author: JjJIMMIE C. PETERS, Judge. h COOKS, J.,

text:
    Scotty L. MAYO and Melissa Denise Mayo v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 02-0775.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 2003.

      Larry A. Stewart, Andrew P. Texada, Stafford, Stewart & Potter, Alexandria, LA, for Defendant/Applicant, State Farm Mutual Automobile Insurance Company.
    Dorwan G. Vizzier, Broussard, Bolton, Halcomb & Vizzier, Alexandria, LA, for Plaintiffs/Respondents, Scotty L. Mayo, Melissa Denise Mayo.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   JjJIMMIE C. PETERS, Judge.

Scotty and Melissa Mayo brought suit to recover personal injury and wrongful death damages they sustained in a February 16, 1997 automobile accident. This matter is before us on an application for supervisory writs filed by State Farm Mutual Automobile Insurance Company (State Farm) seeking reversal of the trial court’s denial of its motion for summary judgment. State Farm asserts that it provided no uninsured/underinsured (UM) motorist coverage for the accident at issue.

On February 16, 1997, Scotty Mayo and his wife, Melissa, were involved in an automobile accident with a vehicle driven by Dianne C. Knapp. At the time of the accident, Scotty was driving a 1992 Isuzu pickup truck, which was his separate property. Melissa was a passenger in the truck and, at the time of the accident, was pregnant. Sometime after the accident, she suffered a miscarriage. After filing suit, the Mayos settled their claims for damages with all defendants except State Farm. State Farm provided UM coverage for a 1989 Geo Spectrum, which was Melissa’s separate property. Scotty had rejected UM coverage on his Isuzu pickup truck.

State Farm filed the instant motion for summary judgment contending that La. R.S. 22:1406(D)(l)(e) precluded recovery. The trial court rejected this motion, and State Farm then filed the instant application for supervisory writs. We now grant the writ, enter summary judgment in favor of State Farm, and dismiss the Mayos’ claims against State Farm.

Louisiana Revised Statutes 22:1406(D)(l)(e) provides:

The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

| .This court was presented with a similar factual situation in Brossett v. Progressive Insurance Co., 01-0986 (La.App. 3 Cir. 12/12/01), 801 So.2d 668, writ denied, 02-0130 (La.4/12/02), 813 So.2d 404. In that ease, Mrs. Brossett sought, among other things, UM coverage for damages related to the death of her husband while he was a guest passenger in a vehicle that was her separate property. As in the case before us, the vehicle involved in the accident did not have UM coverage, but a vehicle owned by the deceased husband as his separate property did have UM coverage. Mrs. Brossett sought coverage for her husband’s wrongful death under the UM policy issued on his vehicle. She argued that La.R.S. 22:1406(D)(l)(e) did not apply to preclude UM coverage because her husband did not own the vehicle in which the accident occurred. We found this argument to be without merit. Quoting Iles v. American Manufacturers Mutual Insurance Co., 93-1149, p. 4 (La.App. 3 Cir. 5/4/94), 640 So.2d 451, 453, writ denied, 94-1449 (La.9/23/94), 642 So.2d 1292, we determined that, for purposes of La.R.S. 22:1406(D)(l)(e), “owner” includes a resident spouse. We explained: “To permit recovery of a resident spouse under the UM provision of one policy, but permit the other policy to be obtained at less expensive, non-UM coverage rates, would be contrary to the purpose of the anti-stacking provision.” Brossett, 801 So.2d at 674. Likewise, in the instant case, Melissa, a resident spouse, is not entitled to UM coverage under the State Farm policy issued on her Geo Spectrum.

Further, the State Farm policy itself provides that there is no UM coverage “FOR BODILY INJURY TO AN INSURED WHILE OCCUPYING A MOTOR VEHICLE OWNED OR LEASED BY THE INSURED IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR.” The policy defines “INSURED ” for purposes of UM | .^coverage as the first person named in the declarations, i.e., Melissa, and her spouse. Additionally, the policy defines “YOUR CAR” as “the car or the vehicle described on the declarations page.” The Geo Spectrum is described on the declarations page. Thus, under the terms of the policy, there is no UM coverage for Melissa’s bodily injury because she was occupying a vehicle owned by an “insured,” i.e., her husband, and the vehicle involved in the accident was not the vehicle described on the declarations page.

DISPOSITION

For the foregoing reasons, we grant the writ, render summary judgment in favor of State Farm Mutual Automobile Insurance Company, and dismiss the claims of Scotty and Melissa Mayo. We assess costs to the Mayos.

WRIT GRANTED AND MADE PEREMPTORY.

COOKS, J., dissents and assigns written reasons.

WOODARD, J., dissents for the reasons assigned by Judge COOKS.

h COOKS, J.,

dissents.

The issue presented is whether the law precludes Melissa Mayo from recovering under her own UM policy for her injuries and for the wrongful death of her child when she was riding as a guest passenger in an automobile owned solely by her husband. It is undisputed if Melissa Mayo were riding in a car owned by an unrelated third party, who was underinsured, she would be allowed to recover under her own UM policy. Likewise if she were involved in an accident in her own vehicle (a Geo Spectrum) and the tortfeasor was underin-sured, she would be allowed to recover under the UM policy, which lists the Geo Spectrum. The majority finds Mrs. Mayo is barred from recovery because she did not list her husband’s separately owned vehicle in her policy. The majority relies on La.R.S. 22:1406(D)(l)(e), which provides in relevant part:

The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

(Emphasis added.)

The legislative purpose behind the enactment of this statute was stated in Haltom v. State Farm Mut. Auto. Ins. Co., 588 So.2d 792 (La.App. 2 Cir.1991) as | ¡¿follows:

[T]he amendment to the UM statute was clearly designed to keep vehicle owners from carrying UM coverage on only one of two or more oioned vehicles, thus obtaining the benefit of UM coverage regardless of which vehicle they occupied, at the cost of only one UM policy.

Haltom at p. 794-95. (Emphasis added)

This statute will bar UM coverage if the insured is occupying the owned vehicle at the time of the accident and the vehicle is not listed in the policy under which a claim is made. The majority relies on the Third Circuit case of Brossett v. Progressive Insurance Co., 01-0986 (La.App. 3 Cir. 12/12/01); 801 So.2d 668, writ denied, 02-0130 (La.4/12/02); 813 So.2d 404. However, the facts in Brossett are distinguishable.

In Brossett, Mrs. Brossett was driving a Pontiac, her separate property. The Pontiac was involved in the accident. She had specifically rejected UM coverage on the Pontiac. Her husband owned a Mitsubishi (his separate property) which had UM coverage. Mr. Brossett was killed in the accident. Mrs. Brossett sued for the wrongful death of her husband and her own injuries under the policy covering the Mitsubishi. The court found the State Farm policy listed Craig and Amy Bros-sett as the named insured on the UM policy covering the Mitsubishi. Mrs. Bros-sett specifically waived UM coverage on the Pontiac while her husband selected coverage on the Mitsubishi. The Pontiac was involved in the accident. The court found Mrs. Brossett could not recover under a policy naming only the Mitsubishi when she owned the vehicle she was occupying and had specifically rejected UM coverage. Of significance to this court were the following facts:

Amy Brossett had effectively rejected UM coverage on the 1995 Pontiac involved in the accident.... Given that UM coverage was waived on the vehicle in which the accident occurred, and that UM coverage was selected on Mr. Bros-sett’s vehicle, which was not involved in the accident, the question becomes whether the UM selection provision | ¡¡signed by Mr. Brossett can be applied to this situation.

This court held the wife could not recover for her own injuries under a UM policy listing only her husband’s vehicle. The court stated:

Recall, the UM waiver containing Amy Brossett’s signature and the UM selection form indicating selection of lower limits containing Craig Brossett’s signature, are both dated January 14, 1997. To permit recovery of a resident spouse under the UM provision of one policy, but permit the other policy to be obtained at less expensive, non-UM coverage rates, would be contrary to the purpose of the anti-stacking provision.

This language regarding “stacking” is confusing and not really applicable. However, this court also cited La.R.S. 22:1406(D)(l)(e), which is applicable here, and concluded this statute specifically precluded recovery by Mrs. Brossett since she was occupying a car owned by her, but not listed in the UM policy under which she made a claim. As an insured she was required to list her vehicle.

I would agree, under the holding of this court in Brossett, Mr. Mayo is precluded from recovery for his injuries under Mrs. Mayo’s UM policy. He did not list his vehicle in the policy under which he is making a claim. Mrs. Mayo, on the other hand, was simply a guest passenger in a car in which she had no ownership interest. She selected UM coverage on her vehicle and paid premiums which reflected the additional coverage. Her vehicle was specifically described in her UM policy. The situation is not analogous. Mrs. Mayo is making a claim against her UM policy not her husband’s UM policy as was the situation in Brossett. It appears to me Kirkland v. State Farm Mutual Automobile Ins. Co., 95-462 (La.App. 5 Cir.1995), 663 So.2d 872 is analogous to the facts in Mayo.

Thelma Kirkland was a passenger in a Ford truck owned and driven by her husband. The truck collided with a train. Mr. Kirkland was killed and Mrs. Kirkland suffered severe injuries. The truck had liability coverage which was insufficient to cover the damages. Mrs. Kirkland sued State Farm under her UM policy which was Rissued on her own separate vehicle, a Chrysler. State Farm denied UM coverage. State Farm argued to allow Mrs. Kirkland to recover under the UM policy would be contrary to the stacking provisions of La.R.S. 22:1406(D)(c)(ii). The appellate court found the question of stacking was inapplicable to the facts of the case. The applicable provision was La. R.S. 22:1406(D)(l)(e). The appellate court found the parties had a pre-nuptial agreement and were separate in property, stating: “The truck was the separate property of Mr. Kirkland, while the Chrysler was the separate property of Mrs. Kirkland.” The court found both vehicles were separately insured in the names of their respective owners. Each individual paid their own premiums for the different coverages. Mrs. Kirkland had higher limits than Mr. Kirkland and she also had UM coverage. The court held under the statute she was not “owner” of the truck in which she was riding. The court stated:

The key issue in the present case is the status of the automobile in which the plaintiff was injured — here, she was injured while occupying a vehicle not owned by her. The restrictions of La. R.S. 22:1406(D)(l)(e) do not operate to bar Mrs. Kirkland from recovery.

