author: |, ARMSTRONG, Chief Judge.

text:
    Vernon COOPER v. PUBLIC BELT RAILROAD, Audubon Institute, Regional Transit Authority, Transit Management of Southeast Louisiana, Inc., Park One, Inc. and XYZ Insurance Company.
    No. 2003-CA-2116.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2004.

      Gregory C. Weiss, Michael J. Hall, Weiss & Eason, L.L.P., New Orleans, Counsel for Plaintiff/Appellee.
    Harry S. Hardin, III, Madeleine Fischer, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, Counsel for DefendanVAppellant.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge MICHAEL E. KIRBY.
   |, ARMSTRONG, Chief Judge.

The defendant-appellant, Public Belt Railroad (hereinafter “Public Belt”), appeals a judge trial personal injury judgment in favor of the plaintiff-appellee, Vernon Cooper. The judgment awarded Mr. Cooper $2,500,000.00 in general damages, $22,000.00 for lost earnings, $292,646.00 for loss of earning capacity, and! $94,000.00 for past medical expenses, subject to a finding of 35% comparative negligence on the part of the plaintiff, thereby reducing the award to a total of $1,843,400.00. The plaintiff answered the appeal asking that the general damage award be increased.

Plaintiff suffered injuries resulting in the amputation of his left leg and other physical damages when he was struck by a Public Belt Railroad train at approximately 12:00 a.m. on May 23, 1998, near the Moonwalk -in the French Quarter, not far from St. Peter Street. Therefore, while the parties may dispute particular details concerning the quantification of his damages, it is indisputable that the plaintiff was the victim of a tragic accident causing him terrible injuries.

According to his own testimony, the plaintiff had started off his day on the previous morning at approximately 10:30 a.m., sharing two six-packs of beer with three other friends and smoking marijuana cigarettes laced with cocaine. His | ^friends left at around 12:30 p.m. The plaintiff also consumed a half of a pint of mint gin.

At around 3 or 4 p.m., his girlfriend “started fussing” so the plaintiff left the house at around 6 or 7 p.m. and went to the Moonwalk in the French Quarter. On the way he purchased two 16-ounce Bud-weisers and a big bag of popcorn. On cross-examination he admitted to drinking eight 16-ounce Budweisers over the course of the day. He also admitted to previous guilty pleas to possession of marijuana and possession of crack cocaine.

Plaintiffs expert, Dr. William George, Ph.D., testified that two and a half hours after the accident the plaintiffs blood alcohol level was .256, dramatically over the legal limit. He characterized this blood alcohol level as “grossly intoxicated.” He further testified that the plaintiff tested positive for marijuana and cocaine metabolites in his system. When asked whether the use of these other two drugs reacts with alcohol in such a way as to produce a stronger effect, he responded, “Yes.”

Dr. George also testified that at a blood alcohol level of only .15 plaintiff would have experienced significant impairment of motor coordination. At a blood alcohol level of only .05 “there is a 25 percent increase in reaction time across the board.” Dr. George then testified that at a blood alcohol level of .11 reaction times are doubled. To put this in perspective Dr. George testified that:

For example, with a blood alcohol level of 100-milligram percent [1], you’re five or six times more likely to be involved in a fatal automobile accident as a driver. At a level of 150-milligram percent [.15], you’re 25 or 32 times more likely to be involved in a fatal automobile accident. At 200-milligram percent [.2], you’re 40 to 50 times more likely to be involved in a fatal automobile accident.

|aThe record compels us to agree with the Public Belt’s contention that if, as the trial court concluded, subsequent to approximately 10:30 a.m., “Mr. Cooper had no other drugs or alcohol for the remainder of the morning and afternoon,” then Mr. Cooper’s testimony that he only had two beers between 6:00 p.m. or 7:00 p.m. and midnight is unbelievable. Dr. George testified that:

[A] six-pack of Budweiser beer consumed over an hour or two would have impacted reaction time, I’ll tell you that a six-pack of Budweiser over an hour or two would produce a blood alcohol level [in a man of plaintiffs weight] to maybe around 90[.09], a hundred milligram percent [.1],

Regardless of whether we take Dr. George’s low end estimate of .09 or his high end estimate of .1, we are still at less than 40% of the blood alcohol level Mr. Cooper was shown to have had two and one-half hours after the accident, which is also over fifteen hours after the trial court found that the plaintiff had stopped drinking in the morning. It is, therefore, virtually impossible for the plaintiff to have attained the blood alcohol level he was shown to have had at 2:49 a.m. on the morning of the accident, approximately two and one-half hours after the accident, if all he had to drink over the fifteen hour period immediately prior to the accident were the two beers he testified to purchasing on his way to the Moonwalk. The paramedic who attended the plaintiff at the accident scene testified that, “the smell of alcohol was just overwhelming.” Therefore, we are compelled to find that the plaintiffs testimony on the question of when and how much he drank is so contradicted by objective evidence as to be unworthy of belief and that consequently the findings of the trial court must be manifestly erroneous in this regard.

|4Mr. Cooper admitted visiting the Moonwalk “hundreds” of times — at least two or three times a week during a four or five year period prior to the accident. He knew that trains regularly passed through the Moonwalk. He also admitted that from the park benches he could hear the loud rumbling of the train as it passed by regardless of whether a horn was blown.

The record reveals that on the day of the accident Mr. Cooper, as was his custom, failed to take the properly designated and signaled grade pedestrian crossing and instead took an unauthorized shortcut via a route through a parking lot, across street car and railroad tracks and past a chain and bollard divider going up the slope of the rise to the Moonwalk. There he listened to music on his radio headphones and to musicians playing saxophones and trumpets on nearby benches. When he decided to leave the Moonwalk, he returned by the same route by which he had come. As he neared the Public Belt right of way, his field of vision was unobstructed, but he saw nothing. While on previous occasions he had been able to hear approaching trains regardless of whether a horn was blown, on the night of the accident he saw nothing, he heard nothing, and did not feel the vibrations of the slowly approaching train.

Two mounted policemen, Officers Parker and Schneider, patrolling the Moonwalk parking lot that night, testified in deposition that they heard the train and saw it approaching. Officer Parker was “pretty sure” he recalled seeing the train light. Officer Parker testified that although the train was still over a block away from the St. Peter Street crossing when the officers first noticed it, they heard the horn “constantly blowing. You could hear it for a ways.” Officer Parker further testified that a few minutes after the train passed, the officers, who had not yet passed St. Peter Street, heard a lady yelling behind them. They turned back | ¡¡downriver to investigate. About 50 feet downriver from where the train had passed the officers, midway between St. Peter Street and St. Ann Street (the streets bounding Jackson Square on the east and west), they saw the plaintiff, Vernon Cooper, lying on his back — his leg had been severed. He still had his headphones on his head, and he appeared to be intoxicated.

At trial, all Cooper was able to say was that as he approached the track he caught a “glimpse” of the train out of the corner of his eye and tried to jump back — he remembered nothing further.

Harbor Police Officer, Michael J. Moli-nari, investigated the accident. He testified that if Ms. Pucciarelli had told him that she had actually seen the impact, he would have noted that fact in his report. He then testified that there was no such note in his report. He further testified that Ms. Pucciarelli did not indicate to him that she had seen Mr. Cooper being hit by the train. Officer Molinary was asked:

Q. Miss Pucciarelli indicated to you, did she not, that she saw Mr. Cooper running in an attempt to beat the train?
A. Yes sir.
Q. Miss Pucciarelli also indicated that Mr. Cooper was wearing headphones and appeared to have been drinking, correct?
MR. WEISS [Plaintiffs counsel]:
Objection. I’ll withdraw the objection. I’m sorry.
THE WITNESS:
Yes, sir. She stated that.

In due course, Mr. Cooper filed a timely suit against the Public Belt, the owner of the parking area, Park One, and the operator of the Moonwalk, the Audubon Institute. Park One and the Audubon Institute were dismissed when this Court reversed on writs the trial court’s refusal to grant them summary judgment.

The plaintiff contends that the Public Belt is not a “political subdivision” as that term is defined in La. R.S. 13:5102 B:

[r,As the term is used in this Part, “political subdivision” means any parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency. [Emphasis added.]

This first became an issue preliminarily when the Public Belt moved to have the plaintiffs jury demand stricken pursuant to La. R.S. 13:5105, which denies plaintiffs the right to a jury trial in suits against political subdivisions (as defined above) of the state of Louisiana. By ruling in favor of the Public Belt on this issue, the trial court found by necessary implication that the Public Belt was a political subdivision under La. R.S. 13:5102 B.

The next time the status of the Public Belt under La. R.S. 13:5102 B becomes an issue is in connection with Public Belt’s argument that the amount of the judgment against it exceeds the $500,000.00 limitation established in La. R.S. 13:5106 B(l). La. R.S. 13:5106 B(l) sets a $500,000.00 limit on personal injury awards, “exclusive of property damages, medical care and related benefits and loss of earnings, and loss of future earnings ...” La. R.S. 13:5106 B(l) applies to the state, state agencies and political subdivisions as defined by La. R.S. 13:5102 B.

