author: | .DENNIS R. BAGNERIS, SR., Judge.

text:
    John H. ALPHONSO v. BRIDGE TERMINAL TRANSPORT.
    No. 2002-CA-2768.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2003.

      Davy P. Laborde, Jr., Law Firm of Davy P. Laborde, New Orleans, LA, for Plaintiff/Appellant.
    Philip J. Borne, Leslie E. Hodge, Chris-tovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY).
   | .DENNIS R. BAGNERIS, SR., Judge.

This disputed Workers’ Compensation claim was filed after the employer discontinued benefits. The Workers’ Compensation Judge (“WCJ”) found in favor of the employer, Bridge Terminal Transport, and against the employee, John H. Alphonso. Specifically, the WCJ denied Mr. Alphonso’s benefits and found that Mr. Alphonso forfeited his rights to workers’ compensation benefits under La. R.S. 23:1208. For the reasons ascribed below, we affirm the WCJ’s finding that Mr. Alphonso failed to prove that he continued to be disabled as a result of his job-related injury; we reverse the WCJ’s finding that Mr. Alphonso forfeited his rights to workers’ compensation under La. R.S. 23:1208; and we remand the case for the WCJ to determine whether Mr. Alphonso is capable of returning to his pre-injury employment and whether he is entitled to rehabilitation services. In all other respects, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Mr. Alphonso was employed as a truck driver for Bridge Terminal Transport (“BTT”). On March 14, 2000, Mr. Alphonso allegedly sustained injuries to his back and neck when he was involved in an accident with another 18-wheeler.

IsBTT paid medical benefits and weekly wage benefits from March 2000, through August 8, 2000 at a weekly rate of $384.00. Benefits were reinstated on September 6, 2000, and continued through March 6, 2001. Mr. Alphonso’s benefits were terminated in March 2001 based on video surveillance, which purportedly illustrated that Mr. Alphonso was more active than what he was leading his doctors to believe. Mr. Alphonso filed this disputed claim on August 20, 2001.

On April 19, 2002, a trial was held at which only Plaintiff testified. The admissibility of all other evidence was stipulated to and submitted in either written or video form. Based on the testimony and evidence introduced, the WCJ found that: (1) Mr. Alphonso failed to prove that he continued to be disabled as a result of his March 14, 2000 job-related injury; (2) the tumor identified on Mr. Alphonso’s spine is not a result of his injury and neither does it, nor his injury of March 14, 2000, prevent him from engaging in employment; (3) BTT’s decision to terminate benefits in March 2001 was proper; and (4) Mr. Alphonso’s conduct, acts and representations violated La. R.S. 23:1208 and has forfeited his right to workers’ compensation benefits. On July 31, 2002, Mr. Alphonso filed a motion for a new trial, which was denied without a hearing. Mr. Alphonso now appeals this final judgment.

On appeal, Mr. Alphonso alleges four assignments of error. Specifically, he alleges the WCJ erred by: (i) finding that he was not physically disabled for his duties as the driver of an 18-wheeler; (ii) finding that he committed fraudulent statements in applying for his compensation benefits; (Hi) failing to find that BTT was unreasonable, arbitrary and capricious for terminating his weekly benefits and medical benefits; and (iv) denying his post-trial procedural rights.

|aDISCUSSION

Standard of Review

It is well settled that factual findings in workers’ compensation cases are subject to the “manifest error” or “clearly wrong” standard of appellate review. Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164. In applying the manifest error— clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Seal, 97-0688 at p. 4, 704 So.2d at 1164. Where two permissible views of the evidence exist, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Id. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556.

Louisiana Workers’ Compensation law is to be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1006 (La.1989). To establish entitlement to workers’ compensation benefits, a claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979). For an employee to establish entitlement to temporary total disability benefits, he must prove by clear and convincing evidence, unaided by a presumption of disability, that he is physically unable to engage in any employment, regardless of its nature, and including employment while working in pain. La. R.S. 23:1221(1)(c). Coats v. American Tel. and Tel. Co., 95-2670, p. 8 (La.10/25/96), 681 So.2d 1243, 1247. The burden of proving the existence of a fact by clear and convincing evidence requires that its existence be highly probable, that is, much more probable than its non-existence. Scherer v. Interior Plant Design, 98-702, pp. 4-5 (La.App. 3 Cir. 10/28/98), 724 So.2d 797, 800.

Issue One: Whether the WCJ erred by finding that Mr. Alphonso failed to prove that he continued to be disabled as a result of his job-related injury of March 14, 2000.

Mr. Alphonso argues that the standard of review is not whether he is generally “disabled” or generally capable of “engaging in employment,” but whether he is disabled for the specific purpose of continuing the employment in which he was employed at the time of the accident. Specifically, Mr. Alphonso contends that he never asserted that there was no work he could perform; rather, he contends that his injuries and pain medication prevent him from returning to the physically demanding and Federally regulated commercial trucking industry.

Louisiana Revised Statute 23:1221 provides the following on when compensation shall be paid for temporary total disability or permanent total disability:

(1) Temporary total.
(a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.
(b) For purposes of Subparagraph (l)(a) of this Paragraph, compensation for temporary disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot | ^employment, sheltered employment, or employment while working in any pain.
(c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
(d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.
(2) Permanent total.
(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.
(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or | ^employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
(d) Notwithstanding any judgment or determination that an employee is permanently and totally disabled, if such employee subsequently has or receives any earnings, including, but not limited to, earnings from odd-lot employment, sheltered employment, or employment while working in any pain, such employee shall not receive benefits pursuant to this Paragraph but may receive benefits computed pursuant to Paragraph (3) of this Section, if applicable.
(e) The issue of permanent total disability provided herein shall not be adjudicated or determined while the employee is engaged in employment pursuant to R.S. 23:1226(G), but such employment shall not prevent adjudication or determination of the employee’s right to any other benefits otherwise provided in this Chapter; however, the employee shall not by virtue of employment pursuant to R.S. 23:1226(G) be deprived of the right to determination or adjudication of permanent total disability herein at a time when he is not engaged in such employment.

After a close reading of Louisiana’s Workers’ Compensation law, we find no merit to Mr. Alphonso’s argument that the WCJ erred when she failed to find that he was not physically disabled for his duties as the driver of an 18-wheeler. As stated above, the question is not whether Mr. Alphonso can return to work as an 18-wheeler driver but whether he can prove by clear and convincing evidence that he is physically incapable of engaging in any employment, including employment while working in pain.

At trial, Mr. Alphonso admitted that he has been quite active since his March 2000 accident. Specifically, on direct examination, Mr. Alphonso testified that he had picked up boxes for his wife’s Karaoke Company, that he had worked on his car and truck, and that he had driven a taxi-cab part-time. Further, on cross-examination, Mr. Alphonso admitted he engaged in the following activities subsequent to his work related accident: jumping his brother-in-law’s vehicle with battery cables; removing bucket seats out of an old Cadillac; helping his brother! 7in-law push cars several times; and picking up Karaoke speakers and books. We conclude that this evidence alone indicates that the WCJ was not clearly wrong in finding that Mr. Alphonso had not proven by clear and convincing evidence that he was disabled and unable to return to any employment. It is worth reiterating that the existence of pain is not a pertinent factor in the issue of disability benefits.