In addition to claiming an “owner” exclusion under La.R.S. 22:1406(D)(l)(e) State Farm also argued Mrs. Kirkland was not covered under the terms of the UM policy. The policy contained an exclusion for vehicles “furnished for the regular use of you, your spouse or any relative.” State Farm argued the vehicle in which Mrs. Kirkland was riding (her husband’s vehicle) fell within this exclusion. The appellate court held this clause did not preclude recovery of UM benefits by Mrs. Kirkland, stating: “A vehicle ‘furnished for ... regular use’ is not, by definition, the same thing, as a vehicle ‘owned’ by the spouse.” The appellate court further concluded:

Therefore, we find it clear that the above quoted portion of the policy does not bar recovery by Mrs. Kirkland under the UM provisions as Mr. Kirkland’s truck was not “furnished” for his use, but was in fact his separate personal property “owned” by him alone.

IsThe court in Brossett (and the majority opinion in Mayo) cited as authority another Third Circuit case, Iles v. American Mfrs. Mutual Insurance Co., 93-1149 (La.App. 3 Cir. 5/4/94), 640 So.2d 451, writ denied, 94-1449 (La.9/23/94); 642 So.2d 1292, which is also distinguishable on its facts, but does provide language defining “ownership” and does support the finding that Mrs. Mayo did not “own” her husband’s truck within the terms of the statute. lies also discusses the legislative policy behind the enactment of La.R.S. 22:1406(D)(l)(e).

The lies case involved a vehicle that was clearly community property. Mr. lies was involved in an accident while operating a Datsun, a vehicle titled and registered to his wife but part of their community property. Mrs. lies, the titled owner, executed a valid waiver of UM coverage on the Datsun. Mr. lies sued American Manufacturing Mutual Insurance Co. arguing the UM exclusion provision contained in his policy did not apply to the vehicle titled in his wife’s name since he was not “owner.” The Datsun was not listed as a covered vehicle under the UM policy. This court held the husband was not entitled to recover. The husband argued he was not the “owner” of a vehicle titled in his wife’s name. This court rejected that limited definition and found:

However, this definition is clearly limited by an introductory proviso which ascribes its meaning to “owner” as appears in that title captioned “Motor Vehicle and Traffic Regulations.” We are convinced the term as defined does not supercede the meaning of “owner” as interpreted and defined in several Louisiana Civil Code articles and other statutory provisions.
Prior to the amendment of La.R.S. 22:1406, a party occupying an automobile not owned by said party could recover under the UM provision of a policy covering him as an insured. However, we agree, as concluded in Haltom v. State Farm Mut. Auto. Ins. Co., 558[588] So.2d 792 (La.App.2d Cir.1991), the Louisiana Legislature passed Act. No. 233 in 1988 (adding Section (D)(1)(e) to this statute) specifically “to keep vehicle owners from carrying UM coverage on only one of two or more owned vehicles, thus obtaining the benefit of UM coverage ^regardless of which vehicle they occupied, at the cost of only one UM policy.”

The court recognized to permit recovery by Mr. lies would allow him to reduce the cost of his insurance coverage by rejecting UM coverage on all but one vehicle. This court stated:

Applying the definition of ‘owner’ as suggested by Robert lies, thus, undermines the clear purpose of the mentioned legislative amendment. This definition also changes the Louisiana codal meaning and jurisprudence interpreting “owner” which also recognizes the existence of community property relationships.

Mr. lies owned an undivided one-half interest in the vehicle. Under the clear intent and wording of the statute, he was precluded from UM coverage.

Another Third Circuit case, Fontenot v. Farm Bureau Insurance Companies, 629 So.2d 495 (La.App. 3 Cir.1993) also is consistent with lies and Brossett and does not bar recovery by Mrs. Mayo. In that case, plaintiff, Monica Fontenot, was injured while riding as a guest passenger in a truck driven by her husband. The Chevy truck was community property and was covered by a liability policy but not a UM policy. Mrs. Fontenot claimed she was entitled to recover under a UM policy covering her Ford Thunderbird. The UM policy specifically excluded coverage, if at the time of the accident, the insured was occupying a vehicle owned by him and not named in the policy. This court held plaintiff was precluded from recovery under the statute, citing the Second Circuit case of Haltom v. State Farm Mut.Auto. Ins. Co., 588 So.2d 792 (La.App. 2 Cir.1991):

[T]he amendment to the UM statute was clearly designed to keep vehicle oumers from carrying UM coverage on only one of two or more owned vehicles, thus obtaining the benefit of UM coverage regardless of which vehicle they occupied, at the cost of only one UM policy.

Haltom at p. 794-95. (Emphasis added)

Since Mrs. Fontenot was occupying a community earned truck which was not |7specifíeally listed on her UM policy, she was barred from recovery.

THE POLICY

The majority finds the language of the policy precludes recovery by Mrs. Mayo. The language in the policy attempts to tract the language of La.R.S. 22:1406(D)(1)(e) and provides an EXCLUSION for UM coverage:

THERE IS NO COVERAGE:
FOR BODILY INJURY TO AN INSURED WHILE OCCUPYING A MOTOR VEHICLE OWNED OR LEASED BY THE INSURED IF IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR.

There also is provides an INCLUSION clause defining individuals covered under the UM policy:

Who is an Insured Under Coverage U Insured — means the person or persons covered by uninsured motorist coverage.
This is:
1. The first person named in the declarations;
2. his or her spouse;
3. their relatives; and
4. Any other person while occupying:
a. Your car
b. a car not owned or leased by you, your spouse or any relative. It has to be driven by the first person named in the declarations or that person’s spouse and within the scope of the owner’s consent.
5. Any person entitled to recover because of bodily injury to insured under 1 through 4 above.

The majority interprets this language as meaning there is no UM coverage for bodily injury for Mrs. Mayo and states:

The policy defines “INSURED” for purposes of UM coverage as the first person named in the declarations, i.e., Melissa, and her spouse. Additionally, the policy defines ‘TOUR CAR” as “the car or the vehicle described on the declarations page.” The Geo Spectrum is described on the declarations page. Thus, under the terms of the policy, there is no UM coverage for Melissa’s bodily injury because she was occupying a vehicle owned by an “insured,” i.e., her husband, and the vehicle involved in the accident was not the vehicle described on the declarations page.

Rln other words, the majority combines an inclusion clause with an exclusion clause to reach a result not in keeping with the statute or jurisprudence.

It is well settled that clauses in an insurance contract that seeks to exclude coverage are independent and must be strictly construed. Any question arising as to their clear meaning must be construed in favor of coverage. Mrs. Mayo complied with the terms of her policy. She does not own the truck she was occupying. The statute (and exclusion clause of the policy) only requires an insured to list owned vehicles. The majority reading of the policy imputes ownership of her husband’s truck to her. The policy cannot change the contemplated statutory definition of ownership nor ascribe a meaning to it that runs afoul of customary usage and common understanding of the term. The only vehicle Mrs. Mayo legally owns is the Geo Spectrum. Her vehicle is listed on the policy and she paid higher premiums for UM coverage. UM coverage is provided to Mrs. Mayo if she is injured in a vehicle she owns and the vehicle is listed or she is injured in a vehicle she does not own, regardless of whether the vehicle is listed or not. If the owned and listed vehicle is involved in the accident, the policy provides coverage for Mrs. Mayo, her spouse, relatives and others. If an insured is involved in an accident in a non-owned vehicle, the insured may obtain coverage under their own UM policy.

Melissa complied with the terms of the statute and policy, her husband did not. Melissa’s husband is barred under her UM policy since the Isuzu truck he was occupying was owned by him but was not listed on the policy. Barring the husband from recovering, but allowing Mrs. Mayo to recover, is in keeping with our holding in Brossett, Fontenot, lies and the clear legislative policy prompting the enactment of La.R.S. 22:1406(D)(l)(e).

WRIT GRANTED AND MADE PEREMPTORY.


source: Caselaw Access Project

author: |, SULLIVAN, Judge.

license: Public Domain

text:
    Richard SMITH v. KANSAS CITY SOUTHERN RAILWAY COMPANY, et al.
    No. 02-1505.
    Court of Appeal of Louisiana, Third Circuit.
    May 28, 2003.

      Michael K. Cox, Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appellant/Appellee, Richard Smith.
    Richard E. Gerard, Jr., Scofield, Gerard, Veron, Singletary & Pohorelsky, Lake Charles, LA, for Defendants/Appellees/Ap-pellants, Kansas City Southern Railway Company, David A. Watkins.
    Andrew P. Texada, Stafford, Stewart & Potter, Alexandria, LA, for Intervenor/Ap-pellant, Government Employees Insurance Company.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   |, SULLIVAN, Judge.

Richard Smith’s wife, Beth, died in a train/automobile accident. After a jury trial, Mr. Smith’s claims against Kansas City Southern Railway Company (KCS), owner of the railroad and the locomotive engine involved in the accident, were dismissed. Mr. Smith, KCS, and Government Employees Insurance Company (GEICO), Mr. Smith’s automobile insurance carrier, intervenor, appeal. For the following reasons, we affirm in part and reverse in part the judgment of the trial court.

Facts

On April 2, 1995, Beth Smith was killed when her car was hit by a KCS train as she attempted to cross a railroad track in Vernon Parish. Mr. Smith filed suit against KCS; David Watkins, the engineer of the KCS locomotive involved in the accident; the Vernon Parish Police Jury (VPPJ); and the Louisiana Department of Transportation and Development. GEICO intervened to recover monies it paid to Mr. Smith pursuant to the terms of his policy for the car Beth was driving at the time of her accident and her funeral expenses. Before trial, the VPPJ and the State were dismissed on motions for summary judgment.

Mr. Smith alleged that KCS was liable for Beth’s death for numerous reasons, including obstructions within its right of way at the crossing which prevented her from seeing the train as it approached the crossing, failure to sound its whistle, failure to warn of the train’s approach to the crossing, and failure to properly sign the crossing.

