff developed a hernia in the area of the abdominal incision which required yet another procedure to repair. It further appears that this | ¡¡procedure did not succeed and that plaintiff will need further surgery with a fabric implant to rectify this problem.

There was a stipulation that the total medical bills at the time of trial were $238,000. However, defendants did not stipulate that they were liable for this total. It also appears that the bills up to the time of the second accident of March 1, 2000, were about $82,000, the amount awarded by the jury. In increasing the jury award to $238,000 the trial judge noted that this higher amount had been stipulated to. This was error for two reasons.

First, the trial judge misunderstood the nature of the stipulation which was only as to total expenses, but not liability for those expenses. Second, as noted in discussing the issue of comparative fault above, a JNOV is appropriate only where no reasonable person could have made a particular factual finding considering all the evidence. As the medical summary above shows, there were at least some indications that the accident of March 1, 2000, could have interrupted plaintiffs successful recovery from the first two back surgeries. Although there was considerable testimony and opinion that the second accident probably did not exacerbate the first, the jury was called upon to make the ultimate determination on this point. Judging from the amount it awarded for past medical expenses it is evident that they found the second accident as causative of the continuing back problems. Because this was a reasonable finding, the trial judge was in error in setting aside the $82,000 judgment for past medical bills, and we therefore reinstate that award.

Similarly the trial judge erred in increasing the future medicals from $55,700 to $147,522. The jury apparently found that some of plaintiffs future problems were related to the injuries sustained in the first accident, but some were also attributed to the second accident. This being a reasonable finding based on the evidence, we must also reinstate the award of $55,700.

| nLikewise, the jury’s award for past loss wages apparently was also based on a finding that without the second accident plaintiff would have been able to return to work. We therefore reinstate the jury award of $107,200 for this item.

The next issue is the judge’s award of $75,000 to plaintiffs wife for loss of consortium. Defendants urge that the award be eliminated as per the jury and plaintiffs argue for an increase. In this instance the judge was correct in determining the jury’s decision to award her nothing was not reasonable on the record. It was shown at trial that the Petranick’s have three children that had to be cared for and that the wife had to work outside the home to support the family during plaintiffs recovery. It was also undisputed that their marital relations were significantly interrupted and that she spent considerable time in caring for her husband during his convalescence. She also received some psychotherapy for depression during this period because of the strain of dealing with her husband’s situation. Having determined that the wife is entitled to some compensation, the next inquiry is whether the judge abused his much discretion in fixing that amount at $75,000.

In Youn v. Maritime Overseas Corp., 628 So.2d 1257 (La.1993), the court reiterated the long standing rule that general damages are not susceptible to exact calculation and that the trier of fact has much discretion in fixing awards. On review the appellate court must consider the effects that a particular injury has had on a particular plaintiff considering his or her individual situation. It is only when the appellate court can determine for articulable reasons that an award is either too high or two low that it may adjust such an award. Moreover, the inquiry is not whether the appellate court would have made a particular award had it been hearing the case first hand, but rather whether the trier of fact has abused its discretion. In the present case, we are unable to articulate reasons why the $75,000 |10is too high or two low considering the impact that Pe-tranick’s injuries had on his wife, and we therefore must affirm that award.

The next issue concerns the general damage award of $500,000, which defendants contend is too high. This award was made by the jury and was not changed in the JNOV. As explained above, the question in reviewing general damage awards is whether the trier of fact abused its much discretion in fixing the amount of such awards considering all of the factors distinct to the plaintiffs injuries and situation. Here, plaintiff underwent at least two back surgeries and an elbow surgery because of the accident. There was also evidence that he suffered a recurrence of a major depressive disorder, for which he may need treatment for the foreseeable future. His life with his wife and children was completely disrupted and he was unable to support them for a protracted period, which deepened his depression.

In considering the above factors we are unable to articulate reasons why the award is excessive. While it is probably higher than this court might have awarded had he we been sitting as triers of fact, that is of no moment here. The issue is not what we would have awarded, but rather whether the jury abused its much discretion in its award. We find that it did not and so affirm that award.