Nevertheless, the WCJ’s judgment fails to determine whether Mr. Alphonso is capable of returning to his pre-injury occupation of driving 18-wheelers. As argued by Mr. Alphonso, is it questionable whether Mr. Alphonso can meet the strict physical standards and get the medical certification required under the Department of Transportation and the Code of Federal Regulations in order for him to drive 18-wheelers. Under the Code of Federal Regulations Title 49 § 391.41(b)(7), a person is physically qualified to drive a commercial motor vehicle if that person “has no established medical history or clinical diagnosis of rheumatic, arthritic, orthopedic, muscular, neuromuscular, or vascular disease which interferes with his/her ability to control and operate a commercial motor vehicle safely.” We therefore remand the case to the office of Workers’ Compensation for consideration under La. R.S. 23:1226, Rehabilitation of injured employees. As stated under La. R.S. 23:1226, Rehabilitation of injured employees:

A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services.
B. (1) The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:
(a)Return to the same position.
ls(b) Return to a modified position.
(c) Return to a related occupation suited to the claimant’s education and marketable skills.
(d) On-the-job training.
(e) Short-term retraining program (less than twenty-six weeks).
(f) Long-term retraining program (more than twenty-six weeks but not more than one year).
(g) Self-employment.
(2) Whenever possible, employment in a worker’s local job pool must be considered and selected prior to consideration of employment in a worker’s statewide job pool.
(3) The employer shall be responsible for the selection of a vocational counsel- or to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, the employee may file a claim with the office to review the need for such services in the same manner and subject to the same procedures as established for dispute resolution of claims for workers’ compensation benefits.
C. (1) Rehabilitation services required for disabled workers may be initiated by:
(a) An insurer or self-insured employer by designating a rehabilitation provider and notifying the office.
(b) The office by requiring the insurer or self-insured employer to designate a rehabilitation provider.
(c) The employee, through a request to the office. The office shall then require the insurer to designate a rehabilitation provider.
(2) Rehabilitation services provided under this Part must be delivered through a rehabilitation counselor approved by the office.
D. Prior to the workers’ compensation judge adjudicating an injured employee to be permanently and totally disabled, the workers’ compensation judge shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.
E. When it appears that a retraining program is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to a reasonable and proper retraining program for a period not to exceed twenty-six weeks, which period may be extended for an additional period not to exceed twenty-] ¡¡six additional weeks if such extended period is determined to be necessary and proper by the workers’ compensation judge. However, no employer or insurer shall be precluded from continuing such retraining ■beyond such period on a voluntary basis. An injured employee must request and begin retraining within two years from the date of the termination of temporary total disability as determined by the treating physician. If a retraining program requires residence at or near the facility or institution and away from the employee’s customary residence, reasonable cost of board, lodging, or travel shall be borne by the employer or insurer. A retraining program shall be performed at facilities within the state when such facilities are available. Refusal to accept rehabilitation as deemed necessary by the workers’ compensation judge shall result in a fifty percent reduction in weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), for each week of the period of refusal.
F. Temporary disability benefits paid pursuant to R.S. 23:1221(1) shall include such period as may be reasonably required for training in the use of artificial members and appliances and shall include such period as the employee may be receiving training or education under a retraining program pursuant to this Section.
G. The permanency of the employee’s total disability under R.S. 23:1221(2) cannot be established, determined, or adjudicated while the employee is employed pursuant to an on-the-job training or a retraining program as provided in Subsections B and E of this Section.

Accordingly, we remand this case to the office of Workers’ Compensation in order for it to consider whether rehabilitation services are needed and whether Mr. Alphonso can in fact return to the Federally Regulated trucking business, or whether he must return to some modified position,

Issue Two: Whether the WCJ erred by finding that Mr. Alphonso committed fraudulent statements while applying for his compensation benefits.

BTT argues that Mr. Alphonso violated La. R.S. 23:1208 and has therefore forfeited his entitlement to any benefits. BTT urges that surveillance evidence of Mr. Alphonso establishes that claimant was performing various activities, which contradicts his disability claim that he was unable to work. BTT argues that the surveillance indicated he pushed a disabled automobile; jumped up and down | inrepeatedly on an automobile hitch while attempting to fasten it; and lifted and carried a karaoke machine and speakers.

La. R.S. 23:1208 authorizes forfeiture of benefits upon proof that: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The party who requests that the benefits be forfeited must show that the employee’s statements were not only false, but they must also that the statements or misrepresentation were willful and deliberately done with the intent to obtain benefits. Resweber v. Haroil Const. Co., 94-2708 (La.09/05/95), 660 So.2d 7. All of these requirements must be present before a claimant can be penalized. Nolan v. Rawls Farming Co., 35,086 (La.App.2d Cir.10/31/01), 801 So.2d 524, writ denied, 02-0001 (La.03/15/02), 811 So.2d 910. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions. Chevalier v. L.H. Bossier, Inc., 95-2075 (La.07/02/96), 676 So.2d 1072.

Upon review of the record, we find that the WCJ erred in her finding that Mr. Alphonso’s conduct, acts and representations violated La. R.S. 23:1208 and that his workers’ compensation benefits were forfeited. Although the videotaped surveillance of claimant did in fact show Mr. Alphonso pushing a disabled automobile; jumping up and down on an automobile hitch while attempting to fasten it; and lifting and carrying a karaoke machine and speakers, we fail to find evidence indicating that Mr. Alphonso willfully made false representations in order to receive benefits. In fact, Mr. Alphonso testified at trial that subsequent to his job related injury, he engaged in the following activities: helping his wife with her Karoke business, driving to the casino’s in Mississippi on several occasions, In working on his car and truck, and helping his brother-in-law with his repo business. Mr. Alphonso testified that if the activities hurt him too much, he would quit, take some medication, and would lie down. Mr. Alphonso testified that the pain would subside after he took the medicine and rested for a few hours. Further, the videotaped surveillance does not indicate what Mr. Alphonso can do on a whole daily basis. Overall, Mr. Alphonso’s testimony does not evince an attempt to give false statements for the purpose of obtaining workers’ compensation benefits. Consequently, we find sufficient evidence in the record to determine that Mr. Alphonso did not forfeit his right to compensation. Accordingly, we find it was manifest error for the WCJ to find that BTT had made a prima facie showing that Mr. Alphonso has violated the provisions of La. R.S. 23:1208 in that he made a false statement or representation; that it was willfully made; and that it was made for the purpose of obtaining workers’ compensation benefits.

Issue Three: Whether the WCJ erred in failing to ñnd that BTT was unreasonable, arbitrary and capricious for terminating his weekly benefits and medical benefits.

Mr. Alphonso asserts that the WCJ erred in refusing to award penalties and attorney fees against BTT. According to Mr. Alphonso, BTT’s termination of his workers’ compensation benefits was arbitrary and capricious because there was no basis for the discontinuance of benefits. We disagree.

Mr. Alphonso seeks attorney fees and penalties against BTT for the termination of his benefits in March 2001. As such, this case is essentially a claim for discontinued benefits under La. R.S. 23:1201.2, not a claim for untimely benefits under La. R.S. 23:1201. As stated by this Court in Hobson v. East Jefferson General Hospital, 2002-1212, p. 25, (La.App. 4 Cir. 1/8/03), 837 So.2d 149, 163, “[t]his is dis-positive of the question of penalties because La. R.S. 23:1201.2 does not provide for penalties.” In making this statement, this Court adopted the analysis found in Lejeune v. Lawrence Habetz Roofing Co., 2000-1743, p. 4-5 (La.App. 3 Cir. 4/4/01), 782 So.2d 1181, 1184:

The supreme court recently discussed the difference between Louisiana Revised Statutes 23:1201.2 and 23:1201(F), stating: In instances where the employer fails to commence payment of benefits, penalties and attorney’s fees are authorized under La. R.S. 23:1201 F, unless the claim is reasonably controverted. See McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694. However, because the instant case involves discontinuation of benefits rather than failure to provide benefits, La. R.S. 23:1201.2, not La.R.S. 23:1201 F, applies. See Williams v. Rush Masonry, Inc., 98-2271, p. 6 (La.6/29/99), 737 So.2d 41, 45 (“[sjince this 1995 amendment, Section 1201.2 now addresses solely the discontinuance of payment of claims, while Section 1201 now addresses solely the timeliness of commencement of benefit payments and timeliness of continued payments.”) J.E. Merit Constructors, Inc. v. Hickman, 00-943, p. 5 (La.1/17/01); 776 So.2d 435, 437 n. 6 (alteration in original).