In November and December 2000, the case was tried before a jury over the course of four days. At the conclusion of the trial, the jury returned a verdict in favor of KCS, finding that neither it nor its employees were at fault in causing the accident. Mr. Smith assigns three errors: the trial court’s refusal to allow the presentation of |2a computer animation of the accident to the jury; the trial court’s refusal to allow his counsel to use demonstrative aids during his opening statement; and the jury’s finding of no fault on the part of KCS and its employees. KCS assigns as error the trial court’s assessment of expert witness fees. GEICO assigns as error the jury’s finding of no liability on the part of KCS and its employees and the assessment of all costs to it and Mr. Smith.

Exclusion of Computer Animation

Mr. Smith assigns as error the trial court’s refusal to allow the jury to view a computer animation of what Beth allegedly saw as she approached the KCS railroad crossing. After a hearing on the qualifications of the person who created the computer animation, the computer program used to create the animation, and the factual information used to create the animation, the trial court refused to allow Mr. Smith to show it to the jury. The trial court expressed concern regarding the sufficiency of evidence produced regarding the computer program used to create the animation. More importantly, the trial court was of the opinion that the animation was created using inaccurate information. The trial court found information regarding two vans situated within the KCS right of way at the crossing to be “woefully inaccurate” because the state trooper who investigated the accident had testified in his deposition that he did not actually measure the vans but “eyeballed” them to determine their dimensions. On this point, defense counsel questioned the animator’s attempts to obtain accurate information regarding the size and placement of the vans in the animation. With regard to placement of the vans, the state trooper had testified that he did not use the same reference point for all of his distance measurements, including the distance of the vans from the railroad track. He was |smore interested in the point of impact and the point of rest of Ms. Smith’s car, so those were the only measurements for which he used the same reference points. He also testified that he considered the other measurements to be secondary and admitted that he did not try to be accurate with any of them.

The admissibility of motion pictures or videotapes is largely within the discretion of the trial judge. In determining the admissibility of such demonstrative evidence, the trial court must consider whether the videotape accurately depicted that which it purported to represent and whether it would aid the jury’s understanding. Against those factors, the trial court must consider whether the videotape may mislead the jury or whether its probative value is outweighed by its prejudicial effect. Lafleur v. John Deere Company, 491 So.2d 624 (La.1986) and Burk v. Illinois Central Gulf Railroad Company, 529 So.2d 515 (La.App. 1st Cir.), writ denied, 532 So.2d 179 (La.1988).

U.S. Fid. & Guar. Co. v. Hi-Tower Concrete Pumping Serv., Inc., 574 So.2d 424, 438 (La.App. 2 Cir.), writs denied, 578 So.2d 136, 137 (La.1991).

The animation at issue is not simply a moving picture of what existed at the KCS crossing when the accident occurred. It was created by an animator who used a computer program and specific information provided to him regarding the train, Beth’s car, and physical objects at or near the crossing to recreate what Beth allegedly saw as she approached the crossing. As discussed above, defense counsel brought out on cross-examination of the animator that some of the information he relied upon to create the animation was inaccurate.

Under these facts, we find no error with the trial court’s refusal to allow the animation to be shown to the jury.

Use of Demonstrative Aids During Opening Statement

Counsel for Mr. Smith sought to refer to and display to the jury during his opening statement an exhibit which the parties had stipulated was going to be Lintroduced into evidence. Counsel for KCS objected, and the trial court refused to allow it.

The trial court is vested with wide discretion in his control of the opening statement. State v. Smith, 625 So.2d 620 (La.App. 8 Cir.1993). A situation similar to this one was presented in State v. Hodges, 526 So.2d 1275 (La.App. 3 Cir.), writ denied, 532 So.2d 174 (1988). In Hodges, the trial court allowed counsel to verbally refer to exhibits which were to be introduced into evidence during the trial but would not allow the exhibits to be shown or demonstrated to the jury during the opening statement.

We recognize that the parties stipulated the evidence at issue would be admissible at trial, so there was no concern regarding admissibility of the evidence. And, considering the stipulation, we are somewhat perplexed by defense counsel’s objection to the reference and display of the evidence during opening statement. However, we cannot say that the trial court abused its much discretion by refusing the request.

Jury’s Finding of No Fault by KCS

Mr. Smith appeals the jury’s finding of no fault on the part of KCS or its employees. The manifest error standard is applicable to our review of this matter. Under this standard, when the inferences drawn by the trier of fact from the record are reasonable, those inferences will not be set aside on appeal. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993).

The jury heard the testimony of witnesses who saw the accident as it happened, witnesses near the accident site when it occurred, the KCS locomotive engineer, KCS employees responsible for maintaining the right of way at the crossing, and three Uexpert witnesses on train safety and train regulations, who gave their opinions regarding KCS’s liability. The witnesses who saw the accident testified that the train blew its whistle well before the crossing, and one of them also testified that she saw that the locomotive’s lights were on. The locomotive engineer testified that he began sounding the whistle beginning one-quarter mile before the crossing. The black box recorder on the engine confirmed that the whistle was sounded one-quarter mile before the crossing and that the high-beam fights on the locomotive were on at the time of the accident. The locomotive engineer’s testimony that he was traveling at the required speed limit, 45 m.p.h., was also confirmed by the black box recording. While there were two people in the area of the accident who testified that they did not hear a whistle, it was the jury’s role to weigh this evidence and determine which was more probably correct.

The jury was also shown photographs of the crossing which showed the vans and other items which Mr. Smith contends blocked Beth’s view of the crossing as she approached it. One of the photographs showed the crossing with the alleged obstructions and railroad cars on the track behind the vans. One witness to the accident testified that he saw no reason that a driver in Beth’s position would not have seen the train as it approached the crossing.

The following testimony of the other witness to the accident and the locomotive engineer regarding Beth’s actions immediately prior to the accident may have also contributed in large part to the jury’s verdict. The witness testified:

She came up to the railroad tracks slowing down but was still moving, looked to her right and then to her left and then gunned it and that’s when the train hit her.

The locomotive engineer testified:

| fiYes, sir, I did get close enough to see her and she did look-was looking to the right the whole time.
No sir, it appeared to me that she was going to stop.... I would say in my line of work—twenty some odd years of experience in this, I would say that there is not a doubt in my mind that the lady could have stopped as slow as she was going had she [ ] looked in our direction.

The parties’ experts presented opposing opinions regarding KCS’s liability.

Considering all of the evidence presented at trial, the jury could have reasonably concluded that the alleged obstructions did not block Beth’s view of the train. Accordingly, we cannot set aside the verdict.

Assessment of Expert Witness Fees

KCS assigns as error the trial court’s assessment of its expert witness fees, arguing the trial court’s award of $5,000.00 for expert witness fees was unreasonable because its actual expert witness fees were $38,157.98. In Trans La. Gas Co. v. Heard, 629 So.2d 500, 505 (La.

The fixing of expert witness fees is largely within the sound discretion of the trial court, and, on appeal, we may not reverse the trial court’s fixing thereof absent an abuse of discretion. In fixing expert witness fees, each case must turn on its own peculiar facts and circumstances. However, the jurisprudence has provided us with factors to consider such as the amount of time consumed by the experts in compiling their reports; the amount charged the landowner; the amount of time spent in preparing for trial; the amount of time actually spent in court; the expertise of the expert; the difficulty of the appraisal; the amount involved in the award; and the degree to which the expert’s opinion aided the court in its decision.

In its reasons for ruling on KCS’s motion to set expert witness fees, the trial court outlined these factors, highlighting consideration of the “helpfulness of expert’s testimony.” The trial court then noted:

17It appears that the experts called to testify in this case were of little help to the Court in deciding the case inasmuch as it is clear that the jury was influenced by the testimony of lay witnesses to the effect that plaintiffs deceased wife and operator of the motor vehicle was looking in the opposite direction from the train at the time she attempted to cross the tracks.

We find no abuse of discretion by the trial court in its fixing of the expert witness fees.

Assessment of Court Costs

GEICO intervened seeking reimbursement of $19,475.00 it paid Mr. Smith for his vehicle and $3,000.00 it paid for funeral expenses pursuant to the medical payments coverage of its policy. The trial court’s judgment assessed Mr. Smith and GEICO with “all” costs of court. GEICO contends that the trial court’s assessment of all costs to two parties without apportioning them between the parties is “not equitable under the facts of this case” because it can be called upon to pay 100% of the costs, even though it did not participate to the same extent that Mr. Smith did in the litigation.

A trial court’s assessment of court costs will not be disturbed on review in the absence of an abuse of discretion. Ford v. State, through Dep’t of Pub. Safety, 00-1546 (La.App. 3 Cir. 6/5/02), 819 So.2d 1156. Under the circumstances of this case, we find that the trial court’s assessment of all costs to Mr. Smith and GEICO without apportioning them between the parties is an abuse of discretion. Accordingly, we assess Mr. Smith and GEICO each -with one-half of all costs, including expert witness fees. In doing so, we are mindful of GEICO’s arguments regarding the extent of its participation in the litigation and its potential recovery as compared to Mr. Smith’s participation and potential recovery. However, we are also mindful that if Mr. Smith | ¡¡had recovered, GEICO would have benefited from the costs expended by his counsel and that without Mr. Smith’s lawsuit it had no chance of recovery.

Decree

For these reasons, the judgment of the trial court is affirmed in part and reversed in part. Court costs at the trial level, including expert witness fees, are assessed one-half to Richard Smith and one-half to Government Employees Insurance Company. Costs of this appeal are assessed one-third each to Richard Smith, Kansas City Southern Railway Company, and Government Employees Insurance Company.

AFFIRMED IN PART AND REVERSED IN PART.


author: I,THOMAS F. DALEY, Judge.

text:
    Laura L. COX, v. Frank JULIAN, Jr. and Allstate Insurance Company.
    No. 03-CA-107.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Rehearing Granted June 4, 2003.

      Charles A. Kronlage, Jr., Kronlage & Kronlage, APLC, New Orleans, LA, for Plaintiff/Appellant.
    Donald R. Klotz, Jr., Frank J. Romagu-era, IV, Law Offices of Harold G. Toscano, New Orleans, LA, for Defendants/Appel-lees.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE E. MCMANUS.
   I,THOMAS F. DALEY, Judge.