The final issue is the jury’s $193,000 award for future lost wages. Again, the trial judge did not amend this award. The evidence relating to plaintiffs future employability was presented by several of his doctors. Dr. Dietze said that plaintiff had reached maximum recovery, but he still would experience some pain probably for the rest of his life. He said that he could not lift more than 30 pounds and should avoid strenuous exercise, but otherwise he could probably do some medical case management type jobs. The doctor was concerned, however, that if he were on narcotic medications for pain and depression then he might not be fit for such work.

InDr. Kurt Gold, a physician in the field of physical medicine and rehabilitation, who is presently treating plaintiff at his new home in Nebraska, had a more optimistic view of plaintiffs condition. He thought he could lift up to 50 pounds, although he could not do bending and lifting. He was not concerned about pain medications and did not share Dr. Dietze apprehensions on that point. His opinion was that plaintiff could work in some capacity in the nursing field, although not in a treatment capacity.

Margo Hoffman, defendants’ vocational rehabilitation consultant, testified that with plaintiffs restrictions as set forth by Dr. Gold he could find employment in the nursing field at salaries ranging from $28,000 to $50,000 per year. Plaintiffs expert economist, Bernard Pettingill, produced a number of projections based on a future work life expectancy of 25.5 years. His estimate of lost wages if plaintiff earned $49,000 per year would be about $21,000 over his working lifetime. Of course if plaintiff could not work at all his loss would have been over $1,000,000. The jury apparently found that plaintiff could not earn $49,000, but that he could indeed work for a reasonable wage. Although the figure of $193,000 does not appear in any of Mr. Pettingill’s scenarios, it is a number that the jury could reasonably have reached based on the evidence and testimony. We therefore affirm this award as well.

For the foregoing reasons, the JNOV entered by the trial judge is affirmed in so far as he adjusted plaintiffs fault to 10% and defendant’s fault to 90%, as well as his award of $75,000 to plaintiffs wife for loss of consortium. The jury verdict is reinstated as to past medicals, future medicals and past lost wages. In all other respects the jury verdict is affirmed.

AMENDED AND AFFIRMED AS AMENDED.


author: h SUSAN M. CHEHARDY, Judge.

text:
    John LOFORTE and Arnold York v. WAYNE ESTAY SHRIMP CO., INC. and Audubon Insurance Company.
    No. 03-CA-1367.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.
    Rehearing Denied May 14, 2004.
    James E. Shields, Sr., Gretna, LA, for Appellants, John Loforte and Arnold York.
    David M. Cambre, Metairie, LA, for Ap-pellee, Wayne Estay Shrimp Co. and Audubon Insurance Group.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   h SUSAN M. CHEHARDY, Judge.

John Loforte and Arnold York appeal the trial court’s grant of summary judgment in favor of Wayne Estay Shrimp Company and Audubon Insurance Group. For the following reasons, we reverse and remand.

According to the record, Loforte and York were fishing during the Caminada Red Fish Rodeo from a dock owned by Wayne Estay Shrimp Company (“Estay Shrimp”) in late 2001 or early 2002. According to the petition, Loforte was walking along Estay Shrimp’s dock in Grand Isle when several of the deck boards gave way, causing Loforte to fall through the dock into the water. Loforte alleges that he received severe injuries as a result of his fall. Further, York alleges that he was also injured that day when an adjacent area of deck boards broke away while he was attempting to rescue Loforte.

Loforte and York filed a petition for damages on January 28, 2002, naming Es-tay Shrimp and its insurer, Audubon Insurance Group, as defendants. Estay Shrimp and Audubon Indemnity Company (“Audubon”) timely answered the petition. In their answer, Estay Shrimp and Audubon denied the allegations of Loforte and York’s petition and asserted affirmative defenses, including immunity pursuant to the Recreational Use Statutes, La. R.S. 9:2791 and La. R.S. 9:2795.

h.On February 26, 2003, Estay Shrimp and Audubon filed a motion for summary judgment, asserting immunity pursuant to the Recreational Use Statutes. Loforte and York opposed the motion, averring that the statute does not apply. On April 11, 2003, defendants’ motion for summary judgment was heard. The trial judge then took the matter under advisement but rendered judgment, granting defendants’ motion for summary judgment, later that day. Notice of judgment was issued on September 22, 2003. Loforte and York filed a timely appeal.

On appeal, Loforte and York assert that the trial court erred in granting Estay’s motion for summary judgment on the grounds that the Recreational Use Statutes grant Estay immunity in this case. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Summary judgments are reviewed de novo on appeal. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Id. Facts are material when their existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Id. at 751.