The Public Belt contends that this definition is more than broad enough to include itself. The plaintiff counters that the Public Belt is not a state agency or political subdivision, but a commission of the City of New Orleans, citing Ford v. New Orleans Sewerage and Water Board, 594 So.2d 1088 (La.App. 4 Cir.1992), i.e., the plaintiff argues that La. R.S. 13:5102 B only applies to state agencies and not to municipal governmental entities.

In Ford the issue was whether an employee of the New Orleans Sewerage and Water Board should also be considered to be an employee of the City of New 170rleans for purposes of worker’s compensation benefits, such that an employee of the City could not sue for the negligence of an employee of the Sewerage and Water Board. This Court considered the question of whether the Sewerage and Water Board was a State agency or part of the City government. This Court held in Ford that the Sewerage and Water Board was an integral part of and included in the City of New Orleans, and as such an employee of the Sewerage and Water Board should be treated like an employee of the City for purposes of worker’s compensation benefits. While Ford dealt with the New Orleans Sewerage and Water Board, we agree with the plaintiff that for all purposes relevant to the instant case, the governmental status of the Sewerage and Water Board in Ford is analogous to the status of the Public Belt in the instant case. This Court noted in Ford that both the Sewerage and Water Board and the Public Belt were classified in the same section of the City Charter as “Unattached” “Boards and Commissions.”

However, we note that Ford was explicitly overruled some years later by Roberts v. Sewerage and Water Bd. of New Orleans, 92-2048 (La.3/21/94), 634 So.2d 341, 351, but not in such a way as to alter the conclusion of this Court. The Supreme Court in Roberts found that, like parent and subsidiary corporations, the employees of the City and the employees of the Sewerage and Water Board were employed by separate entities for purposes of workers’ compensation and overruled Ford on that basis. However, the Roberts court referred to the Sewerage and Water Board as a “local government unit” consistent with the board definition of “political subdivision” found in La. R.S. 13:5106 B(l). There is nothing in Roberts implying that this Court’s view of the Public Belt and the Sewerage and 18Water Board as similar “unattached” “boards and commissions” was in any way erroneous. We infer from the reference in Roberts to the fact that the Sewerage and Water Board was a local governmental unit that the Supreme Court would likewise consider the Public Belt to be a local government unit consistent with the broad definition of “political subdivision” found in La. R.S. 13:5106 B(l), either a “municipality” or “an agency or subdivision” thereof, or “other public or governmental body of any kind.”

That portion of the testimony of John Morrow quoted by the plaintiff in his brief only serves to reinforce this conclusion:

Public Belt is a city agency, just like the Sewerage and Water Board is. Like the Sewerage and Water Board has 16 commissioners. We’re exactly that. We are a city publicly owned railroad.

Accordingly, we find that the language of La. R.S. 13:5102 B, e.g., “municipality” or “an agency or subdivision” thereof, or “other public or governmental body of any kind,” is broad enough to include a city commission such as the Public Belt. This is consistent with the public policy considerations expressed in La. R.S. 13:5106 E:

E. The legislature finds and states:
(1) That judgments against public entities have exceeded ability to pay on current basis.
(2) That the public fisc is threatened by these judgments to the extent that the general health, safety, and welfare of the citizenry may be threatened.
(3) That the limitations set forth in this Section are needed to curb the trend of governmental liability abuses, to balance an individual’s 19claim against the needs of the public interests and the common good of the whole society, and to avoid overburdening Louisiana’s economy and its taxpaying citizens with even more new and/or increased taxes than are already needed for essential programs.
(4) That the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the constitution.

Thus, La. R.S. 13:5106 E explains that the rationale for applying the limitation to municipal entities such as the Public Belt is to benefit the public by preventing judgments from impairing the functions of public entities. It is clear that the legislature in the expansive language of La. R.S. 13:5102 B intended to extend the protections to municipalities and municipal entities as the rationale expressed in 13:5106 E is as applicable to municipalities and their creatures as it is to the state and its creatures. Further, the conclusion reached by this Court as to the municipal status of the Public Belt is consistent with the plaintiffs argument in brief that, “[u]n-der the terms of the Charter, the Board was blanketed into the New Orleans City government ...”

Accordingly, we find that the $500,000.00 limitation or “cap” found in La. R.S. 13:5106 B is applicable to plaintiffs claim.

Next we must determine whether the La. R.S. 13:5106 B $500,000.00 personal injury damage limitation applies to plaintiffs loss of future earnings capacity.

ImPublic Belt does not dispute the fact that under La. R.S. 13:5106 B(2), loss of future earnings is not limited by the $500,000.00 cap. Public Belt contends that it was error for the trial court to award anything for the loss of future earnings capacity. Public Belt argues that the specifically denominated exclusions set forth in La. R.S. 51:5106 B(l) are the only exclusions from the personal injury cap, and “loss of earning capacity” is not included among those specifically denominated exclusions. This argument is based on the assertion by Public Belt that “loss of future earnings”, one of the specifically listed exceptions to the cap, is different from “future loss of earning capacity” and, therefore, is not encompassed by the statutory exclusion of “loss of future earnings.” La. R.S. 13:5106 D(2) defines “loss of future earnings” as “any form of economic loss which the claimant will sustain after the trial as a result of the injury or death which forms the basis of the claim.” We must decide whether it was the intention of the legislature to include “future loss of earning capacity” within the category of “loss of future earnings” in spite of its silence on this issue, or whether the silence on the question of “future loss of earning capacity” expressed the intention of the legislature to exclude it from the list of recoverable items.

There are no cases bearing directly on this issue. The Public Belt argues that “loss of future earnings capacity” is not an “economic loss” as that term is used in La. R.S. 13:5106 D(2). The Public Belt presents the following persuasive argument in support of this contention:

[Ljoss of earning capacity is not an economic loss that the plaintiff will sustain because it is neither an expense that the plaintiff will have to incur in the future, nor is it an income item that the plaintiff would otherwise have received in the future. Plaintiff may argue that because hdoss of earning capacity is measured in dollars it is an economic loss. However, if this were the meaning of “economic loss” in La. R.S. 13:5106(D)(2) the statute would lose its meaning, since many other types of damages such as pain and suffering, permanent disability, and like items are also measured in dollars — items that are clearly subject to the $500,000 cap.... To allow such a loose definition would render the plain language of the cap meaningless.

In awarding “loss of future earning capacity”, the trial court adopted the jurisprudential definition, which distinguishes “loss of future earning capacity” from loss of future earnings:

Loss of Earning Capacity refers to a person’s potential and [sic] not necessarily determined by actual loss. Damages are estimated on th[e] injured person’s ability to earn money rather than what he actually earned before his injuries. Those damages are to be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never had [sic] seen fit to take advantage of that capacity. Folse v. Fakouri, 371 So.2d 1120 (La.1979); Crowther v. K-Mart Corp., 568 So.2d 669 (La.App. 4th Cir.1990). [Emphasis original.]

A careful examination of the cases relied upon by the trial court supports the Public Belt’s position. In Folse the Supreme Court found error in the appellate court’s reliance “altogether on the pecuniary loss, without considering the contention that there was also a loss of earning capacity...” Therefore, the Supreme Court in Folse draws a distinction between a “pecuniary loss” and “loss of earning capacity.” We find that the term “pecuniary loss” as used in Folse by the Supreme Court is synonymous with “economic loss” as employed in La. R.S. 13:5106 D(2). The Folse opinion goes on to explain the rationale behind the concept of loss of future earning capacity as opposed to loss of future earnings:

The theory is that the injury done him has deprived him of a capacity he would have been entitled to- enjoy even | ^though he never profited from it monetarily. [Emphasis added.]

Id., 371 So.2d at 1123. By noting that proof of loss of future earning capacity does not require proof of future monetary loss, the Folse opinion reinforces the conclusion of this Court that loss of future earning capacity is not an “economic loss” within the intendment of La. R.S. 13:5106 D(2).

The other case relied upon by the trial court in support of its definition of “loss of future earning capacity”, Crowther v. K-Mart Corp., supra, quotes the above quoted passage and more from Folse. Therefore, we find that the Crowther opinion is consistent with the conclusion reached by this Court.

Finally, in addition to the establishment of the $500,000.00 limitation subject to the exclusions set forth in La. R.S. 13:5106 B(l), the manner in which those exclusions are specifically referenced again in La. R.S. 13:5106 C(l) emphasizes the legislative consciousness of the specific nature of the enumerated exclusions and concomitantly serves to support the conclusion that the legislature by creating such a specific list did not intend to include items of damage customarily considered separately, such as loss of earning capacity. La. R.S. 13:5106 C(l) provides:

C. If the state or a state agency or political subdivision is held liable for damages for personal injury or wrongful death, the court shall determine:
(1) The amount of damages exclusive of:
(a) Medical care,
(b) Related benefits,
(c) Loss of earnings and/or support, and
(d) Loss of future earnings and/or support;

1 ^Moreover, because the items excluded from the limitation are “exceptions” they should be strictly construed consistent with the general rule of statutory construction that exceptions be strictly construed. Times Picayune Pub. Corp. v. City of New Orleans, (on rehearing), 99-1685, p. 1 (La.App. 4 Cir. 2/23/00), 760 So.2d 375, 386. This is especially true where the strict construction of the exceptions advances the public policy expressed in La. R.S. 13:5106 E of protecting the public health, safety and welfare from the excessive depredations of judgments against public entities. Cf. Government Computer Sales, Inc. v. State Through Div. of Admin., Office of State Purchasing, 95-2262, p. 4 (La.App. 1 Cir. 5/10/96), 673 So.2d 718, 721.