The plaintiff, Laura Cox, has appealed the jury award for damages she suffered in an automobile accident. For the reasons that follow, we affirm the judgment and amend the past pain and suffering award. '

FACTS:

On December 13, 1999, Ms. Cox was struck from the rear by a car driven by the defendant, Frank Julian, and insured by the defendant, Allstate Insurance Company (Allstate). The force of the impact propelled her into the ear in front of her, totally demolishing her car. She settled with Allstate in its capacity as the tortfea-sor’s insurer, and proceeded to trial against Allstate in its capacity as her uninsured motorist carrier.

Ms. Cox testified that the accident occurred as she was starting to apply the brakes for a red light. She saw the defendant’s car approaching at a high rate of speed and saw there was nowhere for her to go. The impact caused her to be |?,thrown back, forward, and back again, pushing her seat into a lying position. She immediately felt pain in the back of her head. She was treated in the emergency room at Baptist Hospital on the day of the accident. She complained of pain in the back of her head and was prescribed Flex-aril. A few days later she felt confused and disoriented. She returned to the emergency room and was told to stop taking the Flexaril.

Ms. Cox testified that a few days after the accident, she was feeling worse, rather than better, so she sought treatment from Dr. Michael Haydel, who had previously treated her for sciatica. She was experiencing pain in her neck and low back. Ms. Cox testified that Dr. Haydel gave her an ice pack to use several times per day on these areas. She explained that when she visited his office, he put electrodes in her back and manipulated her back. Ms. Cox testified that Dr. Haydel referred her to an orthopedist, Dr. Scheufler, a neurosurgeon, Dr. Bartholomew, and a neurologist, Dr. Shamsnia. Ms. Cox explained that she underwent an MRI as well as an electro-myelogram (EMG). She testified that the EMG was painful.

Ms. Cox explained that her job involves sitting at a desk and that usually by mid afternoon, she is having discomfort. At the time of trial, she continued to experience episodes of pain and was still being treated by Dr. Haydel. Ms. Cox testified that she had not missed any work as a result of the accident because she scheduled her doctor’s appointments after work.

Dr. Michael Haydel was accepted by the court as an expert in chiropractic medicine. Dr. Haydel testified that he first treated Ms. Cox in August 1999 for complaints of pain up her left leg to her buttocks. She did not complain of neck or back pain at that time. He treated her for that condition until November 22, 1999. Dr. Haydel testified that Ms. Cox returned to his office on December 21, 1999 complaining of pain in her head, pain and stiffness in her neck, and low back pain since an automobile accident on December 13, 1999. Dr. Haydel testified that | ¿there were muscle spasms in her back and neck and decreased range of motion in her low back. Dr. Haydel diagnosed cervical sprain/strain, lumbar sprain/strain, headache, and muscle spasm. Dr. Haydel explained that he treated these conditions with joint mobilization and a muscle stimulator. He referred her to Dr. Scheufler, a rehabilitation physician for medication. Ms. Cox continued to complain of pain, so he referred her to a neurosurgeon, Dr. Bartholomew, and then to Dr. Shamshia to perform further tests. Dr. Haydel testified that the EMG and nerve conduction study showed damage to the nerve root between the fifth and sixth cervical vertebrae. Dr. Haydel explained that this correlated with the herniation of the disc at this level seen on the MRI.

Dr. Haydel testified that the purpose of his treatment was to alleviate Ms. Cox’s pain, but that he would never be able to correct her disc problem. He explained that she will need continued treatment in the future, but he did not opine as to how long she would need treatment.

Dr. Daniel Johnson, Jr. was accepted by the court as an expert in diagnostic radiology. He testified that he performed an MRI on Ms. Cox on December 8, 2000 that showed a herniation between the fifth and sixth cervical vertebrae. He explained that on the film this disc was overlapping the back of the upper portion of the sixth cervical vertebrae extending between the ligament that runs along the back of the vertebral body. He testified that there was stenosis in the area where the nerve root comes through that caused by “fairly good-size spurring.” Dr. Johnson explained that spurring is abnormal.

Dr. Morteza Shamsnia, a neurologist, testified that she performed an EMG and nerve conduction studies on Ms. Cox. Dr. Shamsnia testified that these studies indicated that Ms. Cox had nerve damage or a pinched nerve between the fifth and sixth cervical vertebrae. She explained that this test is an objective test and the patient has no control over the results. Dr. Shamsnia testified that the results of the Iftests were consistent with Ms. Cox’s complaints of pain in the neck spreading across both shoulders. She explained that patients with this type of nerve damage have chronic pain for an indefinite period of time. Dr. Shamsnia agreed with Dr. Johnson’s interpretation of the MRI of depicting a herniated disc.

On cross-examination, Dr. Shamsnia was questioned about the tracings from these tests. She explained that the report shows all of the numbers from the tests, so there is no need for the tracings. She admitted that the report from these tests was her interpretation of the tracings.

Dr. David Aiken, an orthopedic surgeon, testified on behalf of Allstate. Dr. Aiken testified that he examined Ms. Cox on July 19, 2001. He testified that there were no abnormal findings on his examination and that she had no tenderness, no spasms, and full range of motion in her neck and back. Dr. Aiken explained that her reflexes were normal, another indication that there is no pinched nerve. Dr. Aiken went on to explain that Ms. Cox’s did not have a herniated disc in her neck, rather, she had a bulging disc. He explained that as the disc degenerates as a normal part of the aging process, the bones begin to slide across each other and a bone grows across the disc space. As a result of the aging process, Ms. Cox had developed a bone spur at the lower border of the sixth cervical vertebrae. He testified that this is a normal finding in a 51 year old woman and that it took five to ten years to develop. He testified that there were no findings on the MRI that he would directly relate to this accident.

With regard to the EMG and nerve conduction studies, Dr. Aiken explained that these tests produce a reading on an oscilloscope that can be printed out. Because this was not printed out, he was unable to see the actual readings and could not agree with Dr. Shamsnia’s findings. Dr. Aiken testified that his physical examination did not indicate any nerve damage.

| RPr. Aiken further testified that when a person gets in an accident such as this, it is not uncommon to suffer neck and back pain, and that in the majority of people this pain lasts for three to six months. He testified that there was nothing in his exam, her x-rays, or the MRI to explain why she continued to have pain.

Medical records and medical bills were introduced into evidence that corroborated the testimony of the physicians and plaintiff.

At the conclusion of trial, the jury made the following awards:

Plaintiff then filed a Motion for JNOV, New Trial, or Additur. The trial judge amended the award to include $5,000.00 for future pain and suffering. It is from this judgment that plaintiff has appealed.

DISCUSSION:

On appeal, the plaintiff contends the trial court erred in failing to grant her Motion for JNOY or New Trial. Plaintiff argues that the trial judge erred as a matter of law when he awarded plaintiff future pain and suffering using the lowest amount possible. Plaintiff contends that the trial judge should have conducted a de novo review of the evidence when the trial court determined that the jury erred in not awarding damages for future pain and suffering. Plaintiff also argues in the alternative that the jury’s verdict was manifestly erroneous.

Defendant responds that the jury verdict was not inconsistent and is supported by the testimony. Defendant contends that plaintiff was adequately compensated for her injuries.

1After the jury verdict, plaintiff filed a Motion for JNOV, New Trial, or Additur. The trial judge stated that he was denying the Motion for JNOV, denying the Motion for New Trial, and granting an Additur of $5,000.00.

Code of Civil Procedure article 1814 provides:

If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the issue of quantum is clearly and fairly separable from other issues in the case. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith.

The record does not indicate that the defendant agreed to or objected to the addi-tur. However, this is a devolutive appeal and defendant has already paid plaintiff the judgment amount which included the $5,000.00 additur. Additionally, on appeal, defendant contends the amounts awarded are reasonable. Thus, we find the defendant tacitly agreed to additur. See Accardo v. Cenac, 1997-2320 (LaApp. 1 Cir. 11/6/98), 722 So.2d 302.

The jury awarded Ms. Cox damages for future medical care, but failed to award damages for future pain and suffering. When a jury finds a plaintiff suffered injuries in an accident, awards special damages, but fails to award general damages, the verdict is inconsistent. Cheramie v. Horst, 93-1168 (La.App. 1 Cir. 5/20/94), 637 So.2d 720. An inconsistent verdict is a legal error. Id. A new trial is a correct option to correct a legal error. Id. Additur may be granted as an alternative to a new trial. C.C.P. art. 1814. Thus, we find the trial judge did not err in granting plaintiffs Motion for Additur.

Having determined that the grant of additur was proper, we must now determine if the trial court awarded a reasonable amount. Once it is determined that additur is proper, the amount awarded on additur should be raised only to the lowest reasonable amount. Accardo v. Cenac, supra. In reviewing an amount | ¿¡granted on additur, the court shall consider the reasonableness of the jury verdict. C.C.P. art. 2083(B).

Dr. Shamsnia testified that patients with the type of nerve damage that Ms. Cox has experience chronic pain for an indefinite period of time. Dr. Haydel testified that plaintiff will require future treatment, but he did not state how long treatment would be required. At the time of trial, plaintiff had been under the care of Dr. Haydel for just over two years. Her medical expenses from Dr. Haydel for this time period totaled $8,009.00. This amount also included an examination by another physician in Dr. Haydel’s office. Dr. Haydel’s office records indicate that just prior to the time of trial, plaintiff was visiting his office twice a month at a cost of $120.00 per visit. The jury’s award of $3,000.00 for future medical will allow just over another year of treatment at this same rate. We find the amount awarded by the jury for future medical care to be reasonable. Ms. Cox testified that she continues to have episodes of pain and discomfort. Dr. Shamsnia testified that patients with the type of nerve damage sustained by Ms. Cox have chronic pain for an indefinite period of time. Given this evidence, we find the trial judge’s award of $5,000.00 for future pain and suffering to be appropriate.

We now address plaintiffs argument regarding the jury’s award for past pain and suffering.

The standard for appellate review of general damage awards is whether the trial court abused its great discretion in fixing the award. In Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), the Supreme Court upheld the longstanding rule that an appellate court is not to decide what it considers an appropriate award, but rather to review the exercise of discretion by the trier of fact, considering the particular injuries and their effects on the particular circumstances of the particular plaintiff. Id. Only when the appellate court |fldetermines that the trier of fact abused its much discretion, may the award be set aside as either too high or too low. Id.