La. R.S. 9:2791(A) provides:
An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating or to give warning of any hazardous conditions, use of, structure or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or | ^assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
La. R.S. 9:2795(B) provides:
(1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(a) Extend any assurance that the premises are safe for any purposes.
(b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or manmade.
(2) The provisions of this Subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the owner has no control when the recreational activity commences, occurs, or terminates on the commercial recreational development or facility.

In Keelen v. State, Department of Culture, Recreation and Tourism, 463 So.2d 1287, 1290 (La.1985), and Ratcliff v. Town of Mandeville, 502 So.2d 566, 567 (La.1987), the Louisiana Supreme Court developed a three-part test to determine whether a landowner is immune from liability pursuant to La. R.S. 9:2791 and/or La. R.S. 9:2795. First, the land upon which the injury occurs must be undeveloped, nonresidential, and rural or semi-rural. Second, the injury itself must be the result of recreation that can be pursued in the “true outdoors.” Third, the injury-causing instrumentality must be of the type normally encountered in the “true outdoors” and not of the type usually found in someone’s back yard.

Here, Loforte and York contend that Estay Shrimp is not entitled to immunity because the dock upon which Loforte and York’s injuries occurred was and is the site of a retail and wholesale business for profit, which precludes the 1¿property’s owner from asserting immunity under the Recreational use statutes. Further, Lo-forte and York contend that the property is not an undeveloped, nonresidential rural or semi-rural land area. Because we conclude that there are unresolved material issues of fact, we reverse the grant of summary judgment in favor of Estay Shrimp and Audubon. Specifically, there are genuine disputes as to whether the area is undeveloped and rural or semi-rural.

In support of their motion for summary judgment, Estay Shrimp and Audubon offered the affidavit of Wayne Estay. According to Estay, he operates a commercial “shipping.outlet” on property in Grand Isle, Louisiana owned by Estay Shrimp Company. Estay admits that there are numerous piers on Estay Shrimp’s property. He also states that Estay Shrimp does not charge recreational fisherman for use of its piers. He finally states that Loforte and York were not charged a fee for fishing from Estay Shrimp’s piers.

However, in opposition to the motion, Loforte and York offered photographic exhibits to support their contention that the area is developed and not rural or semi-rural. The photographs indicate that the property including the pier in question supports a large, commercial seafood business that located within the city limits of Grand Isle, Louisiana near a large church. Thus, there is a question of whether the defendants have demonstrated that the property in question is undeveloped, nonresidential, and rural or semi-rural as required to qualify for immunity under the Recreational Use Statutes.

For the foregoing reasons, the grant of summary judgment in favor of Wayne Es-tay Shrimp Company and Audubon Indemnity Company is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to Estay Shrimp and Audubon Indemnity Company.

REVERSED AND REMANDED.


author: WALLER, Presiding Justice,

text:
    UNION NATIONAL LIFE INSURANCE COMPANY; United Insurance Company of America; Union National Fire Insurance Company; Roland Stewart; Eugene Thomas (“Pete”) Furline; and Charles Stewart v. Jacqueline CROSBY; Pearlie Hendricks; David Hendricks, Jr.; Calvin Lawrence; Johnnie M. Owens; Kandice Owens; Minnie Owens; Mary Turner; and Shannon S. Wallace.
    No. 2002-IA-01751-SCT.
    Supreme Court of Mississippi.
    Feb. 12, 2004.
    Rehearing Denied April 29, 2004.

      . Samuel Ernest Linton Anderson, Arthur F. Jernigan, Staci Bozant O’Neal, William C. Brabec, Charles E. Griffin, Jackson, John M. Deakle, Hattiesburg, R. Christopher Wood, attorneys for appellants.
    Subrina Latreace Cooper, Hattiesburg, Janet L. Sims, Guthrie T. Abbott, Oxford, John Michael Sims, Heidelberg, Crymes G. Pittman, Jackson, attorneys for appellees.
    Before PITTMAN, C.J., WALLER, P.J., and CARLSON, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Jacqueline Crosby and over 350 other plaintiffs (“Crosby”) filed suit against Union National Life Insurance Company, United Insurance Company of American, Union National Fire Insurance Company, and their agents Roland Stewart, Eugene Thomas Furline, and Charles Stewart (“Union National”), from whom they had purchased fire, life and/or accident health insurance policies. The suit was filed in the Chancery Court of Coving-ton County, and the chancellor denied Union National’s motion to transfer to circuit court. We granted Union National permission to bring this interlocutory appeal. See M.R.A.P. 5. We find that the suit sounds in tort and contract law instead of equity as Crosby contends, and that the chancellor erred when he denied the motion to transfer.