Hobson, 837 So.2d 149, 163. Further, although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. See International Harvester Credit Corp. v. Seale, 518 So.2d 1039, 1041 (La.1988).

Thus, for Mr. Alphonso to recover attorneys fees, he must show that BTT’s decision to discontinue benefits in March 2001 was arbitrary and capricious. In Hobson, this Court also quoted the Lejeune case in its analysis of when an employee’s decision to discontinue benefits was arbitrary and capricious. As stated in Hobson:

Louisiana Revised Statute 23:1201.2 provides that reasonable attorney’s fees are awarded as a penalty under the workers’ compensation law when an employer discontinues payment of benefits, and “such discontinuance is found to be arbitrary, capricious, or without probable cause.... ” “Arbitrary and capricious behavior is willful and unreasonable action, without consideration and regard for the facts and circumstances presented.” J.E. Merit, 776 So.2d at 43738. “An award of attorney’s fees in a workers’ compensation case is essentially penal in nature, as it is intended to discourage indifference and undesirable conduct by employers and insurers.” Id. “Attorney’s fees should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative.” Id. Furthermore, Louisiana Revised Statute 23:1201.2 does not provide for an assessment of penalties in the case of discontinuance of payment. Insurance Co. of North America v. Labit, 99-2448, 99-2449 (La.App. 1 Cir. 11/15/00); 772 So.2d 385.

Hobson, 837 So.2d at 164, citing Lejeune, 782 So.2d at 1184.

In this case, BTT discontinued benefits in March 2001 when it disputed whether Mr. Alphonso’s job-related injury prevented him from returning to employment. BTT hired an investigator to conduct video surveillance, which indicated that Mr. Alphonso was in fact capable of standing, walking, bending, and carrying objects. Based on these facts, it was reasonable for the WCJ to conclude that there was evidence on which BTT could reasonably rely upon to terminate benefits. Finding no error in the judgment of the WCJ, we conclude that BTT’s decision to discontinue benefits was not arbitrary and capricious.

For the foregoing reasons, we affirm that portion of the judgment below, which found that Mr. Alphonso failed to prove that he continued to be disabled as a result of his job-related injury. We reverse that portion of the judgment below, which found that Mr. Alphonso forfeited his rights to workers’ compensation under La. R.S. 23:1208. Further, we remand the case for the office of Workers’ Compensation to determine whether Mr. Alphonso is capable of returning to his pre-injury employment and whether he is entitled to rehabilitation services. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

ARMSTRONG, J., concurs.

      . In this case, the WCJ failed to give reasons for imposing statutory forfeiture.


source: Caselaw Access Project

author: h JAMES F. MCKAY, III, Judge.

license: Public Domain

text:
    Joseph S. LORIA v. PETUNIA’S RESTAURANT, d/b/a St. Louis Crepe Shop, Alexander Peter Thomas, Hoyle Byrd and XYZ Insurance Company.
    No. 2002-CA-1712.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2003.

      Brian D. Katz Herman, Herman, Katz & Cotlar, L.L.P., New Orleans, LA, for PlaintifPAppellant.
    Ronald L. Wilson, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO, Jr.).
   h JAMES F. MCKAY, III, Judge.

On August 18, 1997, an altercation involving Joseph Loria and Scott McCreary occurred at Petunia’s Restaurant. Mr. Loria, who had a history of nerve damage and paralysis in his left hand, was employed as a waiter at ;the restaurant while Mr. McCreary worked there as a dishwasher; Mr. Loria had no supervisory capacity over Mr. McCreary or any other employee. The cause of this altercation apparently had something to do with a disagreement as to who was going to take chairs off the tables. After the altercation, Mr. Loria continued working and did not go to a hospital or doctor that day. However, the restaurant’s manager, Jay Loom-is, sent Mr. McCreary home. After Mr. McCreary’s departure, Mr. Loria telephoned the police and filed charges against him.

On August 20, 1997, Mr. Loria went to the emergency room at Methodist Hospital with a chief complaint of left arm weakness. The treating diagnosis was radial nerve palsy/multiple contusions. On August 26, 1997, Mr. Loria was examined by Dr. Donald Faust and was diagnosed as having a radial nerve palsy; it was Dr. Faust’s opinion that Mr. Loria had a very complex history with a prior | ¡.radial nerve paralysis. Mr. Loria was referred to Dr. William Martin for a neurological evaluation. It was Dr. Martin’s opinion that the current electro diagnostic studies should tend to indicate the presence of mononeu-ropathy of the left radial nerve which appears to be in convalescence stage. Mr. Loria then underwent physical therapy at Southern Hand Specialist. He was discharged on October 21,1997 with goals not met. Thereafter, Mr. Loria underwent surgery with preoperative and postoperative diagnoses being the same: left low radial nerve palsy. After his surgery, Mr. Loria returned to work. However, he did not return to Petunia’s.

On October 31, 1997, Mr. Loria filed suit against Petunia’s Restaurant d/b/a St. Louis Crepe Shop and its owners, Alexander Peter Thomas and Hoyle Boyd, alleging that they were responsible for his injuries pursuant to Louisiana Civil Code articles 2315 and 2320. Mr. Loria later added Scott McCreary as an additional defendant. On January 22, 2001, Mr. Lo-ria filed a motion for partial summary judgment seeking to establish that Petunia’s Restaurant was liable for the tortious act of its employee, Scott McCreary. The trial court denied the motion on April 6, 2001. The case proceeded to trial on April 16, 2002. On April 26, 2002, the trial court entered judgment in favor of the defendants and dismissed the plaintiffs claims with prejudice, with each party bearing its own costs. The plaintiff then filed a motion for a new trial which the trial court denied. The plaintiff appeals the trial court’s judgment.

I ¡¡On appeal, Mr. Loria contends that the trial court erred in failing to consider allegations of Petunia’s negligence in his second supplemental and amending petition, specifically allegations of Petunia’s vicarious liability for the acts of its employee, Mr. McCreary.

The trial court was provided with several opportunities to consider whether Petunia’s was vicariously hable for the acts of Mr. McCreary. Although the trial court’s judgment and reasons for judgment make no mention of vicarious liability that does not mean that the trial court did not consider this issue. It is well settled that when a trial court’s judgment is silent with respect to a party’s claim, or an issue placed before the court, it is presumed that the trial court denied the relief sought. Dixie Roofing Co. of Pineville, Inc. v. Allen Parish School Bd., 95-1526, 95-1527 (La.App. 3 Cir. 5/8/96), 690 So.2d 49; Campagna v. Smallwood, 428 So.2d 1343 (La.App. 4 Cir.1983). Therefore, in the instant case, we presume that the trial court found that there was no vicarious liability on the part of Petunia’s.

In order for an employer to be held vicariously liable for the intentional tort of one employee against another, the tortfeasor/employee must be acting within the course and scope of his employment. Aaron v. New Orleans Riverwalk Ass’n, 580 So.2d 1119, 1121 (La.App. 4 Cir.1991). The mere fact that an employee commits an intentional tort at the workplace does not in and of itself expose an employer to vicarious liability. Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 1000. In LeBrane v. Lewis, 292 So.2d 216 (La.1974), the Louisiana Supreme Court set forth several factors to be considered in determining whether an | ¿employee, when committing an intentional tort, was acting within the course and scope of his employment. Those factors are: whether the tortious conduct was primarily employment rooted; whether the violence was reasonably incidental to the performance of the employee’s duties; whether the act occurred on the employer’s premises; and whether it occurred during the hours of employment.