As an aside, we note that because the plaintiff takes the approach of arguing that the Public Belt is not entitled to the benefit of the La. R.S. 13:5106 B $500,000.00 limitation of liability for any purpose, he did not address the specific question of the applicability of the limitation to loss of earning capacity.

Accordingly, it was error for the trial court to award damages for loss of earning capacity to the plaintiff.

In its second assignment of error, Public Belt contends that Federal law is controlling concerning the question of whether the train was speeding.

The trial court found that the train was traveling between eight and ten miles per hour. Plaintiff concedes in brief that the train did not exceed ten miles per hour: “Plaintiff never alleged nor argued that the train was speeding prior to the locomotive striking Mr. Cooper.” Plaintiff does not contest the Public Belt’s contention that the track was a class two track with a speed limit under 49 C.F.R. § 213.9 of twenty-five miles per hour. The Public Belt does not contest the fact that [ 14it has an internal rule imposing a ten mile per hour speed limit in the area where the defendant was injured. While the plaintiff concedes that the train did not exceed specific regulatory and internal policy speed limits, plaintiff contends that the trial court was correct in concluding in the written reasons for judgment that the “train was operating too fast for the conditions presented at the time of the accident.” The trial judge based this conclusion on his findings that:

(1)The engineer and the crew on the train were aware that the area where the plaintiff was struck was a high traffic area for pedestrians, and that they routinely crossed over the tracks instead of crossing at the crosswalks.
(2) The train personnel were aware of the broken chain and bollard fencing and the worn path traveled by pedestrians daily.
(3) The Public Belt’s rules and regulations require that the train proceed with caution within yard limits. The impact in this case occurred within yard limits.

The Public Belt does not contest any of these findings, but does contest the trial court’s conclusion that the train was traveling too fast under the circumstances, arguing that “federal law preempts any state law negligence claims based upon the speed of the train.” We agree. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).

Speed limits imposed by federal regulation on freight and passenger trains operating along specific types of track preempt any general state negligence law claim that a train, although operating at a speed within federal limits, was | ^negligently proceeding too fast under circumstances. Id.; Cart v. Missouri Pacific R.R. Co., 99-1118 (La.App. 3 Cir. 12/8/99), 752 So.2d 241.

There is a large body of appellate and trial court decisions finding that state law excessive train speed claims are preempted when there is no evidence providing that the train’s speed was in excess of federal regulations. Id., 752 So.2d at 242. The Second Circuit’s opinion in Furlough v. Union Pacific R.R. Co., 33,658 (La.App. 2 Cir. 8/31/00), 766 So.2d 751 provides an excellent insight into the workings of the federal preemption of state attempts to regulate train speeds:

Federal regulation 49 C.F.R. § 213.9(a) sets the maximum allowable operating speeds for all freight and passenger trains for various classes of track on which they travel. The different classes of track are defined by, inter alia, then’ gage, alignment, curvature, surface uniformity and the number of crossties per length of track. See §§ 213.51-213.143; Easterwood, supra. The S. 24th Street crossing is a class three, for which the maximum allowable speed is 40 miles per hour. The train in this case was traveling well within the allowable speed limit set by the federal regulations. In Easterwood, supra, the Supreme Court stated, “the Secretary’s regulations focus in providing appropriate warnings given variations in train speeds” and that such regulations “must be read as not only establishing a. ceiling, but also precluding additional state regulation of the sort that respondent seeks to impose on petitioner.” More specifically, in Easterwood, the Supreme Court first examined the preemptive clause found in the Federal Railroad Safety Act (“FRSA”) which provides that federal regulations preempt those of a state unless the state necessarily adopts more stringent regulations to eliminate a local safety hazard. [Footnote 8 omitted] The Court then recognized that 49 C.F.R. § 213.9 provides the maximum speeds for trains and found that “§ 213.9(a) should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings.” Eastenuood, supra. Our reading of Eastenuood, and its progeny, reveals the Supreme Court’s unquestionable intention to hold that any claim in state tort law based on excessive train speed |1(4s displaced, or preempted, by the federal regulations. [Emphasis added.]

Id., pp. 10-11, 766 So.2d at 759-760.

The plaintiff cites no contrary authority. Nor does the plaintiff cite any authority by which we might find that the conditions at the accident site might qualify for what has been described as the “essentially local hazard” or “specific, individual hazard” exception to federal preemption. The Furlough case also provides ah excellent analysis of this issue:

Alternatively, Plaintiffs contend that, even if the federal regulations regarding train speed “cover” their state law claim, since the crossing in question constitutes an “essentially local hazard” [Footnote 10 omitted] or “specific, individual hazard,” the issue of the train crew’s duty to slow or stop to avoid such hazard is not preempted. Easterwood, supra. Specifically, Plaintiffs claim that the combination of hazards at the S. 24th Street crossing which allegedly existed on January 6, 1995 (i.e., obstructed sight line, rough crossing, parallel roadways, inadequate warning devices, inoperative ditch lights and inclement weather), rose to the level of a “specific, individual hazard.” While we acknowledge that the Supreme Court in Eastenuood chose not to address the preemptive effect on claims for “breach of related tort law duties, such as the duty to slow or stop a train to avoid a specific, individual hazard,” we disagree with Plaintiffs that, on January 6, 1995, the S. 24th Street crossing presented the type of hazard contemplated by courts applying that concept. In Western Company of North America, supra, .the third circuit examined the concept of “specific, individual hazard.” In finding none to exist in that case, the court explained:
A “specific, individual hazard” cannot be a statewide problem. A “specific, individual hazard” may entail any object that was not contemplated by the federal regulators who promulgated the Federal Railroad Safety Act and its regulations. Examples of such objects include illegally and improperly parked tank cars which obstruct the view of | i7a train engineer who fails to reduce the speed of the train despite the obstructions. Negligence claims which attempt to impose additional regulations on train speed, such as the train should have operated at a slower speed given the conditions posed by the track or the grade crossings, are preempted by the Federal Railroad Safety Act or its regulations.

Id., pp. 12-13, 766 So.2d at 760-761.

While the plaintiff makes no direct reference to either a “specific, individual hazard” or an “essentially local hazard” exception to Federal preemption, he does make the analogous assertion that the Public Belt failed to adhere to its own internal rules requiring that it operate its trains “at reduced speed, according to conditions, prepared to stop short of a train, engine, car switch not properly aligned, derailed or other obstruction or before reaching a stop signal.” [Emphasis added.]

However, we read these rules as requiring the Public Belt to travel at a reduced speed only when necessary to stop short of certain specific types of known obstructions and that these are the same types of specific obstructions referred to immediately above in the quotation from Furlough. The Public Belt rules do not refer to general conditions such as the fact that pedestrians may attempt to cross the track other than at a designated crossing, a condition that might occur any where along the track.

Therefore, based on the foregoing analysis showing that the question of the speed of the train as regards this accident is preempted by Federal regulation, we are compelled to find that the trial court was without authority to conclude that the Public Belt train “was operating to[o] fast for the conditions presented at the time |1Rof the accident,” as long as it was operating within the limits set by Federal regulation and its own internal rules as it uncon-testably was.

There are a number of places in the reasons for judgment in which the trial court refers to the train’s duty to proceed with caution, as well as references to what the trial court found to be the excessive speed of the train. As such references to the train’s speed impermissibly permeate the reasons for judgment upon which the trial judge concluded that the Public Belt was 65% at fault for causing the accident, we find this to constitute manifest error regarding the allocation of fault.

In its third assignment of error, Public Belt contends that the trial court’s findings regarding the train’s horn were clearly wrong as a matter of fact and law.

The trial court notes in its reasons for judgment that the plaintiff argued that:

[T]he defendant should have either had the locomotive traveling in a manner in which the horn was facing the direction of travel or should have had horns facing both directions ...

The Public Belt contends that any question of design and construction, including the placement of the horn at issue in the instant case, is preempted by federal regulation. Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926); Furlough v. Union Pacific R.R. Co., 33,658 (La.App. 2 Cir. 8/31/00), 766 So.2d 751, 762; and United Transp. Union v. Foster, 205 F.3d 851 (5 Cir. (La.) 2000). We agree. Moreover, we agree with the Public Belt’s contention that there is no evidence that the horn did not meet the decibel standard set out in 49 C.F.R. § 229.129.

However, the question of whether the horn met regulatory standards is not the real issue in this case. From the fact that the trial court does not include the placement of the horn among the duties that were material to the accident that | ^occurred, coupled with the immediately above quoted reference to the duty to blow the horn, which duty the trial court finds was breached by the Public Belt, we conclude that the placement of the horn in no way contributed to the trial judge’s allocation of fault to the Public Belt. Instead, it is apparent that at least a portion of the fault allocated to the Public Belt was based on the following finding by the trial court that there was a negligent failure by the Public Belt to sound the horn within the immediate proximity of the accident site:

Mr. Kerry [,the engineer,] testified that as he approached St. Peter, he sounded his horn and stopped sounding it after the locomotive occupied the pedestrian crossing. Plaintiff was struck by the train 300 feet from where Mr. Kerry stopped blowing his horn.