STANDARD OF REVIEW

¶ 2. The standard of review for a ruling on a motion to transfer from chancery court to circuit court, or from circuit court to chancery court, is de novo. Briggs & Stratton Corp. v. Smith, 854 So.2d 1045, 1048 (Miss.2003) (citing United States Fid. & Guar. Co. v. Estate of Francis, 825 So.2d 38, 43-44 (Miss.2002)). Jurisdiction is a question of law, and the Court review questions of law de novo. Briggs & Stratton Corp., 854 So.2d at 1048; Saliba v. Saliba, 753 So,2d 1095, 1098 (Miss.2000); Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204-05 (Miss.1998).

DISCUSSION

¶ 3. The complaint, which is entitled “Complaint for Injunction, Accounting and Related Relief,” states as follows:

29. This is an action seeking redress for a fraudulent scheme and course of conduct involving deceptive sales practices, unconscionable conduct, overreaching, fraud and deception by the Insurance Defendants relating to the training of their agents; the marketing, sales, and administration of its policies by the Insurance Defendants and by the employees- including the Agent Defendants, who wilfully, knowingly, and intentionally participated directly in the tortious acts complained of herein.

Crosby raises the following claims: fraud, fraudulent inducement, breach of duty of good faith and fair dealing, tortious breach of contract, breach of fiduciary duty, as-sumpsit, unjust enrichment, negligence, gross negligence, multiple violations of the Mississippi Consumer Protection Act, and conversion. Crosby requests relief in the following forms: constructive trust, accounting, injunctive relief, actual damages and punitive damages.

¶ 4. The Mississippi Constitution of 1890 limits the jurisdiction of the chancery court to certain specified areas. Specifically, Article 6, § 159 of the Mississippi Constitution provides that:

The chancery court shall have full jurisdiction in the following matters and cases, viz.:
(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.

Article 6, § 162 of the Mississippi Constitution further provides that “[a]ll causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court.”

A. Fraud and fraudulent inducement.

¶ 5. Crosby alleges that Union National “targeted low income, unsophisticated, and uneducated segments of the population and developed insurance products for sale to these consumers,” that “[t]he [pjolicies were intentionally designed by [Union National] to create the illusion that they would provide valuable yet affordable benefits,” when in fact “the premiums charged by [Union National] were exorbitant in relation to the minimal death benefits actually afforded to [Crosby] and the risks caused to [Union National].” Crosby also alleges that the unit premium charges were “expensive,” the death benefits were “minimal” and “non-increasing,” and the cash value did not “accrue significantly].” Finally, she contends that the insureds were “required to continue making premium payments after the premiums exceeded] the face value of the [p]olicies or face losing all of their paid premiums without receiving any meaningful corresponding cash value or death benefits.”

¶ 6. Crosby seeks actual damages in the amount of the excess premium payments plus accrued interest, funds lost because of wrongful lapse, the sale of worthless policies, and “outright misappropriation of funds,” and emotional distress. She also seeks punitive damages for Union National’s alleged “willful malicious, intentional misconduct.”

¶ 7. Crosby’s assertion of chancery court jurisdiction as to her claims of fraud and fraudulent inducement fails: “Although acts of fraud may give rise to actions in equity, it is apparent that [Crosby] seek[s] a legal, rather than an equitable remedy.... Specifically, [Crosby’s] complaint seeks ... actual damages and ... punitive damages, and this remedy is clearly legal rather than equitable in nature.” South ern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (Miss.1999).

¶ 8. Crosby also seeks an “accounting of all funds which were the subject of overcharging, miscollection, misappropriation, or unconscionably charged and collected” by Union National. This request for an accounting should be viewed as “a mere disguise for what really could be accomplished through discovery.” Briggs & Stratton Corp. v. Smith, 854 So.2d 1045, 1049 (Miss.2003). Indeed, all of this information may be obtained through discovery in circuit court. City of Ridgeland v. Fowler, 846 So.2d 210, 214 (Miss.2003).