In the instant case, the altercation took place at Petunia’s during the hours of employment. Whether the tortious conduct was primarily employment related is somewhat ambiguous. While it is true that Mr. Loria told Mr. McCreary to take chairs off the tables, he also called Mr. McCreary a number of derogatory names both before and after telling Mr. McCreary to remove the chairs. The violence, however, was not reasonably incidental to the performance of Mr. Loria’s duties; he was not acting within the ambit of his assigned duties or in furtherance of his employer’s objectives. On the day of the altercation, Mr. Loria was a waiter; he was not a manager or supervisor. Mr. McCreary was a dishwasher. It was not part of his job to remove chairs from the tables and his supervisor, Jay Loomis, never instructed him to do so. Accordingly, at the time of the altercation, neither Mr. Loria nor Mr. McCreary were acting within the course and scope of their employment with Petunia’s. Therefore, Petunia’s is not vicariously liable for Mr. Loria’s alleged injuries.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . After returning to work, Mr. Loria worked for several employers. Mr. Loria also made a number of representations concerning his work history that were untrue.

      . Mr. Loria, at some time prior to the incident, was a manager, but he was relieved of managerial responsibilities because he did not perform them satisfactorily.


author: | JAMES F.'McKAY, III, Judge.

text:
    In re Vicki ABDO, Applying for a Medical Review Panel. Vicki Sprague Abdo, Individually, on Behalf of, and in Her Capacity as Curatrix of Her Husband, Leonard Abdo, and on Behalf of and in Her Capacity as Natural Tutrix of Her Minor Children, Velena Abdo, Veronica Abdo, and Velicity Abdo v. John F. Schuhmacher, M.D., Doctors Hospital of Jefferson, Thomas S. Whitecloud, III, M.D., Tulane University Medical Center, James Ricciardi, M.D., and George Chimento, M.D.
    Nos. 2002-CA-2513, 2002-CA-2514.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2003.

      James C. Kliek, Joseph A. Kott, Herman, Herman, Katz & Cotlar, New Orleans, LA, and Thomas M. Discon, Discon Law Firm, Mandeville, LA, for Plaintiff/Appellant.
    Stewart E. Niles, Jr., Michelle A. Bo-urque, Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO, JR.).
   | JAMES F.'McKAY, III, Judge.

The plaintiffs, Vicki Sprague Abdo, individually and on behalf of and in her capacity as curatrix of her husband, Leonard Abdo, and on behalf of and in her capacity as natural tutrix of her minor children, Velena Abdo, Veronica Abdo and Velecity Abdo, appeal a trial court judgment in favor of the defendant, The Administrators of the Tulane Educational Fund d/b/a Tulane University Medical Center (TUMC), in this medical malpractice action. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 4, 1993, Dr. John Schumacher performed a C5-6/C6-7 anterior cervical discectomy and fusion on Leonard Abdo at Doctor’s Hospital of Jefferson (DHJ). Mr. Abdo was hospitalized at DHJ from March 4 through March 13, 1993, when he left DHJ against medical advice because he was unhappy with his treatment and was admitted to TUMC.

Upon his admission to TUMC, Mr. Abdo’s right ilium bone graft donor site was infected. Therefore, on March 14, 1993, Dr. James Ricciardi, an orthopedic surgeon, assisted by Dr. George Chimento, an orthopedic resident, performed an | ¡¡irrigation and debridement of Mr. Abdo’s right iliac crest donor site and on March 16, 1993 Dr. Ricciardi closed the site. On March 17, 1993, an MRI of the cervical spine revealed a probable cervical abscess. The next day, Dr. Thomas Whitecloud, an orthopedic surgeon, assisted by Dr. Ric-ciardi, performed an irrigation and de-bridement of Mr. Abdo’s anterior cervical fusion site with drainage of the abscess, revision of the strut graft at C5-C7, and application of a halo traction. Mr. Abdo was then transferred to the critical care unit where his cardiopulmonary status was continuously monitored.

Between March 18 and March 21, 1993, Mr. Abdo’s vital signs remained stable, his neurovascular status remained intact, and his pulse oximetry oxygen saturation levels were normal. He was also intermittently confused, restless, and agitated with related elevation of his blood pressure and heart rate.

From approximately 7:00 a.m. until 7:00 p.m. on March 21, 1993, C. Daniel Daugherty, R.N. was the nurse assigned to Mr. Abdo. During this time, Mr. Abdo’s vital signs were stable; his respirations were regular and unlabored on room air; he produced no sputum; his pulse oximetry oxygen saturation levels were normal; he also denied shortness of breath and took 700 cc’s of fluids by mouth. Mr. Abdo was given morphine intravenously for pain and was given ativan intravenously for restlessness and agitation. Dr. Ricciardi examined Mr. Abdo at 7:40 a.m. and Dr. Chimento examined Mr. Abdo at 8:10 a.m. Both Dr. Ricciardi and Dr. Chimento were aware of Mr. Abdo’s restlessness and agitation. Dr. Mark Bielke, an infectious diseases specialist, examined Mr. Abdo at 11:40 a.m. Mr. | ^Daugherty documented that Mr. Abdo’s breath sounds were abnormal at 8:30 a.m. with a “nimble” and then again at 2:30 p.m. with a slight inspi-ratory wheeze.

Between 6:30 p.m. and 6:45 p.m., Mary Kay Campbell, R.N. assumed care of Mr. Abdo. During her initial assessment of Mr. Abdo, he was restless and agitated and had a related elevated blood pressure of about 220/110. At 7:00 p.m., Ms. Campbell called Dr. Chimento and reported her assessment of Mr. Abdo. Dr. Chimento instructed Ms. Campbell to give Mr. Abdo 50 mg of Benadryl intramuscularly every six hours as needed and to give Haldol if Mr. Abdo did not calm down in a half hour. Dr. Chimento also instructed Ms. Campbell to reassess Mr. Abdo twenty to thirty minutes after giving the Haldol and to call him back if Mr. Abdo was still restless and his blood pressure remained high.

Between 7:10 p.m. and 7:30 p.m., Mr. Abdo remained anxious and agitated. Around 7:15 p.m., Ms. Campbell gave Mr. Abdo 50 mg of Benadryl intramuscularly. At 7:30 p.m., Ms. Campbell documented her initial assessment of Mr. Abdo, which stated: he was restless, confused, and combative; he had normal sinus cardiac rhythm and was in a sinus tachycardia; and his respirations were clear and unla-bored on room air. At 7:30 p.m., Ms. Campbell rechecked Mr. Abdo’s blood pressure and it was 280/137.

Between 7:30 p.m. and 7:45 p.m., Mr. Abdo’s systolic blood pressure came down to the 220s over 110s but he remained restless and agitated. At 7:45 p.m., Ms. Campbell gave Mr. Abdo 5 mg of Haldol intramuscularly. At 7:56 p.m., Mr. Abdo’s monitor alarms went off and Ms. Campbell found him unresponsive; he ^suffered respiratory arrest. Mr. Abdo was resuscitated but he remained unresponsive.

A cervical x-ray done at 9:45 p.m. on March 21, 1993 showed no evidence of prevertebral soft tissue swelling and a lung ventilation perfusion scan was negative for pulmonary embolism. A March 22, 1993 CT scan of the head confirmed that Mr. Abdo had not had a stroke. Urine toxicology screens on March 22, 24, and 30, 1993 revealed the presence of marijuana metabolites; there was also evidence that Mr. Abdo had smoked marijuana prior to his March 18, 1993 surgery. Mr. Abdo’s treating physicians ultimately concluded, based on a diagnosis of exclusion, that his respiratory arrest was precipitated by an unforeseeable idiosyncratic reaction to his multiple medications, complicated by his marijuana use.