While the Public Belt expresses concern that the trial court was influenced by the deposition testimony of Ms. Ingrid Puc-ciarelli in his finding that the horn was not blown when and where it should have been blown, we find this not to be the case. The trial court specifically stated that it gave no weight to her testimony and a careful reading of the reasons for judgment leads to the inescapable conclusion that the trial court based its finding entirely on the fact that it is undisputed that the last time that the horn was blown was at St. Peter Street, approximately 300 yards in advance of the accident site.

The uncontradicted testimony of Mr. Kerry, the engineer, switchman Michael Gibson, and switch foreman Wade Adams establishes that Kerry blew the horn at vehicular crossings at Canal, Bienville, Conti, Toulouse and finally at St. Peter. The plaintiff does not contest this. The real issue is whether the train had any duty to blow its horn at any point between St. Peter Street and the accident site. The trial court found that the Public Belt had a duty:

li>nTo proceed with caution as it traversed through the Moonwalk area, an area with high pedestrian travel; and also to sound its horn as to warn pedestrians of its approach.

Similarly, the trial court found that:

[E]vidence and testimony was presented at trial that showed that Public Belt had rules and regulations that required all trains to proceed with caution through the area in question and that the train engineer was to sound the horn of the train in areas of pedestrian cross walks or when a pedestrian is seen near the train tracks. [Emphasis added.]

The Public Belt contends, and the plaintiff does not dispute, the fact that regulations do not require the horn to be blown at pedestrian crossings, unless there is a pedestrian in or near the crossing. Otherwise, regulations require only that the horn be sounded at public vehicular crossings. From this the Public Belt concludes that it was error for the trial court to implicitly impose a general duty to blow the horn as the train approached the accident site in the instant case.

This is not, however, how we read the reasons for judgment. Our reading of those reasons indicates that the trial court based its decision on a lack of vigilant lookout by the train crew, i.e., the failure of the crew to see what they could and should have seen, in this case, the plaintiff, Mr. Cooper. Following the reasoning of the trial court to its logical conclusion, had the members of the train crew observed Mr. Cooper as they should have, they should then have blown the horn in closer proximity to him than St. Peter Street, thereby, more probably than not, attracting his attention more effectively than a horn blown at St. Peter Street, thereby, more likely than not, causing Mr. Cooper to step back and avoid the accident.

121 As we find no flaw in this reasoning, we must next determine whether the record will allow the finding of such facts as are necessary to support such reasoning. Essentially, this boils down to an analysis of whether there was any breach of a duty of what the trial court referred to as vigilance on the part of the train crew which leads us to consider Public Belt’s fourth assignment of error.

In its fourth assignment of error, Public Belt argues that the speculation of plaintiffs expert was not an appropriate basis for a finding of no lookout. The trial court in its reasons for judgment noted that:

Testimony was also brought out at trial relating to a blonde lady who also was almost struck by the train. The testimony brought out at trial shows that the crew did see her, as she approached the tracks as the train approached and a friend pulled her away before she was struck. This incident took place near the time and place plaintiff was struck. The testimony at trial also establish that the crew continued to pay attention to this lady even after they passed her. [Emphasis added.]

Implicit in this finding is the further finding that the crew was distracted by this blonde lady causing them to fail to observe Mr. Cooper in front of the train. This is the only explicit finding made by the trial court upon which a finding that the crew failed in its duty of vigilance could be based.

Plaintiffs expert, Mr. Puryear, was asked:

MR. WEISS [COUNSEL FOR PLAINTIFF]:
.... Do you have an opinion as to whether or not there was any distraction in the area in which Mr. Cooper was injured on the night of this accident? MR. HARDIN [COUNSEL FOR PUBLIC BELT]:
Objection. Speculation.
THE COURT:
Overruled. You can answer your opinion. L,THE WITNESS [MR. PURYEAR]: Yes.
THE COURT:
What is your opinion?
THE WITNESS:
My opinion is when the crew approached this blonde lady with the beer and someone trying to get off the track, they were watching them and saw that they got the blonde out of the way, and everybody was looking back to see what was going to happen next. It happens all the time on the railroad.

Mr. Puryear was tendered by the plaintiff as an expert in train handling operations, railroad practices, railroad highway grade crossings, railroad injuries between trains and pedestrians. Public Belt objected. Along with pointing out the fact that Mr. Puryear had only a high school education, Public Belt’s counsel asked Mr. Puryear the following:

Q. Now, you’ve never investigated a pedestrian train injury you told us just a few minutes ago; is that correct?
A. I can’t recall that I did. I was just involved in some when I was in train service.

In spite of Public Belt’s objections, the trial court accepted Mr. Puryear as an expert based on his many years of experience working in the train industry. Although Mr. Puryear retired from the train industry in 1997 and was now working part time at a golf course, he contended that he kept himself current in railroad matters by attending union meetings.

It is not necessary that we share Public Belt’s skepticism concerning Mr. Puryear qualifications in general, in order to determine that he is not qualified to ^express an opinion on what the train crew may have been looking at the time of the accident. He admitted that he had no facts upon which to base his opinion.

Therefore, as the burden is on the plaintiff to establish a breach of a duty of vigilance on the part of the Public Belt crew, we must look elsewhere in the record to determine whether there is sufficient evidence to allowing a finding that the plaintiff proved by a preponderance of the evidence that the crew failed in its duty of vigilance. We find no such evidence. It is not sufficient to suggest that the only explanation for the failure of the crew to see Mr. Cooper was a lack of vigilance. That would merely be a guise for the application of the doctrine of res ipsa loquitur, and there is .no authority supporting the application of that doctrine under anything like these circumstances:

Res ipsa is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant’s negligence, more probably than not, caused the injury.

Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La.1992).

The Spott opinion then sets forth the criteria which must be met in order to warrant the application of the doctrine:

Res ipsa loquitur, as “a qualification of the general rule that negligence is not to be presumed,” must be sparingly applied. Day v. National U.S. Radiator Corp., 241 La. 288, 128 So.2d 660, 665 (1961). Generally, it obtains when three requirements are met: 1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; 2) the defendant had exclusive control over the thing causing the injury; and 3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on defendant’s part. Cf. Wilson v. Hibernia Nat. Bank, 517 So.2d 1206, 1208 (La.App. 4th Cir.1987), writ denied, 520 So.2d 425 ([La.]1988) (in which res ipsa loquitur was not applied), citing Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972), on rehearing.

Id., 601 So.2d at 1362.

l?4In the instant case the third criterion is not met because, in view of the extreme nature of the plaintiffs inebriation, it is just as likely, if not more likely, that the plaintiff was the sole cause of his own injuries rather than that he was the victim of any breach of duty on the part of the Public Belt.

Mr. Puryear testified that it would have been a violation of the train crew’s duty of vigilance had the train been traveling at a rate of ten miles per hour, but we have already concluded in section “HI” of this opinion that federal law preempts this issue and the plaintiff conceded in boldface type in his brief that: “The Speed of the train was not the Basis of PBR’s Liability.”

Mr. Puryear also testified that in his opinion the train crew “were not keeping a vigilant lookout in the direction of travel or they would have seen Mr. Cooper.” There is nothing in Mr. Puryear’s expertise that qualifies him to express an opinion regarding what the train crew was looking at the time of the accident.

It was Mr. Puryear’s opinion that the internal rule of the Public Belt that says that trains should proceed with caution within yard limits should be read as requiring the train to slow to a speed of one mile per hora-, in spite of the fact that the rule does not so state.

Mr. Puryear testified on cross-examination that at the Moonwalk crossing, when a train approached, bells and lights were activated, but he stated that he could hardly hear the bells. However, upon further cross-examination he admitted that he had submitted a claim against his railroad employer for hearing loss because of being on loud engines.

We find that it would be error to give any weight to Mr. Puryear’s testimony and any reliance thereon by the trial court was error.

1 j.fiIn its fifth assignment of error, Public Belt contends that it was error to admit the deposition of Ingrid Pueciarelli.

To put it succinctly, if it was error for the trial court to admit the deposition of Ingrid Pueciarelli, the error was harmless because the trial court in its reasons for judgment stated that it did not give the deposition “any amount of weight or credibility,” because it was inconsistent with an earlier affidavit given by her, to which the trial court also refused to accord any weight for the reciprocal reason that it conflicted with the deposition.

While the plaintiff contends that it was appropriate to admit the deposition, he contends that it was error to admit Ms. Pucciarelli’s affidavit. The plaintiff originally subpoenaed Ms. Pueciarelli, but the subpoena was directed to the wrong address on multiple occasions. Attributing the address error to a clerical mix-up, the plaintiff then argued that Ms. Pucciarelli’s deposition testimony should be admitted because she was unavailable to give live testimony. Counsel for Public Belt offered to produce video proof of Ms. Puc-ciarelli’s availability and asked for an instanter subpoena rather than permit the admission of her deposition without the ability to confront her live on the stand with her prior inconsistent affidavit. The trial court chose not to issue the instanter subpoena. Instead the trial court apparently elected to try to balance the equities by allowing the Public Belt to introduce Ms. Pucciarelli’s affidavit. The plaintiff says that this was error because he was not allowed to cross-examine the affidavit testimony of Ms. Pueciarelli. The plaintiff also raised a number of technical objections as to form.