B. Breach of duty of good faith and fair dealing.

¶ 9. The duty of good faith and fair dealing arises from the existence of a contract between parties. American Bankers’ Ins. Co. of Fla. v. Wells, 819 So.2d 1196, 1207 (Miss.2001); see also Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992). There is no question that any issue relating to good faith and fair dealing should be heard in circuit court.

C. Tortious breach of contract.

¶ 10. Breach of contract claims are best heard in circuit court. Southern Leisure, 742 So.2d at 1089. “[I]n cases in which some doubt exists as to whether a complaint is legal or equitable in nature, the better practice is to try the case in circuit court.” Id.

D. Breach of fiduciary duty.

¶ 11. A claim of breach of fiduciary duty is “appropriately recognized as an action in tort, not contract.” Tyson v. Moore, 613 So.2d 817, 823 (Miss.1992). Regardless of whether it is a cause of action based in tort or in contract, it is impliedly not a matter to be decided by a court of equity.

E. Assumpsit.

¶ 12. “[W]here a party has paid money to another as the consideration for a contract and the contract so made is void and unenforceable, so that the consideration wholly fails, the payor may recover the money back in an action of assumpsit for money had and received.” Fuqua v. Joudon, 172 Miss. 11, 158 So. 795 (1935) (citing Milam v. Paxton, 160 Miss. 562, 570, 134 So. 171 (1931).) The action of assumpsit is based in equity. Fuqua, 158 So. at 795.

¶ 13. However, an action of assumpsit lies only after consideration fails and the contract is void and unenforceable. Id. Because the contract herein has not been voided, Crosby’s claim for assumpsit is not ripe.

F.Unjust enrichment and constructive trust.

¶ 14. Unjust enrichment is an equitable claim:

Money paid to another by mistake of fact, although such mistake may have been caused by payor’s negligence, may be recovered from the person to whom it was paid, in an action for money had and received. The ground on which recovery is allowed is that one receiving money paid to him by mistake should not be allowed to enrich himself at the expense of the party who paid the money to him by retaining it, but in equity and good conscience should refund it. In order that this rule may apply, the party to whom the payment mistake was made must be left in the same situation after he refunds it as he would have been left had the payment to him not been made.

Mason v. Southern Mortg. Co., 828 So.2d 735, 739 (Miss.2002); see also Milliken & Michaels, Inc. v. Fred Netterville Lumber Co., 676 So.2d 266, 269 (Miss.1996); Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445 (1925).

¶ 15. “A constructive trust is a fiction of equity created for the purpose of preventing unjust enrichment by one who holds legal title to property which, under principles of justice and fairness, rightfully belongs to another.” McNeil v. Hester, 753 So.2d 1057, 1064 (Miss.2000). See also Allgood v. Allgood, 473 So.2d 416 (Miss.1985); Russell v. Douglas, 243 Miss. 497, 138 So.2d 730 (1962). A constructive trust is:

one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

McNeil, 753 So.2d at 1064; see also Saulsberry v. Saulsberry, 223 Miss. 684, 690, 78 So.2d 758, 760 (1955); Alvarez v. Coleman, 642 So.2d 361, 367 (Miss.1994); Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1034 (Miss.1990); Sojourner v. Sojourner, 247 Miss. 342, 153 So.2d 803, 807 (1963).

¶ 16. Even though unjust enrichment and constructive trust are claims based in equity, to recover under either of these theories, Crosby must first show that the contract is void and/or that Union National breached the contract. Therefore, these claims are properly heard in circuit court.

G.Negligence and gross negligence.

¶ 17. “An essential part of the claim in ... tort case is to demonstrate, not only the extent of the injury, but that the negligence of the defendant was the proximate cause of the injury.” Busick v. St. John, 856 So.2d 304, 307 (Miss.2003). It is clear that negligence claims are, in esse, tort claims and tort claims are heard in circuit court.

H. Violations of the Mississippi Consumer Protection Act.

¶ 18. Suit may be brought in the circuit court for violations of the Mississippi Consumer Protection Act. See, e.g., Parkerson v. Smith, 817 So.2d 529 (Miss.2002).