On May 5, 1993, Mr. Abdo was transferred to Touro Infirmary’s Rehabilitation Unit, with a diagnosis of anoxic encephalopathy. He remained there in a chronic vegetative state until August 20, 1993, when he was discharged. On July 16, 1996, Mr. Abdo died at home.

On May 24, 1995, the plaintiffs filed a medical malpractice suit alleging that Leonard Abdo’s anoxic encephalopathy was proximately caused by negligent care provided by defendants, Dr. John Schu-macher, DHJ, TUMC, Dr. Thomas Whi-tecloud, III, Dr. James Ricciardi and Dr. George Chimento. In June of 1998 | Rmotions for summary judgment were filed on behalf of Dr. Whitecloud, Dr. Ric-ciardi, Dr. Chimento, TUMC and Dr. Schumacher. On August 24, 1998, the plaintiff voluntarily dismissed her claims against Dr. Schumacher and DHJ. On February 11, 2000, the trial court granted summary judgment in favor of Dr. Whitee-loud, Dr. Ricciardi, and Dr. Chimento. The case against TUMC proceeded to trial on September 10 and 12, 2001 and March 11, 12, and 13, 2002. On September 13, 2002, the trial court entered judgment in favor of TUMC.

DISCUSSION

On appeal, the plaintiffs raise the following assignments of error: 1) the trial court impermissibly interfered with plaintiffs’ cross examination of witnesses; 2) the trial court improperly refused to allow the plaintiffs to expand the pleadings to assert liability against TUMC based on Dr. Chi-mento’s testimony that he would have continued to order Haldol and not consider an anti-hypertensive medication, even if Ms. Campbell would have reported to him an elevated blood pressure of 280/137 at 7:30 p.m.; 3) the errors of the trial court, whether taken individually or in combination, deprived the plaintiff of a fair trial, such that this Court should either order a new trial or review the record de novo to determine the issues pertaining to liability, causation and damages; and 4) regardless of whether this Court reviews the factual findings de novo or under the manifest error rule, factual determinations squarely establish that Ms. Campbell breached the standard of care with regard to her treatment of Mr. Abdo, and that this breach of the standard of | ficare deprived Mr. Abdo of a reasonable chance of survival and caused plaintiffs in this case damages.

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Furthermore, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The only issue on appeal is whether the factfinder’s conclusion was reasonable, not whether it was right or wrong. Evaluation of live witnesses on matters of credibility is better determined by the trial court, rather than from a cold record. Credibility and reasonable inferences of fact should not be disturbed where there is evidence of conflicting testimony at trial. Stobart v. State, 617 So.2d 880 (La.1993).

In the instant case, the trial court concluded that Ms. Campbell complied with the standard of care and that no breach by Ms. Campbell deprived Mr. Abdo of a chance of survival. The plaintiffs were required to prove with expert testimony the applicable standard of care, that Ms. Campbell breached the nursing standard of care, and a causal nexus between such a breach and Mr. Abdo’s March 21, 1993 respiratory arrest. The plaintiffs were required to prove the alleged nursing malpractice by a preponderance of the evidence. Injury alone does not raise a presumption that a physician or nurse was negligent. See La. R.S. 9:2794(C). See also Barre v. Nadell, 94-1883 (La.App. 4 Cir. 6/7/95), 657 So.2d 514, 518. Hindsight or subsequent events cannot be considered when determining whether a nurse’s actions were reasonable and met the standard of care. A nurse’s “professional judgment and conduct are evaluated in terms of reasonableness under the then existing circumstances, not in terms of result or in light of subsequent events.” Beckham v. St. Paul Fire and Marine Ins. Co., 614 So.2d 760, 764 (La.App. 2 Cir.1993). In the instant case, the plaintiffs have failed to prove with expert testimony that Ms. Campbell has breached any standard of care. Accordingly, we find nothing clearly wrong or manifestly erroneous with the trial court’s judgment on this issue.

The plaintiffs contend that the trial court impermissibly denied them the opportunity to cross-examine the defendant’s witnesses and improperly commented on the evidence. Essentially, what the plaintiffs are complaining about is that the trial court denied them the opportunity to cross-examine the defendant’s witnesses for a second time.

A trial judge has discretion in the manner in which proceedings are conducted before his court, and it is only upon a showing of gross abuse of discretion that appellate courts intervene. Briscoe v. Briscoe, 25,955 (La.App. 2 Cir. 8/17/94), 641 So.2d 999, 1005. Louisiana Code of Civil Procedure article 1631 gives the trial judge the power to conduct trial in an orderly and expeditious | ¿manner. Furthermore, a judge has the discretion to participate in the questioning of witnesses. See La.Code Evid. art. 614.

In the instant case, based on the record before us, it appears that the trial court conducted the trial in an orderly and expeditious manner. We must note that as this was a bench trial, the judge’s comments can in no way be viewed as prejudicial. Accordingly, we find no abuse of the trial court’s discretion regarding this issue.

The plaintiffs contend that the trial court improperly refused to allow them to expand the pleadings to assert liability against TUMC based on Dr. Chimento’s testimony that he would have continued to order Haldol and not consider an anti-hypertensive medication, even if Ms. Campbell would have reported to him an elevated blood pressure of 280/137 at 7:30 p.m.

The plaintiffs’ claim against Dr. Chimen-to was dismissed more than a year before trial on a motion for summary judgment. Louisiana Code of Civil Procedure 968 provides that summary judgments are final judgments and “shall be rendered and signed in the same manner and with the same effect as if trial had been had upon evidence regularly adduced.” Accordingly, any issue of Dr. Chimento’s alleged negligence was not before the court at the time of trial. Therefore, we find no error in the trial court’s refusing to allow the plaintiffs to expand their pleadings.

|9CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal shall be borne by the plaintiffs.

AFFIRMED.

MURRAY, J., Concurs in the Result.

      . A March 17, 1993 physical therapy note indicates that Mr. Abdo was "smoking in room.” Dr. Chimento testified that this note related to when Mr. Abdo was smoking marijuana in his room the day before his March 18, 1993 surgery.

      . He remained in a chronic vegetative state until he died.

      . A medical review panel rendered an opinion finding that the evidence did not support the conclusion that any of the defendants failed to meet the applicable standard of care as charged in the complaint.

      . In Beckham, this standard of care refers specifically to a physician. By analogy this standard of care can be applied to a nurse.

      . Crystal Keller, the plaintiffs’ nursing expert, opined that Mr. Daugherty’s and Ms. Campbell’s care of Mr. Abdo was "substandard” because they allegedly did not employ "critical thinking” and failed to recognize and report "anticipatory signs” of respiratory distress. Dr. Edwin Ross, the plaintiffs' causation expert, testified regarding general observations but conceded that he was not engaged to say what caused Mr. Abdo's respiratory arrest and was not qualified to opine regarding the cause of Mr. Abdo's respiratory arrest.

      . It makes no difference whether this judgment was with or without prejudice.


author: |, DAVID S. GORBATY, Judge.

text:
    Jessie Ann BURNETT, Individually, and as Natural Tutrix of Rachel Lynn, James Clayborn, Taylor Brook, Van Michael, Loni Michelle, Jacob Riley, and Joshua Thomas Burnett, and Personal Representative of the Succession of James L. Burnett, Jr. v. Michael LEWIS, Troylynn Washington, State Farm Insurance Company, Usaa Casualty Insurance Company, and the City of New Orleans. Lisa Zachmann and Michael Zachmann, Individually and on Behalf of their Child, Lauren E. Zachmann v. Michael Lewis, Troylynn Washington, State Farm Mutual Automobile Insurance Company, and the City of New Orleans. Donna S. Hinojosa, Wife of Roberto Hinojosa v. Michael Lewis, Troylynn Washington, State Farm Insurance Company and the City of New Orleans. Jessie Ann Burnett, Individually, and as Natural Tutrix of Rachel Lynn, James Clayborn, Taylor Brook, Van Michael, Loni Michelle, Jacob Riley, and Jushua Thomas Burnett, and Personal Representative of the Succession of James L. Burnett, Jr. v. Michael Lewis, Troylynn Washington, State Farm Insurance Company, USAA Casualty Ins. Co., and the City of New Orleans.