The significance of this controversy is that the affidavit clearly states that the plaintiff “apparently attempted to climb through the slow moving train and appeared to have fallen,” facts that, if accepted, would be devastating to the | ¡^plaintiffs argument that the plaintiff was struck by the front of the train where he should have been seen in time for the train crew to take action to warn him away from the tracks. The plaintiff contends that the deposition should be read in such a way as to conclude that Ms. Pueciarelli saw the plaintiff struck by the front of the train. The deposition was taken over a year after the affidavit was given. Therefore, the affidavit, having been given at a time much closer to the time of the accident, arguably represents a fresher recollection of the accident.

Moreover, a careful reading of the deposition as a whole leads us to conclude, as did the trial court, that it is inconclusive. Ms. Pueciarelli concluded that the plaintiff must have been hit by the front of the train, but her testimony is not convincing on that point:

Q. What part of the train engine did you see him get hit by.?
A. Okay. I wasn’t definite what part hit him. I just know that I thought I saw him get struck by the train.
* * *
Q. Was there anything blocking your vision from where you were to where he might have been or was?
A. Yeah. There was like a couple of trees there whereT was standing.

Later in her deposition she testified further along the same lines:

Right about where I was standing, you know, I saw somebody crossing. I thought I saw him get hit, and then I decided — I thought, well, like I said, that he probably just jumped and ran across at the last second or something, and I forgot about it for a few minutes.

Ms. Pucciarelli also testified in her deposition that the plaintiff was coming from the Decatur Street side of the tracks, attempting to cross to the river side where she and her friends were. This conflicts with the plaintiffs own version of his actions leading up to the accident. He testified that he was coming from the 1 ^riverside of the tracks and was attempting to cross over the tracks to the Decatur Street side. Other parts of her testimony were unfavorable to the plaintiffs case:

I thought it was odd that he was crossing and the train was so close to him that he could get hit. I don’t know if he realized that the train was coming or not or if he just wasn’t paying any attention or what. I just thought it was strange that he would take that risk.

She testified that the plaintiffs behavior was so bizarre after the accident that her friend asked him if he was on “some kind of drug” and he responded that “he had done some cocaine.” He was so out of it that, in spite of the fact that his leg had been severed, he tried to get up and walk around, accusing Ms. Pucciarelli of lying when she told him that his leg had been severed.' While plaintiffs counsel now argues that her testimony should be read to indicate with certainty that she was only 15 or 20 feet from the point of impact, he questioned her persistently during the deposition until she finally admitted that she could not be sure how far away she was. In any event, the plaintiff had to be closer to the train than was Ms. Pucciarelli because he was actually struck by it. Her response to the following question is adverse to the plaintiffs argument:

Q. When you first heard the train and noticed it, saw it, had it crossed St. Ann Street already, the engine?
A. I noticed it before it crossed St. Ann because you could hear it. Freight trains are loud, so you could hear it coming. [Emphasis added.] ,
Q. So it was a block or two away from you when you first heard it and when you first saw it; is that correct?
R. Yes.

This necessarily implies that if the train was loud the plaintiff should have heard it and easily avoided the accident, unless he was so drugged and intoxicated as to be the sole cause of his collision with the train as is argued by the defense.

| srMs. Pucciarelli testified in her deposition that the light on the train was not on, but this statement is contradicted by the overwhelming preponderance of the evidence including the disinterested testimony of Officer John Parker, Jr., one of two mounted officers on duty in that area at the time of the accident. This further calls into question the reliability of Ms. Pucciar-elli’s deposition testimony.

Therefore, even if we were to ignore the inconsistencies between Ms. Pucciarelli’s affidavit and her deposition testimony, her deposition testimony is still so equivocal, and internally inconsistent and/or so contradicted by other more credible evidence in the record that we cannot say that it was error for the trial court to refuse to give it any weight or credibility. Moreover, the Public Belt does not contend that this Court should give any weight to Ms. Pueciarelli’s affidavit as long as none is given to her deposition. Therefore, the decision of the trial court to afford no weight to either the deposition or the affidavit was correct regardless of how that decision was arrived at procedurally.

The plaintiff filed an answer to the appeal contending that the award for general damages should be increased because of the nature of the injuries he sustained. He has problems with everyday activities such as bathing, going to the restroom, getting in and out of an automobile, visiting friends and playing sports. His chronic pain prevents him from sleeping for more than two hours at a time. He will have a lifetime of phantom pain.

The Public Belt does not respond to this argument, choosing instead to contend that the plaintiff is barred from asking for an increase in the damage award because of his failure to answer the appeal. However, the record indicates that the plaintiff filed a timely answer to the appeal on December 9, 2003, asking for an increase in the damage award.

129We find that regardless of the standard of review, the record clearly supports a finding of at least $500,000.00 in general damages (the Public Belt contests only the allocation of fault, not the amount of the general damage award), the maximum allowed under La. R.S. 13:5106 B(l), as set forth earlier in this opinion.

If the allocation of fault were based on the severity of the plaintiffs injuries and sufferings, the plaintiff would surely prevail as this Court was truly moved by the horrific nature of the plaintiffs injuries and his grim prospects for the future. However, the foregoing analysis compels us to find no fault on the part of Public Belt. Therefore, even the question of the $500,000.00 in damages remains one of academic interest only.

As the foregoing analysis is dispositive of all of the issues raised by the appeal and the answer to the appeal, it is unnecessary to consider other issues raised by the appellant.

For the foregoing reasons, the judgment of the trial court is reversed, and judgment is herein rendered in favor of the defendant, the Public Belt Railroad, and against the plaintiff, Vernon Cooper, dismissing plaintiffs case.

REVERSED AND RENDERED.

      . Id., 634 So.2d at 346.

      . Emphasis added.

      . 96-877 (La.App. 3 Cir. 5/7/97), 696 So.2d 1.


source: Caselaw Access Project

author: | .THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Ronald J. SARAGUSA v. AUTO CRAFT, INC.
    Nos. 04-CA-316, 04-CA-317.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.
    Order Granting Rehearing Nov. 22, 2004.

      Michael A. McNulty, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Wade A. Langlois, III, Thomas W. Darling, Gaudry, Ranson, Higgins & Gremil-lion, L.L.C., Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and clarence E. McMANUS.
   | .THOMAS F. DALEY, Judge.

In this workers’ compensation claim, the defendant, Auto Craft, Inc., has appealed the judgment rendered in favor of plaintiff, Ronald J. Saragusa. Plaintiff has answered the appeal. For the reasons that follow, we affirm the judgment as amended.

FACTS:

Mr. Saragusa worked for Auto Craft, Inc. (hereinafter Auto Craft), an automobile repair shop owned by Michael Walker, in April 1998 as a body repair technician. At the close of business each day, part of his job duties included moving cars out of an adjacent lot and into the Auto Craft shop for the night. On a Friday in the middle of July 1998, as he was walking in the lot to move a car, he twisted his ankle when he stepped in a hole. He testified that after he twisted his ankle he walked back into the shop and informed the shop foreman, Bobby |sRehage, that he twisted his ankle and was going home. He went home, put ice on his ankle, and stayed off of the ankle for the weekend. He returned to work on Monday morning. Mr. Saragusa testified that a couple of days later, he twisted this same ankle while at work when he walked over metal bars in the stall where he worked. He further testified that about two days later he stepped on an air hose at work, twisting the same ankle again. Mr. Saragusa testified that he told both Mr. Walker and Mr. Rehage about this incident. Mr. Saragusa explained that he did not seek medical treatment for these injuries, instead he just wore an ace bandage to support his ankle.

Mr. Saragusa testified that on July 28, 1998, he was walking down an incline exiting the shop while carrying a vehicle hood when his leg “went out”, causing him to fall to the ground. Mr. Saragusa explained that he was in excruciating pain. Mr. Walker looked at his ankle and left to buy ice. When Mr. Walker returned with the ice, he wrapped the ankle. Mr. Sara-gusa then left the shop and called his fiancée who made an appointment for him to see a doctor.

Mr. Saragusa was examined by Dr. William Pusateri that same day. He explained that he initially claimed this injury on his own medical insurance, but when his medical insurance company discovered the injury occurred at work, they refused to pay for further treatment. Mr. Saragusa explained that Mr. Walker paid for his medical expenses initially, then when Dr. Pusateri recommended surgery, Mr. Walker asked that Mr. Saragusa be examined by another physician. Mr. Walker chose Dr. Grimm to examine Mr. Saragusa. Dr. Grimm recommended an MRI of the ankle and Mr. Walker refused to pay for this procedure. At the time of trial, Mr. Sara-gusa had not had the MRI or surgery.

Mr. Saragusa testified that he continued working at Auto Craft until January 21, 2000. At the time of trial, he was working at another automobile repair shop earning a higher salary than he earned at Auto Craft.

[4Dr. Pusateri testified that Mr. Saragu-sa presented to his office on July 28, 1998 stating that he had twisted his ankle at work on two occasions prior the incident of that date. Dr. Pusateri diagnosed Mr. Saragusa as having a Grade III ankle sprain. He placed the ankle in an air cast and told him to elevate and apply ice to the ankle. Dr. Pusateri treated Mr. Saragusa for complaints related to the ankle for the next few months. Dr. Pusateri explained that the lateral aspect of Mr. Saragusa’s ankle was unstable and for this reason he recommended surgery to stabilize the ankle. He explained that he would only perform the surgery on the ankle if Mr. Sara-gusa was “symptomatic” meaning that the ankle gave out frequently.