I. Conversion.

¶ 19. Conversion, which requires an intent to exercise dominion or control over goods which is inconsistent with the true owner’s rights, is an intentional tort. West v. Combs, 642 So.2d 917, 921 (Miss.1994); Walker v. Brown, 501 So.2d 358, 361 (Miss.1987). Tort claims are heard in circuit court.

J. Injunctive relief.

¶ 20. While it is true that Rule 65(e) of the Mississippi Rules of Civil Procedure provides that the previously bestowed injunctive powers of the circuit and chancery courts are unchanged by Rule 65, “[i]t is a historical fact that the basis for equity jurisdiction of a suit for an injunction is the inadequacy of -a remedy in circuit court.” City of Mound Bayou v. Johnson, 562 So.2d 1212, 1227 (Miss.1990) (Hawkins, P.J., dissenting) (citing Griffith, Chancery Practice, § 434); Bus Lines, Inc. v. Ass’n. St. E.R., 205 Miss. 354, 374, 38 So.2d 765, 768 (1949). Crosby has not shown that a circuit court cannot grant the injunctive relief she seeks.

K. Right of trial by jury.

¶21. The Mississippi Constitution, Article 3, § 31 provides in part that the “right of trial by jury shall remain inviolate,” and it is apparent that Union National’s right to a jury trial would be infringed upon if this case were heard in chancery court. Southern Leisure, 742 So.2d at 1090. In “[e]hancery court, with some few statutory exceptions, the right to jury is purely within the discretion of the chancellor, and if one is empaneled, its findings are totally advisory.” Louisville & Nashville R.R. v. Hasty, 360 So.2d 925, 927 (Miss.1978) (quoting McLean v. Green, 352 So.2d 1312, 1314 (Miss.1977)).

¶ 22. The public policy in favor of a plaintiff being able to choose his or her forum does not outweigh Union National’s constitutional right to a jury trial.

¶ 23. A realistic and pragmatic review of the complaint leads us to the conclusion that this is a lawsuit that should be in circuit court, not chancery court.

¶ 24. “[I]t is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.” Southern Leisure, 742 So.2d at 1090 (quoting McDonald’s Corp. v. Robinson Indus., Inc., 592 So.2d 927, 934 (Miss.1991)).

¶25. The record clearly shows that each and every one of Crosby’s claims, even the equitable claims of unjust enrichment and constructive trust, arise from the sale and alleged breach of an insurance contract. Crosby contends that the complaint does not arise from the sale and alleged breach of an insurance contract; rather, she claims that the complaint arises from the sales, administration and service of the insurance contract. This argument ignores the fact that, unless there was a contractual relationship between Union National and Crosby, she would have no claims arising from the sales, administration and service of the insurance policy. Rights and duties arising from an insurance policy are construed according to the laws of contract. Miss. Farm, Bureau Cas. Ins. Co. v. Britt, 826 So.2d 1261, 1265-66 (Miss.2002). The alleged mismanagement and misappropriation of premium money concerns Crosby’s contractual duty to pay for the insurance policy and Union National to provide her coverage.

CONCLUSION

¶26. Since Crosby’s complaint sounds in tort and contract, we find that the chancellor erred in denying Union National’s motion to transfer to circuit court. Therefore, we reverse the chancery court’s order and remand to the Chancery Court of Cov-ington County with instructions to transfer this case to the Circuit Court of Covington County.

¶ 27. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., COBB, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J„ NOT PARTICIPATING.

      . A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by anj' form of unconscionable conduct, artifice concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. In re Estate of Davidson v. Davidson, 667 So.2d 616, 620 (Miss.1995) (quoting Saulsberry v.

        Saulsberry, 223 Miss. 684, 690, 78 So.2d 758, 760 (1955)).

      . An accounting is by definition a detailed statement of the debits and credits between parties arising out of a contract or a fiduciary relation. It is a statement in writing of debts and credits or of receipts and payments. Thus an accounting is an act or a system of making up or settling accounts, consisting of a statement of the account with debits and credits arising from the relationship of the parties. Black's Law Dictionary 34-36 (4th ed.1957).
      An accounting “implies that one is responsible to another for moneys or other things, either on the score of contract or of some fiduciary relation, of a public or private nature, created by law, or otherwise.” Miller v. Henry, 139 Miss. 651, 665, 103 So. 203, 204 (1925).