Plaintiff was awarded $12,306.00 the full amount of her medical expenses from the date of the accident to the date of trial. In light of this award, we must now review the record to determine if the $7,000.00 award for physical and mental pain, suffering, and anguish from the date of the accident to the date of trial was adequate.

Plaintiff testified the accident created a great deal of fear and anxiety for her. Her car was hit from behind and pushed into a car in front of her. The force of the rear impact completely demolished her late model midsize car. The pictures entered into evidence show that portions of the trunk were completely pushed into the back seat. The pictures indicate the entire front of the car was severely damaged. The force of the impact broke the front seat of the car. After the accident, she was treated at the emergency room. Plaintiff testified and the emergency room records reflect that plaintiff had pain and tightening in her neck. She was prescribed two medications, one of which was Flexaril.

Plaintiff testified that she had no previous neck or back pain. Since the accident, she continues to have neck and back pain. She explained that her job involves sitting at a desk and by mid-afternoon she experiences discomfort due to her injury. She testified that the pain comes and goes and that Dr. Haydel’s treatments help the pain.

Dr. Haydel’s medical records indicate that plaintiff presented to his office approximately two weeks after the accident and stated that the neck pain began the same day as the accident, while the back pain began a day or two later. She filled out a form indicating that the pain was constant, rating it an 8 on a 10 point scale. A report from an examination by Dr. Scheufler on December 27, 1999 indicates that plaintiffs pain was still constant and 8 out of 10 in severity. Dr. Scheufler Imfound plaintiff had significant tenderness in the cervical and lumbar areas; she diagnosed plaintiff as having both cervical and lumbar strain with spasm. She prescribed medication for inflammation and pain.

Dr. Haydel’s medical records indicate that plaintiff visited his office three times per week for almost four months after the accident. In March of 2000, Dr. Haydel referred plaintiff to Dr. Bartholomew because of continued complaints of pain. Dr. Bartholomew prescribed medication and told her to continue treatment with Dr. Haydel. Over the remainder of 2000, plaintiff continued to return to Dr. Haydel on a regular basis. In December 2000, Dr. Haydel referred plaintiff to Dr. Johnson for an MRI. Dr. Johnson testified that this MRI showed a herniated cervical disc. While Dr. Aiken, who performed an IME and who testified for the defendant, disagreed that there was a herniated disc, he agreed that there was narrowing in that area and testified that there was a bulging disc. In January 2001, Dr. Haydel referred plaintiff to Dr. Shamsnia who performed tests on the nerves of plaintiffs arms. Dr. Shamsnia testified that these tests, which were objective, indicated plaintiff had damage to the nerves at the level of the herniated disc. Plaintiff continued under the care of Dr. Haydel throughout 2001. At the time of trial, February 4, 2002, Dr. Haydel testified that plaintiff remained under his care. There was no testimony regarding possible future surgery for plaintiffs condition.

This trial took place over two years after this accident. Plaintiff testified that she continued to suffer from pain and discomfort. Her physicians testified that she would continue to suffer from pain and will require future medical care. The medical records indicate that plaintiff sought treatment for her neck pain immediately after the accident and continued to seek treatment on a regular basis. She followed Dr. Haydel’s advice and sought opinions from other physicians and under went further diagnostic testing. After reviewing the testimony and medical records, we find the jury abused its discretion in awarding only $7,000.00 for pain, | ^suffering, and anguish from the date of the accident to the time of trial. Thus, we must increase the award to the lowest award that was within the jury’s discretion.

In Hopstetter v. Nichols, 98-185 (La.App. 5 Cir. 7/28/98), 716 So.2d 458, writ denied, 98-2288 (La.11/13/98), 731 So.2d 263, the plaintiff suffered injuries to her neck in an auto accident. Diagnostic testing showed a degenerative condition with a possible disc herniation. This court increased the jury’s $5,000.00 general damage award to $30,000.00, finding that this was the lowest reasonable award for this plaintiff who suffered , an injury that had not resolved two years after the accident and which will require future treatment for pain management.

In Sutton v. Oncale 99-967 (La.App. 5 Cir. 3/29/00), 765 So.2d 1072, this court found that the plaintiff did suffer an injury to her disc, however she did not require surgery. While affirming the $40,000.00 general damage award and acknowledging that this award was low, this court stated that plaintiff did not “require significant medical treatment, indicating that her pain was not severe.” Id. At 1081.

None of the physicians who testified on plaintiffs behalf discussed future surgery. While Ms. Cox testified that she continues to experience pain and discomfort, there was no testimony that the pain was debilitating or that the pain prohibited her from participating in any activities. Based on our review of the effect of this injury on this particular plaintiff and our review of the jurisprudence we find that $30,000.00 is the lowest general damage award that is within the jury’s discretion.

CONCLUSION:

For the foregoing reasons, the judgment of the trial court is amended to increase the damage award for physical and mental pain, suffering, and anguish lipfrom the date of the accident to the date of trial to $30,000.00. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED AS AMENDED. REHEARING GRANTED

Rehearing is granted for the limited purposes of assessing costs of the appeal against the defendant/appellee, Allstate Insurance Company.


author: LSUSAN M. CHEHARDY, Judge.

text:
    Jeanell R. Bordelon, Wife of/and Troy J. BORDELON v. AVONDALE INDUSTRIES, INC. and Dr. Joseph Mabey.
    No. 03-CA-228.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Rehearing Denied June 23, 2003.
    Rockne L. Moseley, Moseley & Associates, PLC, New Orleans, LA, for Plaintiffs-Appellants, Jeanell R. Bordelon, Wife of/and Troy J. Bordelon.
    Richard S. Vale, Appeal Counsel, William C. Cruse, Christopher K. Lemieux, Pamela F. Noya, Blue Williams, L.L.P., Metairie, LA, for Defendant-Appellee, Avondale Industries, Inc.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   LSUSAN M. CHEHARDY, Judge.

The plaintiffs appeal a summary judgment dismissing Avondale Industries, Inc. from their suit. We affirm.

On October 26, 1997 Troy J. Bordelon was employed at Avondale as an industrial power electrician when he fell and was injured on the job. He was paid compensation pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901, et seq. On October 23, 1998 Mr. Bordelon and his wife, Jeanell R. Bordelon, filed a tort suit against Avondale and Dr. Joseph Mabey, asserting the defendants failed to disclose to the plaintiff a back condition (revealed in x-rays taken during his pre-employment physical) that predisposed him to severe injury as a result of the type of work he was hired to perform at Avondale.

Troy Bordelon began the application process to become an Avondale employee on November 9, 1988. As part of that process he was required to undergo a pre-employment physical examination by a doctor of the company’s choosing. Mr. Bordelon’s physical was begun by Dr. Craig Peterson on November 10, 1988, but was concluded by Dr. Mabey on November 11, 1988. X-rays of Mr. | ¡¡Bordelon's spine taken during the examination revealed that he suffers from spondylolisthesis and spondylolysis. Dr. Peterson marked the medical record card “Reject,” with a notation regarding the spondylolisthesis. However, when Dr. Mabey concluded the examination the following day, he sent Mr. Bordelon to the personnel department for hiring. Mr. Bordelon alleges he was not informed of the x-ray results showing his back condition or that his card had been marked “reject.”

Mr. Bordelon left Avondale in 1992, but was re-employed in 1993. Once again he underwent a pre-employment physical, this time conducted entirely by Dr. Mabey, but the plaintiffs assert that Dr. Mabey again failed to advise Mr. Bordelon of his back condition. In contrast, Dr. Mabey testified in deposition that he specifically recalled discussing the back conditions with Mr. Bordelon.

The plaintiffs allege that if Mr. Bordelon had been made aware of his condition he would not have participated in the strenuous manual labor of his Avondale job or he would not have pursued employment with Avondale as an industrial power electrician. (Mr. Bordelon does not allege his fall was caused by his pre-existing spondy-lolisthesis and spondylolysis.)

Avondale filed a motion for summary judgment, citing the exclusive remedy provision of the LHWCA, 33 U.S.C. § 905(a). In oral reasons for judgment, the trial court found that, “other than perhaps at best gross negligence,” there was no evidence anyone intended to harm Mr. Borde-lon. The court also found that Mr. LBordelon was an employee of Avondale at the time of the alleged tort. Accordingly, the court granted summary judgment in favor of Avondale.

The plaintiffs have appealed. On appeal they contend the trial court erred in finding that Mr. Bordelon was an employee of Avondale during his pre-employment physicals, in declaring that Avondale did not commit an intentional tort upon Mr. Bordelon in accordance with the standards of Mefferd v. Avondale Industries, Inc., and in finding that Dr. Joseph Mabey was an independent contractor for Avondale.

The plaintiffs argue that the exclusive remedy provision is not applicable, first, because Mr. Bordelon was not an employee when the pre-employment physical was conducted; second, because Avon-dale is liable as employer of Dr. Mabey rather than as employer of Mr. Bordelon. They contend that Dr. Mabey had a continuing duty to inform Mr. Bordelon of his dangerous back condition, that Avondale, as Mabey’s employer, is hable in respondeat superior for Mabey’s failure to meet his obligation, and that Avondale’s duty is independent of Dr. Mabey’s duty as a physician. Plaintiffs argue there are genuine issues of material fact in the following respects: whether Mr. Bordelon’s subsequent hiring by Avondale “relates back” to the time of his pre-employment physical; whether Avondale committed an intentional tort; whether the facts in the Mefferd case are identical and the 'Mefferd ruling must be applied; and whether Dr. Mabey was an employee of Avondale.

| sAvondale argues it had no separate duty to Mr. Bordelon to advise him of his back condition. Alternatively, if it did have such a duty, Avondale argues the cause of action in tort is barred by the exclusive remedy provision. Avondale asserts it is irrelevant if the tort — the failure to disclose information — occurred prior to Mr. Bordelon’s employment by Avondale, because the trigger point for compensation and the exclusive remedy doctrine is when he later got hurt on the job.