Dr. Pusateri testified that Mr. Walker called him and stated that he did not believe that the ankle injury occurred the way Mr. Saragusa claimed. Dr. Pusateri testified that the sprain diagnosed on July 28, 1998 was superimposed on a previous injury. Dr. Pusateri testified that the previous injury was the two occasions that Mr. Saragusa reported having twisted his ankle in July 1998. Dr. Pusateri testified that Mr. Walker disagreed with his diagnosis.

Dr. Pusateri admitted that he had written a letter on June 8, 1999 stating that Mr. Saragusa had slammed on the brakes of his car when the car hydroplaned and hit a curb the weekend before he first came to Dr. Pusateri’s office. Dr. Pusateri testified that he had never seen the type of injury suffered by Mr. Saragusa from slamming on brakes.

Michael Walker testified that on the morning of July 28, 1998 he observed Mr. Saragusa sitting on the floor stating that his leg had gone out and that he had hurt his leg in the lot two to three weeks earlier. Mr. Walker testified that the ankle did not appear swollen and Mr. Saragusa did not appear to be in pain. Mr. Walker admitted that he went to the store to purchase ice to put on Mr. Saraguasa’s leg and that he wrapped the entire bag of ice around Mr. Saragusa’s leg. Mr. Walker | Bexplained that he called Mr. Saragusa’s house later in the day to check on him and was told that he was at Dr. Pusateri’s office. Mr. Walker testified that he called the doctor’s office and told them that he would pay for the visits, which he did. Mr. Walker explained that when Mr. Saragusa told him he needed surgery, he went to talk to Dr. Pusateri about the injury. Dr. Pusateri told him that this injury could not have happened from slamming on the brakes.

The deposition of Dr. Matthew Grimm was admitted into evidence. Dr. Grimm testified that Mr. Saragusa told him he stepped in a hole in a lot and injured his ankle. He then reinjured the ankle two times after that. He noted that Mr. Sara-gusa had a lot of stiffness and decreased motion in his ankle and recommended physical therapy. Dr. Grimm testified that the range of motion in Mr. Saragusa’s ankle increased after the physical therapy. He agreed with Dr. Pusateri that Mr. Sar-agusa had sustained an ankle sprain superimposed on an old injury. He did not feel that Mr. Saragusa needed surgery, but did feel that an MRI was necessary to address Mr. Saragusa’s continued complaints regarding the ankle. Dr. Grimm admitted that the injury could have been caused by slamming on brakes.

At the conclusion of trial, the trial court rendered judgment finding Mr. Saragusa was injured during the course and scope of his employment and that he was entitled to temporary total disability benefits. The Court further found that Mr. Saragusa was entitled to payment of all medical expenses, medication expenses, and transportation expenses related to this injury.

The court further found that the defendant was arbitrary and capricious and penalties of $2,000.00 were awarded for refusal to pay for the surgical procedure, MRI, and other medical expenses. Penalties of $2,000.00 were awarded for failure to pay indemnity benefits. Attorney’s fees of $6,000.00 were also awarded.

Both parties moved for a new trial. Mr. Saragusa argued he was entitled to a new trial because Mr. Walker and Auto Craft were his joint employers and urged |Bthe trial court to grant a new trial regarding issue of the liability of Mr. Walker. Auto Craft moved for a new trial claiming the trial court erred in awarding indemnity payments, penalties, and attorney’s fees for failure to pay indemnity benefits, and penalties and attorney’s fees for discontinuation of medical benefits. The trial court granted a new trial in favor of Auto Craft on the issue of indemnity owed, but denied the new trial on other issues The trial court denied Mr. Saragusa’s Motion for New Trial.

AUTO CRAFT’S ASSIGNMENTS OF ERROR:

In its first Assignment of Error, Auto Craft argues that the trial court was manifestly erroneous in finding Mr. Sara-gusa met his burden of proving he had an injury caused by a work related accident.

The claimant in a worker’s compensation suit has the burden of establishing by a preponderance of the evidence that he has received an injury by accident occurring in the course of his employment. Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207. The hearing officer’s determination as to whether the claimant has met this burden of proof is a factual finding that will not be disturbed in the absence of manifest error. Id. The hearing officer’s factual findings will only be set aside on appeal if there is no reasonable basis for this finding in the record and it is clearly wrong. Id.

In the case at bar, Mr. Saragusa testified that he twisted his ankle on three prior occasions during the course and scope of his employment with Auto Craft, including the time he stepped in a hole in the lot across the street from the shop. Mr. Saragusa further testified that the July 28 injury occurred when he was exiting |7the shop while carrying a vehicle hood. He testified that Mr. Walker left the shop to get ice to apply to his badly swollen ankle and that he sought medical treatment for the ankle injury that same day. While Mr. Walker and Mr. Rehage testified that they did not recall Mr. Sara-gusa reporting the lot incident, they both acknowledged that Mr. Saragusa made reference to it. No one at the shop reported witnessing the July 28.1998 fall that caused the final ankle injury, but they all testified that they saw Mr. Saragusa on the floor complaining that he hurt his leg. Mr. Walker denied that the ankle was swollen or that Mr. Saragusa was in pain, but admitted that he left the shop to purchase ice and that he applied the ice to Mr. Saragusa’s ankle. Mr. Walker further testified that he telephoned Mr. Saragusa later that day to check on the injury.

Mr. Walker argues that Mr. Sara-gusa injured his ankle when he slammed on his brakes during the hydroplaning incident. However, there was sufficient testimony to show that Mr. Saragusa did not injure his ankle during the hydroplaning incident and that this incident occurred after the July 28th injury. Dr. Pusateri testified that he had never seen someone sustain this type of ankle injury from slamming on the brakes. Further, three other witnesses testified that the hydroplaning incident in which Mr. Saragusa slammed on the brakes occurred after the July 28th injury. When there are two permissible views of the evidence, the fact-finder’s conclusion cannot be manifestly erroneous or clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Thus, we find no error in the trial court’s finding that Mr. Saragusa was injured by accident during the course and scope of his employment on July 28, 1998.

Auto Craft argues that the trial judge was manifestly erroneous in awarding medical benefits to Mr. Saragusa because of his failure to prove a casual relationship between his medical condition and the accident of July 28, 1998. Having found that the evidence supports the trial court’s finding that Mr. Saragusa | smet his burden of proving a work related accident, we find no error in the trial court’s award of medical benefits for the injury sustained in this accident.

Auto Craft goes on to argue that the trial judge was manifestly erroneous in awarding penalties and attorney’s fees for its alleged arbitrary and capricious failure to pay medial expenses. It claims that this matter was reasonably controverted, thus penalties cannot be awarded.

LSA-R.S. 23:1201 provides for penalties and attorney’s fees for the employer’s failure to pay for medical treatment for an injured worker that is reasonable and necessary, unless the claim is reasonably controverted by the employer. The determination of whether an employer should be cast with penalties and attorney’s fees in a workers’ compensation proceeding is a question of fact that will not be disturbed on appeal absent manifest error. Jackson v. Quikrete Products, Inc., 2001-1181 (La.App. 4 Cor. 4/17/01), 816 So.2d 338.

Dr. Pusateri testified that he examined Mr. Saragusa on July 28,1998 after he had fallen at work. Dr. Pusateri explained that this injury was superimposed on a previous injury, which Dr. Pusateri testified were the previous times Mr. Saragusa had twisted his ankle at work. Dr. Pusa-teri testified that he told Mr. Walker that he had never seen an ankle injury like the one sustained by Mr. Saragusa from slamming on the brakes of a car. Dr. Pusateri recommended surgery on the ankle if it continued to be symptomatic, meaning that it continued to give out. Dr. Pusateri explained that the injury had caused the lateral aspect of the ankle to become unstable. After speaking to Dr. Pusateri, Mr. Walker requested that Mr. Saragusa be examined by Dr. Grimm, a physician chosen by Mr. Walker. Dr. Grimm examined Mr. Saragusa six months after the accident. He noted that there was a lot of stiffness in the ankle and recommended physical therapy. When Mr. Saragusa returned to Dr. Grimm following physical therapy, there was an increased range of motion in the ankle, but Mr. Saragusa continued to complain of 19pain. Dr. Grimm recommended an MRI to determine the reason for the continued pain. At that point Mr. Walker refused to pay for any further medical expenses.

LSA-R.S. 23:1201E provides that medical expenses be paid within 60 days of the employer or its insurer receives notice of the expense. There is no mention of when Mr. Walker or Auto Craft received notice of the medical expenses incurred after the MRI was ordered, but it is undisputed that no further medical expenses were paid. We find that Mr. Walker’s claim that Auto Craft was not arbitrary and capricious for failing to pay for further medical expenses to be without merit. The allegation that this injury was sustained when Mr. Sara-gusa slammed the brakes on a car is likewise without merit. Dr. Pusateri testified that he told Mr. Walker that he had never seen an injury such as the one suffered by Mr. Saragusa from slamming on brakes. Not satisfied with this response, Mr. Walker asked that Mr. Saragusa be examined by a physician of Mr. Walker’s choosing. Mr. Saragusa complied. When the second physician ordered an MRI, Mr. Walker arbitrarily refused to pay for any further medical expenses. Thus, the trial court correctly awarded $2,000.00 penalties for Auto Craft’s failure to pay for medical expenses.