      Nos. 2002-CA-0020, 2002-CA-0021, 2002-CA-0022, 2002-CA-1573.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2003.
    Rehearing Denied Aug. 29, 2003.

      Crawford A. Rose, III, Metairie, LA, for Lisa Zachmann, et al.
    Edward F. Kohnke IV, Allen J. Krouse, III, Frilot, Partridge, Kohnke & Clements, L.C., A. Remy Fransen, Jr., Matthew R. Fransen, Fransen & Hardin, New Orleans, LA for Plaintiffs/Appellants.
    Marie A. Bookman, New Orleans, LA, for the City of New Orleans.
    Emile A. Bagneris, III, Ungarino & Ec-kert LLC, Metairie, LA, for State Farm Mutual Insurance Company.
    Wayne G. Zeringue, Jr., L.Etienne Ba-lart, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, LA, for Intervenor/Appellant.
    (Court composed of Judge DAVID S. GORBATY,-Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.). ■
   |, DAVID S. GORBATY, Judge.

FACTS AND PROCEDURAL HISTORY

On May 5, 1998, a Nissan Atima driven by Troylynn Washington struck a Ford Explorer driven by Michael Lewis at the intersection of Camp and Poydras Streets. The impact between the two vehicles caused the Explorer to roll over and strike a traffic signal support located at the intersection. The actual traffic signal became detached from the pole and subsequently struck Lisa Zachmann, a pedestrian walking near the intersection. The Explorer also rolled over onto two pedestrians, James L. Burnett, Jr. and Roberto Hinojo-sa, who were standing near the intersection as well. Mr. Burnett died the following day due to his injuries.

Jessie Ann Burnett, individually and as the surviving spouse of Mr. Burnett, and the natural tutrix of their seven minor children, and as the personal representative of the succession of James L. Burnett, Jr., filed suit on July 20, 1998 against Michael Lewis and his insurer, State Farm Mutual Insurance Company; Troylynn Washington and her insurer, State Farm Mutual Insurance Company; L USAA Casualty Insurance Company, Mr. Burnett’s uninsured motorist carrier; and the City of New Orleans. The case was allotted to Division J of Civil District Court for the Parish of Orleans.

Lisa Zachmann and her husband, Michael Zachmann, individually and on behalf of their minor child, Lauren, filed suit against the above-named defendants on March 24, 1999. The case was originally allotted to Division I of Civil District Court for the Parish of Orleans, but was subsequently consolidated with the lower-numbered Division J Burnett case. In August, 1999, the Zachmanns dismissed with prejudice defendants Washington and Lewis and their insurer, State Farm.

Robert Hinojosa and his wife, Donna, initiated suit against the same defendants on April 15, 1999. Their case was initially allotted to Division H of Civil District Court for the Parish of Orleans, but was also subsequently consolidated with the lower-numbered Burnett case in Division J.

The consolidated matter, which included these three separate sets of plaintiffs, went to trial on August 22, 2001. The fault of defendants Lewis and Washington was tried to a jury, and the liability of the City of New Orleans was argued to the Court, pursuant to LSA-R.S. 13:5105 and La. C.C.P. art. 1732(6). The jury rendered judgment in favor of the plaintiffs, and against defendants Lewis and Washington, and their insurer, State Farm. The jury found that Michael Lewis was seventy (70) percent at fault in causing the accident, Troylynn Washington was thirty (30) percent at fault, and the City of New Orleans was not at fault. The Injury awarded the Burnetts $1.6 million in general damages, $10,771 in medical expenses, $6,978 in funeral costs, and $1,266,326 for loss of economic support, plus interest from the date of demand until paid, and all costs of the proceedings. The jury awarded Roberto Hinojosa $500,000 in general damages and $150,000 in past and future medical expenses, and Donna Hinojosa $5,000 for past, present, and future loss of consortium, plus interest from the date of demand, and all costs of the proceedings. The jury awarded Lisa Zachmann $400,000 in general damages, plus $100,000 in past, present, and future medical expenses, and Michael and Lauren Zachmann each $5,000 for past, present, and future loss of consortium.

The trial judge concluded the proceedings and issued its judgment on October 2, 2001, finding in favor of the City and against all plaintiffs. The court found that the blame for the accident rested solely with Lewis and Washington. The court specifically held that “the plaintiffs have failed to prove beyond a preponderance of the evidence (1) the traffic signal light malfunctioned; (2) that the City had prior notice of the malfunction; (3) that the City had a reasonable opportunity to cure the defect; and (4) that the alleged defect was the cause in fact of their damages.” The court also found that “(1) Michael Lewis was speeding and either ran the red light or attempted to traverse the intersection on a late yellow light; and (2) Troylynn Washington was negligent in not looking for oncoming traffic prior to entering the intersection, or she in fact ran the red light.” Later, on November 27,2001, the trial court issued an Amended Judgment, because its first |4had erroneously rendered judgment against Troylynn Washington, a defendant who had settled with plaintiffs during trial. The deletion of Washington and her insurer was the only change to the October 2001 judgment. Subsequently, the plaintiffs filed separate appeals, which were consolidated. Inter-venor Texaco Exploration & Production Inc. (“TEPI”), the employer of James L. Burnett, Jr., also appealed.

ASSIGNMENTS OF ERROR BY THE ZACHMANNS

1. The trial court erred in altering the jury interrogatories outside the presence of counsel, conducting jury polling, adopting the jury verdict in a bifurcated trial, and signing defendant’s Ex Parte Motion to Make the Verdict of the Jury the Judgment of the Court.

Plaintiffs assert that Judge Ramsey substituted jury interrogatories in place of those provided to plaintiffs’ counsel in the September 7, 2001 charge conference. It was not disclosed to them that the jury would apportion fault by interrogatory on the strict liability and legal fault claims brought against the owner and custodian of the traffic signal, they aver.

Appellants contend that the jury instructions were confusing because they inquired about apportionment of fault not relevant to strict liability claims. However, the jury was well aware that the City of New Orleans was the only defendant on trial, because Lisa Zachmann testified that she had settled all of her claims against the defendants except the City of New Orleans.

| ¡Although the trial court must give jury instructions that properly reflect the applicable law, it is not bound to give instructions to the jury in the exact words requested. The adequacy of jury instructions must be determined in light of the instructions as a whole. An appellate court must exercise great restraint before overturning a jury verdict because the instructions were so erroneous as to be prejudicial. Labove v. Raftery, 99-1414 (La.App. 3 Cir. 4/19/00), 759 So.2d 240. It is well settled that adequate jury instructions are those that fairly and reasonably point up the issues and provide correct principles of law for the jury to apply to those issues. Laborde v. Velsicol Chemical Corp., 474 So.2d 1320 (La.App. 3 Cir.1985). The mere discovery of an error in the trial judge’s instructions does not itself justify the appellate court conducting a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the ease. Id. at 1324.

In the instant case, the jury instructions and interrogatories adequately set forth the correct principles of law to be applied. Additionally, the record contains no evidence to support plaintiffs argument that the trial judge made an ex parte communication with the jury regarding jury instructions. This court has held that it will not presume that a judge made an ex parte contact with a jury absent some credible evidence to support such an allegation. Kennedy v. St Charles General Hospital Auxiliary, 630 So.2d 888 (La.App. 4 Cir.1993).