Avondale argues further that Dr. Mabey was an independent contractor, so respon-deat superior does not apply. Avondale also cites Mr. Bordelon’s deposition testimony, in which he responded negatively to questioning about whether he thought anyone at Avondale intended to injure him or to put him in positions in which it was certain he would get hurt.

The plaintiffs cite Mefferd v. Avondale Industries, Inc., supra, as being on point with this case. The entire decision follows:

Appellants-plaintiffs Mr. and Mrs. Glenn Mefferd filed suit in the district court against Avondale Industries, Inc. because Mr. Mefferd’s sensitive back condition, known to Avondale because of a preemployment physical, was not revealed to him. Mr. Mefferd was hurt lifting a heavy object.
The Mefferds contend that they stated a cause of action under intentional tort. They also allege that the negligence of Avondale predated Mr. Mefferd’s actual employment. Nonetheless, Avondale’s exception of no cause of action was maintained. This appeal ensued.
We reverse, being of the opinion that the holding in Dornak v. Lafayette General Hospital, 399 So.2d 168 creates enough of an issue in the Mefferd’s case to require a trial. If a prospective employer requires a preemployment physical, a duty is owed to the prospective employee, who is eventually hired, to disclose a potentially harmful medical condition.
We remand to the 24th Judicial District Court for further proceedings with Avondale to bear costs of this appeal.

Ib Dornak v. Lafayette General Hospital, 399 So.2d 168 (La.1981), cited in Mefferd, supra, was a personal injury suit in which the plaintiff sued her employer, a hospital, for negligence in failing to inform her that x-rays taken at her pre-employment physical disclosed a tubercular condition. The defendants filed an exception of no cause of action asserting that they owed no legal duty to plaintiff under the circumstances to disclose her physical condition to her. Our supreme court reversed the lower courts granting of the exception of no cause of action, as follows in pertinent part:

We recognize at the outset that an employer generally owes no duty to a prospective employee to ascertain whether he or she is physically fit for the job sought. Nonetheless, where a prospective employer assumes such an undertaking, many jurisdictions have found the employer liable for injuries to employees resulting therefrom if the employer performs it negligently. [Citations omitted.]
We conclude in the instant case that under the general principles of tort liability enunciated in La.Civ.Code arts. 2315 and 2316, defendants owed a duty to plaintiff to disclose the tubercular condition discovered during her pre-em-ployment physical examination.... While we do not consider that the hospital had any obligation to give plaintiff a pre-employment physical examination, once it undertook to do so and subsequently employed her, she was entitled to and did rely upon the expectation that she would be told of any dangerous condition actually disclosed by that examination, especially considering the fact that she was employed by the hospital to perform duties placing her in contact with co-employees and hospital patients.
In sum, we conclude that defendants owed a duty to plaintiff to protect her against the particular risk which allegedly caused injury to her. The duty owed was to inform plaintiff of her tubercular condition discovered during a pre-employment physical examination.

399 So.2d at 170-171.

Both Domak and Mefferd differ from the case before us, however, because they were before the appellate courts on review of exceptions of no cause of action 17rather than motions for summary judgment. Further, in Domak the plaintiff suffered from a disease that clearly was not sustained in the course and scope of her employment. Similarly, in Mefferd there is no indication that the plaintiffs injury from lifting a heavy object occurred in the course and scope of his employment. It cannot be ascertained from those opinions that either plaintiff had recovered under either workers’ compensation or the LHWCA and the defense never asserted the exclusive remedy defense. Hence, we are unable to apply either of these cases as providing exceptions to the exclusive remedy rule.

We find no cases that permitted an intentional act exception to the exclusive remedy provision of 33 U.S.C. § 905(a): Although some cases refer to the possibility that such an exception could be made under appropriate facts, we find none that actually did so.

See, e.g., Roy ex rel. Charlot v. Bethlehem Steel Corp., 838 F.Supp. 312 (E.D.Tex.1993); Johnson v. Odeco Oil Gas Co., 679 F.Supp. 604, 606-607 (E.D.La.1987), aff'd 864 F.2d 40 (5th Cir.1989) (willful and wanton misconduct not sufficient to make exception applicable); Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 316 (D.Me.1981) (Nothing short of a specific intent to injure the employee falls outside of the scope of the [LHWCA].); See also, Gauthe v. Asbestos Corp., 97-941 (La.App. 5 Cir. 1/27/98), 708 So.2d 761, writ denied, 98-450 (La.11/19/99), 749 So.2d 664; Taylor v. Transocean Terminal Operators, Inc., 00-0604 (La.App. 4 Cir 3/14/01), 785 So.2d 860.

Nor do we find error in the trial court’s determination that Avondale cannot be hable under respondeat superior for acts of Dr. Mabey. There is -no evidence that Avondale exercised any control or direction over Dr. Mabey’s professional | ¡judgment and practice of medicine. Further, the exclusivity provisions of the LHWCA do not permit recovery against the employer under a dual-capacity theory except under 33 U.S.C. § 905(b), where the employer is also the vessel owner.

For the foregoing reasons, we find no basis to reverse the summary judgment in favor of Avondale. The judgment is affirmed. Costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . Spondylolisthesis is a spine disorder in which a direct blow, a fall from a height, or a sudden twisting can result in the fracture of one or more vertebrae, according to the appellant’s brief, citing The American Medical Association Encyclopedia of Medicine, Charles B. dayman, M.D., Medical Editor.

      . 33 U.S.C. § 905(a) provides in pertinent part, "The liability of an employer prescribed in section 4 [33 U.S.C. § 904] shall be exclusive and in place of all other liability of such employer to the employee.”

      . The plaintiffs dismissed their claims against Dr. Mabey as premature in July 1999, but after completing medical review panel proceedings pursuant to the Medical Malpractice Act (La.R.S. 40:1299.47), they amended and supplemented their petition to re-assert the claims against Dr. Mabey. However, his liability is not before us on this appeal.

      . The trial court designated the judgment for appeal pursuant to La.C.C.P. art. 1915(B)(1). However, the judgment is appealable pursuant to La.C.C.P. art. 1915(A)(1), because as a judgment that dismissed a party it is final and appealable without the necessity for designation under Section (B).

      . 562 So.2d 21 (La.App. 5 Cir. 1990), wrif denied 566 So.2d 987 (La.1990).

      . Taylor contains a good discussion of the jurisprudence analyzing the LHWCA’s potential for an intentional act exception.


author: SMITH, P.J.,

text:
    Dan H. SINGLEY, Jr. v. Jane K. SINGLEY.
    No. 1999-CT-00754-SCT.
    Supreme Court of Mississippi.
    Oct. 17, 2002.
    Rehearing Denied June 12, 2003.

      Henry Palmer, Meridian, attorney for appellant.
    Mark A. Chinn, Jackson, William D. Ketner, Jr., attorneys for appellee.
   ON WRIT OF CERTIORARI

SMITH, P.J.,

for the Court.

¶ 1. The Lauderdale County Chancery Court granted Dan H. Singley (Hank) a divorce from his wife, Jane K. Singley (Jane), on the ground of uncondoned adultery. The chancellor equitably divided the marital estate and awarded Jane rehabilitative alimony. Hank appealed, and the Court of Appeals affirmed as to issues concerning equitable distribution. The Court of Appeals also held: (1) goodwill could be incorporated into the business valuation of Hank’s dental practice; (2) the evidence supported an almost even division of marital property; (3) Hank’s $70,000 inheritance was commingled and became marital property; and (4) Jane could not be awarded temporary rehabilitative alimony, as the issue was not properly before the court because the pre-trial order did not include the issue of alimony. Hank filed a motion for rehearing with the Court of Appeals, which was denied. Hank then filed a petition for writ of certiorari with this Court, which we granted. Hank asserts the following issues for review:

I. SHOULD MORE WEIGHT BE GIVEN TO MARITAL FAULT IN APPLYING THE FERGUSON FACTORS, PURSUANT TO CARROW I AND CARROW II?
II. SHOULD “GOOD WILL” BE USED IN THE VALUATION OF A SOLE PROPRIETORSHIP FOR PURPOSES OF EQUITABLE DISTRIBUTION?
III. WAS HANK’S INHERITED MONEY COMMINGLED, THUS A MARITAL ASSET FOR THE PURPOSE OF EQUITABLE DISTRIBUTION?

¶ 2. In her response to Hank’s petition for certiorari, Jane asserts an additional issue for review:

IV. WAS THE COURT OF APPEALS INCORRECT IN REVERSING AND RENDERING THE CHANCERY COURT’S DETERMINATION THAT IT COULD AMEND ITS OWN PRETRIAL ORDER?

¶ 3. We hold that the Court of Appeals was correct in reversing the rehabilitative alimony awarded to Jane. We reverse and remand the issue of the $70,000 inheritance Hank received from his mother. We also reverse and remand the issue of marital fault. The chancellor should reconsider the $70,000 and marital fault when determining equitable distribution of the marital property on remand. Regarding the first impression issue of whether goodwill can be incorporated into the business valuation of Hank’s dental practice for consideration by the chancellor in determining equitable distribution of property in a divorce action, we hold that it can not and we reverse and render.

FACTS

¶ 4. The following recitation of facts is taken from the Court of Appeals’ decision:

¶ 2. Hank and Jane Singley were married for twenty-three years and had one son who, at the time of their divorce, was in college on scholarship. Jane admitted to having numerous affairs during her marriage, and Hank was granted a divorce on the ground of uncondoned adultery. He appeals, however, the chancellor’s decisions regarding the division of the marital estate, his $70,000 contribution toward the purchase of the marital home which was his inheritance from his mother’s estate, and the court’s value of Hank’s dental practice. Further, Hank asserts that the “Court failed to take into consideration the Ferguson principles of equitable distribution by failing to appropriately consider the costs and tax effect of money and the ability of Dr. Singley to comply with the equitable division ruling,” that is, either liquidate assets which would involve tax consequences or borrow money which would involve interest expenses. In addition, Hank challenges the chancellor’s award of temporary rehabilitative alimony. Finally, he contests several eviden-tiary rulings made by the chancellor.
¶ 3. In her opinion and judgment, the chancellor awarded Jane $1,500 a month in periodic rehabilitative alimony for a period of one year. The chancellor divided the marital estate giving each party fifty percent. The chancellor appointed an expert to valúate^ Hank’s dental practice. Additionally, the chancellor considered the testimony of Chuck Rae, Hank’s accountant. However, because the court-appointed expert had expertise specific to the valuation of businesses, while Hank’s accountant did not, the chancellor chose to accept the court-appointed expert’s valuation of Hank’s dental practice at $145,000. It is from these decisions of the chancellor that Hank appeals.