Auto Craft also assigns as error the trial court’s award of indemnity benefits to Mr. Saragusa when the parties agreed that no indemnity benefits were due. At the beginning of trial, Mr. Sara-gusa’s attorney stated that with regard to weekly indemnity benefits, his client had “no entitlement — or no claim for those through this point, and that that is not an issue today.” In his appellate brief, Mr. Saragusa agrees that he was not owed any indemnity benefits at the time of trial. Thus, we amend the trial court judgment to delete the award for payment of temporary total disability benefits and payment of supplemental earnings benefits, as well as the penalty in the amount of $2,000.00 for failure to pay indemnity benefits.

iipAuto Craft further argues that the $6,000.00 in attorney’s fees awarded were excessive when the parties agreed that no indemnity benefits were due and requests that the fees be reduced accordingly.

In awarding attorney’s fees, the court should consider the skill and work involved in the case, the number of court appearances, the depositions and time spent in court. Archbold v. Maxicare Health Plans, Inc., 98-531 (La.App. 5 Cir. 12/16/98), 722 So.2d 1200. At the time of the trial, this matter had been pending for over four years, several motions had been heard, numerous depositions had been taken, and the trial lasted nearly two days. Mr. Saragusa’s testimony itemized attorney’s fees and expenses totaling $9,537.50. The trial court’s award of $6,000.00 is supported by the record and we see no reason to reduce the award because the trial court erred in awarding indemnity benefits. The record does not show that indemnity benefits were ever contested and that the entirety of the work was performed to obtain medical payments.

MR. SARAGUSA’S ASSIGNMENTS OF ERROR:

In answering the appeal, Mr. Sar-agusa claims the trial court erred in failing to render judgment against Mr. Walker personally as Mr. Saragusa’s statutory co-employer. However, our review of the record indicates that Mr. Saragusa did not prove that Mr. Walker, individually, and Auto Craft were joint employers of Mr. Saragusa. Mr. Saragusa claims that he was compensated both by check from Auto Craft and by cash that came from Mr. Walker’s pocket. Mr. Saragusa contends that he was routinely paid in cash because Mr. Walker wanted to avoid paying additional taxes. Mr. Walker and the other Auto Craft employees who testified were questioned extensively regarding cash payments. The other Auto Craft employees denied ever being paid in cash. Mr. Walker testified that Mr. Saragusa continually asked to be paid in cash so that his child support payments would not lube increased. He admitted paying Mr. Saragu-sa in cash on two occasions in the amount of $100.00 each time when Mr. Saragusa was requesting total cash payments. The trial court apparently did not believe that Mr. Saragusa was routinely paid in cash or that Mr. Walker employed Mr. Saragusa outside of Auto Craft. Thus, we see no error in the trial court’s failure to render judgment against Mr. Walker personally.

Mr. Saragusa also argues that the judgment should be amended to include indemnity benefits for any future disability. Mr. Saragusa contends that when he has ankle surgery he will be disabled for four to six weeks and is entitled to indemnity benefits for the amount of time missed from work due to this surgery. Our review of the record indicates that Mr. Sara-gusa did not prove that he will need surgery in the future. Dr. Pusateri testified that he would recommend surgery if Mr. Saragusa’s ankle becomes symptomatic, meaning that it gives out. Dr. Grimm testified that he would not recommend surgery at this time. Mr. Saragusa testified that his ankle is stiff and painful, but he never testified that the ankle gives out. Thus, the trial court correctly denied indemnity benefits for any future disability.

Finally, Mr. Saragusa requests an increase in the attorney fee award for this appeal. A workers’ compensation claimant is entitled to an award of additional attorney’s fees for work performed in defending an appeal by the employer. Rachal v. Good Neighbor Glass, Inc., 2003-1288 (La. App. 3 Cir.3/3/04), 867 So.2d 129. Accordingly, we award an additional $1,000.00 for work performed on this appeal.

1 ^.CONCLUSION:

For the foregoing reasons, the judgment of the trial court is amended to delete the awards of indemnity benefits and penalties for failure to pay indemnity benefits and award an additional $1,000.00 attorney fees for legal work on this appeal. The judgment of the trial court is affirmed in all other respects.

AFFIRMED AS AMENDED.

h REHEARING GRANTED:

This rehearing is granted for the limited purpose of clarifying that nothing in the opinion issued in this matter should be construed to affect plaintiffs right to medical treatment for his ankle injury.

      . A judgment granting a Motion for New Trial erases the trial court judgment and puts the parties in the positions they occupied prior to trial. See Davis v. Witt, 2002-31-2 (La.7/2/03), 851 So.2d 1119. Before a new trial could be held on the issue of indemnity, Auto Craft filed a suspensive appeal from both the original judgment and the new trial judgment. While we recognize the proper procedure is for the trial court to conduct a new trial on the issue for which a new trial was granted prior to appeal, when as is the case herein, the trial court granted a new trial to correct an obvious error, as discussed later in this opinion, we will exercise our appellate jurisdiction in the interest of judicial economy and render judgment on all issues including that for which a new trial was granted.


author: | .CLARENCE E. McMANUS, Judge. hROTHSCHILD, J.,

text:
    VOLVO TRUCKS NORTH AMERICA, INC. v. The STATE of Louisiana through the LOUISIANA MOTOR VEHICLE COMMISSION., Crescent Ford Truck Sales, Inc. v. Volvo Trucks North America, Inc. and Louisiana Motor Vehicle Commission.
    Nos. 04-CA-302, 04-CA-303.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.
    Rehearing Denied Dec. 2, 2004.

      Leonard L. Levenson, Colleen Boyle Gannon, New Orleans, LA, for Plaintiff/Appellee-2nd Appellant.
    Sidney L. Shushan, C. Theodore Al-paugh, III, Jonathan M. Shushan, Guste, Barnett & Shushan, New Orleans, LA, for Plaintiff/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | .CLARENCE E. McMANUS, Judge.

The instant proceeding started when Crescent filed a Verified Emergency Petition for an Interlocutory and Permanent Cease and Desist Order against Volvo, to Enjoin Termination of Dealer Sales and Service Agreement with the Louisiana Motor Vehicle Commission, (LMVC). After the parties submitted a joint stipulation of facts, Crescent’s petition was heard before a three member panel of the LMVC. The LMVC granted relief in favor of Crescent.

Thereafter, Volvo filed a petition for judicial review of Administrative Decision, naming the LVMC as defendant. Crescent also filed a petition for Partial Judicial review of the Administrative decision, naming both LMVC and Volvo as defendants. Crescent also filed a petition for intervention in the suit initiated by Volvo. The cases were consolidated for consideration.

On November 19, 2003, the trial court rendered judgment affirming the decision of the LMVC. Both parties have appealed from that decision.

FACTS

The pertinent facts are not in dispute, and were the subject of a joint stipulation entered into by the parties prior to the administrative hearing. Basically, the facts established that in November of 1996, Volvo sold to Crescent, |3and Crescent leased to Luciano, a fleet of fifty Volvo trucks. The purchase agreement was prepared by Crescent, approved by Volvo and signed by Luciano, before the trucks were built. At the time of the lease, Glenn Koch of Crescent signed Louis Saia’s name to the warranty registration. Glenn Koch stated that Saia gave him permission to sign the warranty; however, Saia denies that he gave permission. In November of 1999, Luciano sued Volvo in federal court. Crescent was not named in the suit. In the suit, Luciano claimed damages for unpaid repairs, breach of contract, oral warranty, and fraud. The suit was settled in February of 2002. Crescent did not contribute anything to the settlement.

Volvo and Crescent entered into a series of Dealer Sales and Service Agreements/Contracts with Volvo Trucks, dated January 1, 1992, April 1, 1995, and June 20, 2000. The 1995 contract was in effect at the time of the Luciano purchase. The contract provided in part that “Under no circumstances should anyone other than the customer sign the warranty registration.” The contract further provided that

Section 5.04 Termination by the Company for Cause”
(a) General. The Company may terminate this Agreement on reasonable advance notice upon the occurrence of any of the following:
(vii) A misrepresentation by the Dealer of a material fact in connection with ... any financial statement or other document submitted by the Dealer under this Agreement ...”
(xvi) Failure of the Dealer to perform any material obligation under this Agreement.
(xvn) A significant act or omission of the Dealer which is damaging to the Company or the network of dealers.
(b) Non-Performance.
... In the event the Dealer fails to perform any material duty or obligation imposed upon it by this Agreement, the Company may (i) terminate this Agreement upon reasonable notice ...

|4The Dealership agreement was again renewed in 2000.