Appellants aver that the court’s signing of an ex parte motion to adopt the jury’s verdict has interdicted the fact-finding process in this case. This court has | fiheld that “nothing in the law or jurisprudence inhibits a judge from adopting a jury’s decision in a bifurcated trial, so long as [the judge] has independently considered the law and evidence first.” Clement v. Griffin, 91-1664, p. 7 (La.App. 4 Cir. 3/3/94), 634 So.2d 412, 432. We find no error in the trial court’s action.

Appellants did not brief the assignment of error pertaining to jury polling; thus, under Rule 2-12.4 of the Uniform Rules of Courts of Appeal, it is deemed abandoned.

This assignment of error is without merit.

2. The trial court erred in finding that plaintiffs’ expert cited to no evidence of professional standards that controlled defendant’s conduct, despite plaintiffs’ invocation of LSA-R.S. 48:35 and the probative documents cited as evidence of minimum standards at trial.

Plaintiffs’ own expert, Dean Tekell, did not testify to a clear applicable standard, but rather stated that the Manual of Uniform Traffic Control Devices (“MUTCD”) allows an agency and/or the traffic engineer to determine the type of post and mounting to be used at a specific intersection. Mr. Tekell also testified that there is no mandate included in any of the journals, manuals, or literature that require an agency to use a specific type of post or mounting at that intersection. Mr. Tekell concluded that election to utilize a breakaway type of signal mounting, as used here, was at the design engineer’s discretion. Further, all of the experts agreed that nothing in the MUTCD required the City of New Orleans to place a “red on red” sequencing of the lights at this intersection. Additionally, Marvin | ./Turner, the engineer specialist for the City of New Orleans, testified that in the Central Business District of New Orleans, the speed limit does not exceed thirty-five miles per hour, and that due to the close proximity of the traffic signals, the traffic engineer has the discretion to post speed limits or not. Based upon this testimony, we find no error in this ruling of the trial court.

3-6. The trial court erred in finding that there was no defect or liability for negligent conduct in re-erecting a nonconforming and defectively designed traffic signal; in finding that no unreasonably dangerous condition existed at the intersection of Camp and Poydras Streets, where the court was on judicial notice that the City failed to properly sign Camp Street with a speed limit sign, there was no inspection of the synchronization time-based controller before this accident following two other accidents in one week’s time, and that there was evidence of a malfunction of the time-based controller that existed at this intersection on the date of this accident; in finding that the City was not the cause-in-fact of the harm; in failing to find that the factual and circumstantial evidence documented through correspondence related to knowledge of hazardous knockdowns and traffic signal shop field work reports documenting the malfunctioning of the intersection’s time-based controller was evidence of a defective condition that existed before this accident.

LSA-R.S. 9:2800 provides in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
|SB. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

As such, the plaintiff must prove that (1) the defendant owned or had custody of the thing that caused the damage; (2) that the thing was defective in that it created an unreasonable risk of harm to others; (3) that the defendant had actual or constructive knowledge of the defect or unreasonable risk of harm and failed to take corrective action within a reasonable time; and (4) causation. Wilson v. City of New Orleans, 95-2129 (La.App. 4 Cir. 4/3/97), 693 So.2d 344. A municipal authority is deemed to have constructive notice if the defect existed for such a period of time that by exercise of ordinary care and diligence, the municipal authority must have known of its existence, and the municipal authority had a reasonable opportunity to guard the public from injury by remedy of the defect. Dawson v. City of Bogalusa, 95-0824 (La.App. 1 Cir. 12/15/95), 669 So.2d 451.

At trial, plaintiffs alleged that the City improperly installed a breakaway post on the traffic signal, instead of a ridged post, at the intersection. Plaintiffs averred that if a ridged post had been utilized, the accident could have been entirely avoided, or the injuries less severe. Plaintiffs also contended that the post was improperly mounted and installed by the City on May 4, 1998 after a collision at the intersection on May 2,1998.

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). In Mart v. Hill, 505 So.2d 1120 (La.1987), the 1 flLouisiana Supreme Court posited a two-part test for the reversal of a factfinder’s determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Id. at 1127 (quoting Arceneaux v. Domingue, 365 So.2d at 1333 (La.1979)).

This test dictates that the appellate court must do more than simply review the record for some evidence that supports or controverts the trial court’s finding. Id. The appellate court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.

Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973, 976 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal |inmay not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, 579 So.2d 973, 976 (La.1991), (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Courts have recognized that “[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

In its Reasons for Judgment, the trial court relied upon the expert testimony of Dean Tekell and Elmer Darwin in concluding that the City did not create an unreasonable risk of harm by installing a breakaway post at that intersection. The court stated:

Defendant’s expert, Elmer Darwin (“Mr. Darwin”), a City engineer, testified that the breakaway post was the safest to use at that intersection based on the number of accidents involving motorists at that location annually. He stated that the City, at their own discretion, chose to use the breakaway post as means of ensuring motorist safety within the city. Plaintiffs expert, Dean Tekell (“Mr.Tekell”), testified that the Manual of Uniform Traffic Control Devices (hereinafter the “MUTCD”) allows an agency and/or the traffic engineer to determine the type of post and mounting to be used at a specific intersection ...
| nAdditionally, the evidence presented at trial reflects that on May 2, 1998, the traffic signal support located at Camp and Poydras Streets was knocked down following a small collision. The traffic signal support was re-installed on May 4, 1998, the day before the accident in question. Both Mr. Darwin and Mr. Tekell testified that they found nothing wrong with the manner in which the City’s engineers installed the traffic signal support. This leads the Court to believe that the traffic signal support was properly installed on May 4, 1998, and that there was no defect in the installation of this pole which created an unreasonable risk of harm to Ms. Za-chmann or any other pedestrian traveling near that intersection.
Third, with regard to whether the City had actual or constructive knowledge of the defect or unreasonable risk of harm and failed to take corrective action within a reasonable time, the Court finds that it did not based upon the testimony of Mr. Darwin. First, Mr. Darwin testified that motorist safety at that intersection was a top priority for the City given the number of accidents in the past. He further testified that the breakaway post was the safest type of post to use at that intersection given [that] the breakaway post “breaks away” from the ground at the point of impact, thereby decreasing the degree of injury to motorists who strike the post. He noted that the [rigid] post would only increase a motorist’s injury in an accident type situation. Finally, he stressed to the Court that at no time during his twenty-six (26) years as an engineer with the City had a pedestrian ever been injured by [a] traffic signal or traffic signal support at that intersection. He asserted, for these reasons, the City had never been made aware of the potential harm of having a breakaway post installed at that location instead of a ridged post. He concluded the City was not in a position to remedy a problem it had no knowledge of before the time of this accident. The Court agrees.
... The Court finds Mr. Darwin’s testimony and the City’s reasoning for using a breakaway post at this intersection not only credible, but uncontradicted by the testimony of plaintiffs expert, Mr. Tekell.

We agree with this analysis and find the trial court’s conclusions to be reasonable in light of the evidence, record, and testimony. Plaintiffs failed to demonstrate at trial that the traffic signals, mountings, or design was defective. They further failed to prove that the signals malfunctioned prior to the accident; the amount of time on the caution light was not sufficient to allow the reasonable and prudent driver to safely bring his or her vehicle to a stop, clear the intersection, or stop in the median; that the sequencing of the lights was defective; or that the type of post or mounting was improperly mounted and/ or installed. No testimony, lay or expert, supported appellants’ contention that a defect or malfunction caused the | ^accident in question. In short, plaintiffs did not meet their burden of proof under R.S. 9:2800. This assignment of error is without merit.

7. The trial court erred in failing to find that the City spoiled the evidence of the defective traffic signal by disposing of the evidence in bad faith after Judge Terri F. Love entered a protective order in this case.