Singley v. Singley, 2000 WL 1387961, *1 (Miss.Ct.App. Sept.26, 2000).

STANDARD OF REVIEW

¶ 5. “This Court will not interfere with a chancellor’s findings of fact unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied. However, we review the chancellor’s interpretation and application of the law de novo.” Marshall v. Gipson Steel, Inc., 806 So.2d 266, 270 (Miss.2002).

DISCUSSION

I. WHETHER MORE WEIGHT SHOULD BE GIVEN TO MARITAL FAULT IN APPLYING THE FERGUSON FACTORS, PURSUANT TO CARROW I AND CAR-ROW II?

¶ 6. Hank argues that the chancellor erred by not giving more weight to the fact that Jane admittedly had numerous affairs during their twenty-three year marriage. Hank further argues that Jane should have been penalized and should not have received 50% of the marital assets as. the chancellor so ordered. Hank argues that one of the principles of Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), is that marital misconduct or fault as a ground for divorce is relevant to equitable distribution if it impacted the harmony and stability of the marriage.

¶ 7. Jane responds that Hank relies solely on his own testimony and minimizes or ignores the contrary testimony that favors her. In fact, Hank does rely on other testimony, particularly the testimony of Jane’s mother. As we have often stated: “This Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.” Ezell v. Williams, 724 So.2d 396, 397 (Miss.1998). “The word ‘manifest,’ as defined in this context, means ‘unmistakable, clear, plain, or indisputable.’” Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995). “Where evidence is contradictory, this Court ‘generally must affirm.’ ” Boatner v. State, 754 So.2d 1184, 1191-92 (Miss.2000).

¶8. Hank claims the chancellor’s decision is at odds with Carrow I and Carrow II. In Carrow I, 642 So.2d at 903, Jean Carrow was granted a divorce from Jimmie Carrow, her husband of twenty-nine years. The chancellor determined that Jean was not entitled to equitable distribution. Id. at 904. This Court reversed and remanded, stating that the chancellor placed undue emphasis on Jean’s three affairs that occurred after the couple were separated and failed to make findings on the record as to how these affairs contributed to the deterioration, if any, of the marriage. Id. at 905. This Court stated:

It is difficult to adjust conventional values of morality when weighing marital misconduct for purposes of a just division of marital property. However, marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship. See Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994). Thus, the chancellor erred in holding that Jean’s adulterous conduct precluded her from being entitled to any form of equitable distribution of the property upon divorce. In addition, this case must also be considered in light of this Court’s recent case of Ferguson, which deals with the issue of equitable distribution and also provides guidelines for the division of marital property, as well as, Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994), which defines “marital assets as any and all property acquired or accumulated during the marriage.”

642 So.2d at 904-05. Citing Hemsley, we further stated:

We define marital property for the purpose of divorce as being any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. We assume for divorce purposes that the contributions and efforts of the marital partners whether economic, domestic or otherwise are of equal value.

Carrow I, 642 So.2d at 906. We then reversed and remanded with instructions for the chancellor to conduct equitable distribution, applying the Ferguson factors.

¶ 9. In Carrow II, 741 So.2d 200 (Miss.1999), Jimmie appealed the subsequent equitable distribution of the couple’s assets by the chancellor. This Court affirmed, stating:

In addition to contributing her employment income, Jean raised the parties’ child, and handled most of the household duties and expenses, which allowed Jimmie to use more of his time and money for business investments. The court determined Jimmie’s contribution to the accumulation of the property included his income from employment and rental income, as well as his restoration of the Corvettes in the collection. There was no finding by the court as to any tax consequences or emotional value in reference to the distribution of the marital assets.

Id. at 203. Concerning the adultery, we stated:

The chancellor correctly found the affairs to be just one factor for the court to consider in reference to any burden that may have been placed on the stability and harmony of the marital and family relationship. The chancellor further found that Jean greatly contributed to the stability and harmony of the parties’ marital and family relationship by working full-time, taking care of the family’s needs, taking care of Jimmie, and raising the parties’ child. It is apparent that the chancellor considered the adultery, but found that it did not burden the stability and harmony of the Carrow family relationship. That finding is not manifestly erroneous.

Id. at 204.

¶ 10. In the case sub judice, Ferguson factor (l)(b), (“Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage”) is the factor Hank argues weighs heavily in his favor. We agree with Hank. Contributions and fault should be considered by the chancellor in determining equitable distribution of a marital estate. Jane’s admissions concerning eight incidents of adultery all of which occurred during the last fifteen years of the marriage resulting in her being physically absent from her home and away from her son and her husband for significant periods of time during these escapades clearly reflect that such marital misconduct was relevant to the chancellor’s consideration of equitable distribution because it impacted upon the harmony and stability of the marriage. While it is only one of the Ferguson factors to be considered, when the facts of this case are examined, the overwhelming nature of Jane’s involvement in numerous affairs and the resulting strain and conflict created in the marriage cannot be ignored or lessened. The testimony of Jane’s mother is indeed revealing as she knew nothing of Jane’s numerous affairs. Yet, she testified that Jane had been gone from Hank and Dan, both physically and emotionally, for about a year before the divorce action was initiated. Hank’s claim that the affairs affected the stability and harmony of the marriage is substantially supported by the testimony.

¶ 11. In Ferguson, we said, “it must be remembered, the goal in a divorce case is to do equity.” Ferguson, 639 So.2d at 934. Equity envisions equal partners pulling equally together during life’s good times as well as during times of trials and tribulations. Evidence of such togetherness would warrant substantial participation if not equal distribution of property assets by a chancellor when applying the principle of equitable distribution.

¶ 12. Here, the chancellor considered, on the record, the Ferguson factors and decided the marital assets should be divided 50/50. The chancellor found that Jane was physically and emotionally gone from Hank and their son because of the numerous adulterous relationships. She also found that Jane was extravagant. Nevertheless, the chancellor awarded Jane 50% of the marital assets. Considering the significant and compelling facts of this case, the division of the assets appears to place minimal weight upon the numerous incidents of Jane’s adultery and its effect on the marriage and also ignores principles of equity.

¶ 13. We find the Court of Appeals’ decision is in conflict with Carrow I and Carrow II. In Carrow II, in upholding the chancellor we noted that there was no burden created by the adulterous relationships of Betty Jean upon the stability and harmony of the Carrow family relationship. 741 So.2d at 204. Also, we note that in Carrow I, Betty Jean’s three affairs occurred after the separation of the parties, thus, there was no finding by the chancellor as to how these affairs contributed to the deterioration, if any, of the marriage. Carrow I, 642 So.2d at 905. In the case sub judice however, Jane’s numerous affairs significantly impacted and burdened the stability and harmony of the marriage, and we again note that it was Hank who was granted the divorce on grounds of adultery because of Jane’s numerous affairs. Although a chancellor is generally given great deference as to findings of fact and conclusions of law, here, considering the overwhelming nature of the evidence adduced by Hank, we conclude that the chancellor’s decision was unsupported by substantial evidence. Thus, the chancellor in applying the law to these facts was manifestly wrong, abused her discretion, and failed to do equity. As such, we reverse and remand this issue for rehearing.

II. SHOULD “GOOD WILL” BE USED IN THE EVALUATION OF A SOLE PROPRIETORSHIP FOR PURPOSES OF EQUITABLE DISTRIBUTION?

¶ 14. Hank next argues that including goodwill in the valuation of a sole proprietorship business used for purposes of equitable distribution during divorce proceeding is not the better reasoned approach and that this Court should address to this issue. Jane responds that the expert who evaluated Hank’s dental business was neutral and court-appointed. Jane argues that this Court has previously recognized that it was appropriate to include goodwill in the fair market value of a professional business, although not for the purposes of equitable distribution. The Court of Appeals, however, noted that its holding that goodwill could be used in the valuation of a business when determining equitable distribution in a domestic setting is one of first impression. The Court of Appeals also properly stated:

¶ 21. The issue of whether “goodwill” is to be used in the valuation of a business for the purpose of determining values for the division of property in divorce cases is a hotly contested issue across the nation. Numerous law journal articles and papers have been written on the subject. And, each jurisdiction having addressed the issue has placed its own unique spin on how goodwill should be treated.

Singley, 2000 WL 1287961 at 7-8.

¶ 15. We note that the Court of Appeals is correct that the issue is one of first impression and also correct regarding the disputed holdings of the state jurisdictions across the country. Various jurisdictions have held that goodwill is an aspect of income potential and should be considered marital property used in arriving at a value of a business while other states have held that it should not be considered. In the case sub judice, the court-appointed expert, James Koerber, determined the fair market value of Hank’s dental practice using an asset-based approach, which included intangible assets such as good will. Koerber utilized the definition of “fair market value” taken from a 1959 IRS ruling, as follows:

The price at which property would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, bother [sic, both] parties having reasonable knowledge of the relevant facts.

Koerber valued the cash, accounts receivable, inventory property/equipment, and goodwill which totaled $148,614. Liabilities were fixed at $80,992. Koerber determined that the practice could sell for $145,000. The chancellor accepted this valuation. More revealing here is what did not occur at trial. Hank’s expert, Chuck Rae, was not allowed to state his opinion concerning the value of Hank’s dental practice and office building. The denial of this testimony is contrary to the intent of Miss. R. Evid. 702. Hank could have even valued his own practice had he so desired. The chancellor should have allowed Rae’s testimony, and she was then free to accept or reject that testimony. We find that the chancellor erred in not allowing Rae to give his opinion as to the value of Hank’s dental practice.