In rendering judgment, the LMVC made findings of fact that Crescent Ford Truck Sales, Inc. and Volvo Trucks North America, Inc. entered into a Dealer Sales and Service Agreement effective April 1, 1995; that the Agreement provided that “In connection with the sale or lease of Products, Dealer shall execute and require its Customer to execute such warranty documents as the Company shall require, in accordance with its policies as announced from time to time;” that the Warranty Administration Procedures Manual of Volvo Trucks North America, Inc. provided that no one other than the customer was to sign the warranty registration; and that Glen Koch of Crescent Ford Truck Sales, Inc. signed the name of Louis Saia, III of Luciano Refrigerated Transport, Inc. to the Warranty Registration of Volvo GM Heavy Truck on January 7,1997.

The Commission then found as a matter of law that the signing of Louis Saia Ill’s name to the Volvo Heavy Truck Warranty Registration by Mr. Glen Koch was a violation of the Dealer Sales and Service Agreement and that this action, on this one occasion, was not just cause for termination of the Dealer Sales and Service Agreement by and between Crescent Ford Truck Sales, Inc. and Volvo Trucks North America, Inc.

|RThe trial court, in affirming the decision of the LMVC, stated that

Defendant’s [sic] argue that Volvo should be allowed to terminate its dealership contract with Crescent Ford because of the signing of a warranty registration card by a manager rather than the customer. This act was stipulated to and shall be maintained. While this act was a violation of the terms of the Dealership Agreement between Crescent and Volvo, it does not constitute a material breach of the contract.
The findings of the Motor Vehicle Commission shall remain in place and shall not be overturned by this court. Because the Commission has not terminated any dealerships without a showing of fraud or gross misconduct does not mean that new rules have been promulgated without notice or proper authority. It simply means that the cases before the Motor Vehicle Commission where the dealership’s [sic] were terminated to date have involved dealer’s pocketing money, stealing money by false warranty claims, or intentional acts to harm the manufacturer.

Both Volvo and Crescent filed for appeal from that decision.

In this appeal, Volvo alleges that the signing by Crescent of Saia’s name to the warranty registration without authority is a clear violation of the Dealership agreement, and that this violation justified termination of the agreement as a matter of law and public policy. It further alleges that the LMVC exceeded its statutory authority when it invalidated Volvo’s termination of the dealership agreement. Next it argues that the “unpublished policy” of the LMVC (to not approve of any termination of a franchise agreement in the absence of fraud) is illegal rule making prohibited by the Administrative Procedures Act, and thus is unenforceable and in violation of Volvo’s right to due process of law. Next, Volvo argues that R.S. 32:1254(N)(6)(c) in unconstitutionally vague and violates due process. Finally, Volvo also argues that the unpublished policy, which is in violation of the Administrative procedures Act, is a violation of the Contract Clauses of the Constitutions of the United States of America and of the State of Louisiana.

Crescent alleges the LMVC’s finding that Crescent violated its dealership agreement with Volvo when Glen Koch signed the name of Saia to the Warranty | ^Certificate was an error of law and not supportable or sustainable by a preponderance of the evidence submitted to the LMVC.

ANALYSIS

We review the district court’s appellate review of a decision of a state agency, the LMVC, under La. R.S. 49:964. Under La. R.S. 49:964(G) the trial court’s review of the LMVC’s decisions is defined as follows:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decision are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of this rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

In our review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of a court of appeal. Giles Automotive, Inc. v. Louisiana Motor Vehicle Com’n, 03-0299 (La.App. 5 Cir. 7/29/03), 852 So.2d 1091.

The Louisiana Motor Vehicle Commission had the authority to enjoin a revocation of franchise agreement, as provided in La. R.S. 32:1254(N)(6)(c), which states:

It shall be a violation of this Chapter:
|7(6) For a manufacturer of motor vehicles, a distributor, a wholesaler, distributor branch or factory branch, or officer, agent, or other representative thereof: (c) To unfairly, without just cause and due regard to the equities of said dealer, cancel the franchise of any motor vehicle dealer[J

We are called upon to review the findings by both the LMVC and the district court that the one action of then salesman Koch, in signing the warranty card on behalf of Saia, regardless of whether he was authorized, was not just cause for the termination of the franchise agreement.

In its first allegations of error, Volvo argues that the signing of Saia’s name to the warranty registration without authority to do so and without ratification by Saia is a clear violation of the dealership agreement. It further argues that this violation justifies termination of the agreement as a matter of law and policy.

Initially, we note that the stipulation of facts underlying this suit provides that Koch signed Saia’s name to the warranty card. It does not state that this was done without authority or ratification, as this fact was disputed by the parties.

In this case, the Commissioners found that, although there was a violation of the agreement between Volvo and Crescent, the one action was not sufficient to constitute just cause, and that the one action was not such that termination of the franchise was warranted. We agree.

Volvo argues that had Koch not signed the warranty card, there would not have been a suit and it would not have suffered damages. However, these assertions go outside of the stipulation of facts as presented to both the LMVC and the district court.

We therefore conclude that the findings of the LMVC were not in excess of the statutory authority given to it, were not arbitrary and capricious or characterized by abuse of discretion, or were manifestly erroneous in view of the evidence on the whole record (which in this case was provided by stipulation).

| Volvo next argues that LMVC’s decision was based on an “unwritten rule” that no terminations would be upheld unless they were either due to dealer fraud or financial default. It argues that this “unwritten rule” is in violation of the Louisiana Administrative Procedures Act and the Federal Administrative Procedures Act, and therefore cannot be enforced. Further, enforcement of this rule is in violation of Volvo’s right to due process under the Administrative Procedures Act. Finally, Volvo argues that this unwritten rule, which limits “acceptable” terminations to just the areas of financial misconduct and fraud violates the Contract Clauses of both the United States and Louisiana Constitutions.

Volvo’s argument that the LMVC created an unwritten rule was based on the comments of one of the commissioners during the hearing of this matter, wherein he stated that the only termination that he remembered being upheld was one that involved fraud and/or theft. Our review of the transcript of that hearing does not support a conclusion, based on those statements, that the LMVC had an “unwritten rule” regarding franchise terminations. Rather, the findings as stated by the Commission reflected that the termination was not upheld for lack of “just cause” and not because there was no fraud or financial default.

Volvo also challenges the constitutionality of the Motor Vehicle laws, alleging that La. R.S. 32:1254(N)(6)(c) is unconstitutional and violates due process. It asserts that the Legislature has not defined the terms “unfair” and “equities of the dealer” in the Code, that these terms are unconstitutionally vague, and that enforcement of these provisions against Volvo is impermissible and unconstitutional under the Fourteenth Amendment to the Constitution. “The longstanding jurisprudential rule of law in Louisiana is that litigants must raise constitutional attacks in the trial court, not the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim | flparticularized.” Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864. The issue of the constitutionality of the Motor Vehicle Laws was not litigated in the district court, and cannot be addressed for the first time in this appeal.

Crescent also appealed, seeking reversal of the conclusion of law by both the LMVC and the district court that Koch’s action was a breach of the dealership agreement. Again we find that this determination was not arbitrary or capricious, nor was it manifestly erroneous.

For the above discussed reasons, the decision of the trial court, upholding the rulings of the Louisiana Motor Vehicle Commission, is affirmed. Costs are divided between the parties.

AFFIRMED.

ROTHSCHILD, J., concurs in part and dissents in part.

hROTHSCHILD, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision to affirm the conclusion of the LMVC and the trial court that Koch’s signing of Saia’s name to the Warranty Certificate was in fact a violation of the dealership agreement. However, I respectfully disagree with the majority’s finding that this violation did not constitute just cause to terminate the dealership agreement between Volvo and Crescent.

The 1995 dealership agreement specifically provides that “[ujnder no circumstances should anyone other than the customer sign the warranty registration.” There is a dispute as to whether or not Saia gave Koch permission to sign the warranty registration. However, regardless of whether or not permission was given, the signing of Saia’s name to warranty registration was a breach of this mandatory term of the agreement.

Both the 1995 and 2000 dealership agreements provide that Volvo may terminate the agreement upon the occurrence of “a significant act or omission of the Dealer which is damaging to the Company or the network of dealers.” I believe that Koch’s signing of Saia’s name to the warranty registration was a significant act that damaged the company, because the federal litigation between Luciano and Volvo arose from a dispute over the|2warranty and this could have been avoided if Saia had signed the warranty documents himself.

Under LSA-R.S. 32:1256 G.(l), the LMVC is authorized to order the renewal or reinstatement of any franchise of a motor vehicle dealer if it has been “unfairly cancelled or not renewed due to lack of just provocation or cause.” However, considering Koch’s violation of the dealership agreement, I do not believe that the franchise was unfairly cancelled.

Accordingly, I would reverse the decision of the LMVC and the trial court and reinstate Volvo’s termination of the franchise, because I believe that Koch’s breach of the dealership agreement was in fact material and grounds for termination under the terms of the dealership agreement.

      . The third agreement, executed in 2000, provides that
      Section 8.4 Termination by the Company for Cause 8.4.1 Reasons for termination the company may terminate this Agreement on reasonable advance notice for any of the following reasons:
      8. Misrepresentation
      Misrepresentation by the Dealer of a material fact in connection with:
      ... any financial statement of other document the Dealer submits under this Agreement ...
      17. Failure to Perform Material Obligation Dealer’s failure to perform any material obligation under this Agreement.
      18. Damaging Act of Omission
      A significant act or omission by the Dealer which is damaging to the Company or the network of dealers.