¶ 16. The issue of goodwill in the context of distribution in a divorce action is indeed one of first impression. Although this Court has previously noted that goodwill was used by an expert appraiser in establishing the fair market value of a professional business, this Court did not specifically address the issue directly or elaborate thereon. The Court simply found no error by the chancellor in accepting the expert’s valuation of the business and the case was reversed for other reasons. In re Dissolution of Jackson Arthritis Clinic & Osteoporosis Ctr., 755 So.2d 418, 422 (Miss.2000). However, we note that the case is distinguished from the case at bar as it is instructive only regarding valuation for the purpose of dividing a corporation between two business professionals and not in the context of marital property division in a domestic case. More recently by footnote in Mace v. Mace, 818 So.2d 1130, 1133 n. 3 (Miss. 2002), this Court stated that “the opinions of other jurisdictions are split regarding whether goodwill may be considered in valuing a professional practice and, if so, how good will is to be calculated.” We also noted that the issue was not before us, thus we declined to address it. Id. at 1136.

¶ 17. We disagree with the Court of Appeals that goodwill may be included in the valuation of a business when the issue of that valuation concerns distribution in a divorce action. We join the jurisdictions that adhere to the principle that goodwill should not be used in determining the fair market value of a business, subject to equitable division in divorce cases. Many other states have previously adopted this rule: Christians v. Christians, 732 So.2d 47 (Fla.Dist.Ct.App.1999) (holding failure to assign goodwill value to business was not erroneous where any goodwill rested solely on husband’s well known reputation and abilities and his continued existence and involvement in the business); In re Marriage of Zells, 143 Ill.2d 251, 157 Ill.Dec. 480, 572 N.E.2d 944 (1991) (goodwill in professional practice is not marital property, but is an aspect of income potential to be considered in maintenance and support); In re Marriage of Claydon, 306 Ill.App.3d 895, 240 Ill.Dec. 144, 715 N.E.2d 1201 (1999) (noting that professional goodwill is an aspect of income potential and should be reflected in maintenance awards otherwise additional consideration of goodwill is duplicative and improper); Yoon v. Yoon, 711 N.E.2d 1265, 1269 (Ind.1999) (stating that Indiana law adheres to the rule that goodwill based on the personal attributes of the individual is not properly part of the marital estate); Powell v. Powell, 231 Kan. 456, 648 P.2d 218 (1982) (goodwill in medical practice is not an asset subject to division in dissolution); Nail v. Nail, 486 S.W.2d 761 (Tex.1972) (goodwill in a doctor’s practice is not a divisible asset because it does not possess value or constitute an asset separate and apart from the doctor’s person or ability to practice the profession); Holbrook v. Holbrook, 103 Wis.2d 327, 309 N.W.2d 343 (1981) (marital estate does not include goodwill of husband’s partnership interest in law firm). We conclude that these states have adopted the better view.

¶ 18. The term goodwill as used in determining valuation of a business for equitable distribution in a domestic matter is a rather nebulous term clearly illustrating the difficulty confronting experts in arriving at a fair, proper valuation. Goodwill within a business depends on the continued presence of the particular professional individual as a personal asset and any value that may attach to that business as a result of that person’s presence. Thus, it is a value that exceeds the value of the physical building housing the business and the fixtures within the business. It becomes increasingly difficult for experts to place a value on goodwill because it is such a nebulous term subject to change on a moment’s notice due to many various factors which may suddenly occur, i.e., a lawsuit filed against the individual or the death and/or serious illness of the individual concerned preventing that person from continuing to participate in the business. It is also difficult to attribute the goodwill of the individual personally to the business. The difficulty is resolved however when we recognize that goodwill is simply not property; thus it cannot be deemed a divisible marital asset in a divorce action. We recognize however that regardless of what method an expert might choose to arrive at the value of a business, the bottom line is one must arrive at the “fair market value” or that price at which property would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, both parties having reasonable knowledge of the relevant facts. Consequently, today we join those sister states who prohibit goodwill from inclusion in valuing a business for distribution as marital property in a domestic case. Accordingly, we reverse and render the chancellor as to the inclusion of goodwill in the value of Hank’s business.

III. WAS HANK’S INHERITED MONEY COMMINGLED, THUS A MARITAL ASSET FOR THE PURPOSE OF EQUITABLE DISTRIBUTION?

¶ 19. Hanks final issue concerns the $70,000 he contributed toward the purchase of the marital home from money he had inherited from his mother’s estate. Hank claims that he “placed this [money] into the marital home to reduce the family’s obligation of interest expense through additional mortgage.” Hank claims he was unaware of his wife’s affairs and would not have placed the $70,000 in the mortgage if he had known of the affairs. Hank argues that the chancellor erred by holding that this money had been commingled and was thus marital property.

¶ 20. Jane responds that while the marital home was acquired, in part, with proceeds of Hank’s inheritance, substantial marital funds were also used to acquire the home. Jane further asserts that recent cases from this Court and the Court of Appeals support the chancellor’s decision.

¶ 21. In Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995), this Court stated: “Non-marital assets may be converted to marital assets if they are commingled with marital assets or used for familial purposes.” Hank claims he placed the money in the “marital home,” in order to reduce the “family’s” obligation. However, it appears from the record that although the chancellor correctly determined that the $70,000 inheritance was co-mingled and became a part of the marital estate, she apparently failed to realize that she could adjust the Ferguson distribution because of the factors surrounding the source and application of the $70,000. Bullock v. Bullock, 699 So.2d 1205 (Miss.1997). In Bullock, the Court stated, “In making an equitable division of marital property, however, the chancellor is not required to divide the property equally.” Id. at 1210-1211 citing Trovato v. Trovato, 649 So.2d 815, 817-18 (Miss.1995); Davis v. Davis, 638 So.2d 1288, 1292 (Miss.1994); Dudley v. Light, 586 So.2d 155, 161 (Miss.1991); Brown v. Brown, 574 So.2d 688, 691 (Miss.1990). This Court has previously considered the issue of equitable division of marital property where sizeable funds given by one spouse’s parents were used as a down payment to purchase a jointly owned home for both parties. There, the chancellor gave sole ownership of the home to the wife who had the received the funds initially from her parents. The Court, in holding the funds were comingled stated, “The fact that Mary’s parents gave her a significant portion of the down payment is certainly one of the Ferguson factors that the chancellor should have considered when he divided the property, but it is not the only factor to be considered.” Henderson v. Henderson, 703 So.2d 262, 265 (Miss.1997). This same principle was noted when the chancellor ultimately held in Carrow II that Betty Jean Carrow should be entitled to some interest, though not necessarily half and this Court upheld that decision. Here, while Jane may be entitled to some interest in the $70,000 comingled funds, she is not necessarily entitled to half. Accordingly, we reverse and remand for the chancellor to reconsider this amount when she applies the Ferguson factors in equitable distribution.

IV. WAS THE COURT OF APPEALS INCORRECT IN REVERSING AND RENDERING THE CHANCERY COURT’S DETERMINATION THAT IT COULD AMEND ITS OWN PRETRIAL ORDER?

¶ 22. In her response to Hank’s petition for certiorari, Jane claims the Court of Appeals erred in reversing and rendering the award of rehabilitative alimony. Jane argues that she had specifically requested both periodic and lump-sum alimony in her answer and counterclaim. Jane further argues that the Mississippi Rules of Civil Procedure supports her argument. Pursuant to Rule 15(b):

(b) Amendment to Conform to the Evidence. When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in the maintaining of his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The court is to be liberal in granting permission to amend when justice so requires.

M.R.C.P. 15(b) (emphasis added). Significantly, the emphasized sentence appears only in the Mississippi Rules and not in the Federal Rules of Civil Procedure.

¶23. In reversing and rendering the chancellor’s award of temporary rehabilitative alimony, the Court of Appeals relied on Rule 16, which reads as follows:

In any action the court may, on the motion of any party, and shall on the motion of all parties to the cause, direct and require the attorneys for the parties to appear before it at least twenty days before the case is set for trial for a conference to consider and determine:
(a) The possibility of settlement of the action;
(b) the simplification of the issues;
(I) such other matters as may aid in the disposition of the action.
The court may enter an order reciting the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any other matters considered, and limiting issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

M.R.C.P. 16 (emphasis added). The Court of Appeals cited Barvick v. Cisneros, 953 F.Supp. 341, 344 (D.Kan.1997) as follows: “Interpretation of the pre-trial order and whether to permit modifications to the order to avoid manifest injustice are decisions within the sound discretion of the trial judge.” Singley, 2000 WL 1387961 at *9.

¶ 24. At trial, the chancellor allowed Jane to put forward evidence of her need for alimony, in order “to be fair to both parties and to do equity.” Hank argued prejudice and surprise that alimony was a contested issue at trial as there had been no mention of alimony in the pre-trial statement which expressly stated the issues to be determined at trial as to grounds for the divorce, assets to be included, and what portion Jane was entitled to receive, if any. Accordingly, Hank’s counsel argued that he was surprised and thus unprepared to defend the issue of alimony at trial.

¶ 25. The Court of Appeals concluded that the chancellor abused her discretion in determining that the issue of alimony was a matter properly before the Court. We agree with the Court of Appeals. The pre-trial statement approved by order of the chancellor controls. It is clear and concise, easily understood and substantially complies with M.R.C.P. 16. We hold that the chancellor cannot modify the statement unless it is done by mutual agreement with the parties as was initially done, or the chancellor finds manifest injustice, neither of which occurred. The Court of Appeals is affirmed on this issue.

CONCLUSION

¶26. We affirm the Court of Appeals on the issue of denial of rehabilitative alimony. We reverse and render on the issue of goodwill. The chancellor on remand must allow expert testimony from Dan’s appraiser regarding the value of the dental practice. We reverse and remand on the issue of the $70,000 inheritance Hank received from his mother. We reverse and remand on the issue of marital fault. The chancellor should reconsider the $70,000 and Jane’s marital fault when applying the Ferguson distribution factors regarding the division of marital property on remand in order that equity be done. We remand for further proceedings in accordance with this opinion.

¶ 27. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY AND CARLSON, JJ„ CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Carrow v. Carrow, 642 So.2d 901 (Miss.1994)(Carrow I); Carrow v. Carrow, 741 So.2d 200 (Miss.1999)(CarrowII).

      . We note that the Yoon court distinguished between "business enterprise goodwill” and "personal goodwill." However, the parties did not mention such terms, much less distinguish them in the record of this proceeding, thus this issue is not before the Court.