Mr. Elmer Darwin testified that an investigation was undertaken but could not point to the City having collected any evidence. He stated that he was not made aware of this suit and did not see the protective order. We find no evidence in the record to support the contention of bad faith. This assignment of error is without merit.

ASSIGNMENTS OF ERROR BY THE BURNETTS, HINOJOSAS, AND INTER-VENOR TEPI

1. The trial court erred in applying an improper burden of proof, calling for the plaintiffs to prove their case “beyond a preponderance of the evidence,” rather than merely “by a preponderance of the evidence.”

In its Reasons for Judgment, the trial court stated:

In conclusion, the court finds the plaintiffs have failed to prove beyond a preponderance of the evidence (1) that the traffic signal and traffic signal support and mounting was [sic] defective; (2) that the City had prior notice of this alleged defect; (3) that the City of New Orleans had a reasonable opportunity to cure the defect; and (4) that the alleged defective condition was the cause in fact of their damages.

Here, the court was merely restating the applicable burden of proof set forth in La. R.S. 9:2800. In its Reasons for Judgment, the trial court fully analyzed each of the elements that had to be proven in order for the plaintiff to prevail. The trial court | ^reasonably relied upon the evidence and testimony presented at trial in concluding that the elements were not met. When the Reasons for Judgment are read in their entirety, it is evident that the trial court merely misstated, rather than misapplied, the standard of proof. This assignment of error is without merit.

2. The trial court improperly compelled the plaintiffs to prove that their recommended safety procedure (a red-on-red interval) must prevent all possible accidents, including those caused by drivers who intentionally violated the semaphore signals.

The trial court found that the plaintiffs’ experts did not prove that the City’s current traffic light sequence was defective. The court stated, “All expert witnesses agreed that a ‘red on red’ light does not prevent these types of accidents, since there would still be drivers who insist on stretching a yellow or running a red light no matter how much extra time is given.” The court also pointed out that a “red on red” light was not required by the MUTCD. We find that it is reasonable not to require a “red on red light,” based upon the expert testimony and current safety standards.

3. The court erred in not requiring the City and its traffic engineer to exercise such discretion as they possessed in a reasonable manner.

Specifically, appellants take issue with the portion of the Reasons for Judgment that provides, “... [A]ll of the experts’ calculations reflect that the 4.8 seconds on the caution light was sufficient time to allow vehicles to safely stop or clear the intersection traveling at least 25 m.p.h.” Appellants argue that the 4.&jsecond14 interval was too short, arbitrary, and not based upon scientific analysis. Appellants contend that Mr. Darwin, the official city traffic engineer and its expert, did not exercise his discretion reasonably in establishing the interval time, and urge yet again that a red-on-red interval should have been utilized.

At trial, Mr. Tekell, plaintiffs’ expert, testified that in New Orleans, as well as elsewhere, people take advantage of the long amber intervals. He reasoned that because of this fact, it is not advisable to make the yellow interval too long. Having longer amber intervals may encourage people to get used to a “stretch” light, and take advantage of it. Mr. Tekell further indicated that the use of red-on-red intervals may be taken advantage of by people knowing they have extra protected time, and therefore “stretching” their time in the interval even longer. In light of the testimony presented, we find the trial court’s conclusion to be reasonable and not manifestly erroneous.

4. The trial court arrived at factual findings that were not definitive, and were internally inconsistent in that, on a fair reading, it could be concluded from the Reasons that the court found that both of the subject drivers “ran the red fight.”

Specifically, appellants point to that portion of the Reasons for Judgment that provides:

Conversely, the court finds that (1) Michael Lewis was speeding and either ran the red fight or attempted to traverse the intersection on a late yellow fight; and (2) Troylynn Washington was negligent in not looking for oncoming traffic prior to entering the intersection, or she in fact ran the red fight.

The court did not conclude that both drivers ran the red light. The court presented the possibility that either Michael Lewis or Troylynn Washington ran the liKred fight. Either scenario is supportive of the assessment of liability by the jury and does not impact the trial court’s finding that the City was not at fault in this accident. This assignment of error is without merit.

5. The trial court erred in giving credence to the testimony of experts who otherwise would not have qualified under the criteria established in the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); See also Kumho Tire v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); State v. Foret, 628 So.2d 1116 (La.1993). Appellants complain that Mr. Darwin failed to perform any kind of scientific analysis whereby his theory or technique could be tested. He utilized an arbitrary and otherwise empirically unsupported six percent of the eighty-second traffic sequence during off-peak hours to provide a brief amber interval of 4.8 seconds. Appellants also assert that Mr. Burkart’s methodology was flawed, without specifying how or why.

In State v. Foret, the Louisiana Supreme Court discussed the admissibility of expert testimony:

La. C.E. art. 702 sets forth the general rule for the admissibility of expert testimony in Louisiana:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
As this provision is virtually identical to its source provision in the Federal Rules of Evidence, F.R.E. 702 and in several states’ evidentiary rules, we will examine and consider federal jurisprudence and other states’ jurisprudence interpreting the proper application of this rule.
“Subsumed in the requirements of Rule 702 is the premise that expert testimony must be reliable to be admissible.” State v. Cressey, 137 N.H. 402, 628 A.2d 696, 698 (N.H.1993). A recent United States Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), set forth a means for determining reliability of expert scientific testimony and answered many questions as to proper standards for admissibility of expert testimony.
In Daubert, the court was concerned with determining the admissibility of new techniques as basis for expert scientific testimony. Formerly, the test for admissibility of expert scientific testimony was based on a “short, citation-free 1928 decision” of the District of Columbia Court of Appeals, Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). In Frye, the rule for admissibility of expert testimony was delineated as requiring “general acceptance” of a technique in its respective scientific field before the technique is considered admissible. 54 App.D.C. at 47, 293 F. at 1014. Finding that “a rigid ‘general acceptance’ requirement would be at odds with ‘the liberal thrust of the Federal Rules’,” the Court concluded that Frye’s “austere standard, absent from and incompatible with [this liberal thrust] should not be applied in federal trials.” 509 U.S. at 587, 113 S.Ct. at 2794 (citations omitted).
The court replaced Frye with a new standard that requires the trial court to act in a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. This requirement stems from a belief that the rules on expert testimony serve to relax “the usual requirement of first-hand knowledge” to ensure reliability on the part of a witness. 509 U.S. at 591, 113 S.Ct. at 2796. This relaxation is justified so long as “the expert’s opinion (has) a rehable basis in the knowledge and experience of his discipline.” Id.
The reliability of expert testimony is to be ensured by a requirement that there be “a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. This connection is to be examined in light of “a preliminary assessment” by the trial court “of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue.” Id. The court went on to make some suggestions as to how a court could fulfill its gatekeeping role. These involve whether or not the technique had been subjected to peer review and/or publication, the “known or potential rate of error”, the existence of “standards controlling the technique’s operation”, the technique’s “refutability” or, more simply put, testability, and, finally, an incorporation of the Frye general acceptance in the scientific community as only a factor in the analysis. 509 U.S. at 593, 113 S.Ct. at 2797.

Foret at 1121-1122 (footnotes omitted).

h7At trial, Darwin testified that he used the same basic formula as that which is found in the industry periodical prepared by the ITE Technical Council Task Force. He stated, “[The formula] relates to reaction time, stopping distance, and the width of the intersection, and there’s maybe another variable or two that goes into it.” Thus, contrary to appellants’ assertion, Darwin did utilize a mathematical formula in determining the 4.8 second interval at the light in question. The trial court is accorded vast discretion concerning admission of evidence and its decision will not be reversed on appeal absent abuse of that discretion. O’Neill v. Thibodeaux, 97-1065 (La.App. 3 Cir. 3/6/98), 709 So.2d 962. Defendant’s experts’ testimony was both reliable and relevant. This assignment of error is without merit.

6. The court failed to rectify by proper charge or instruction the prejudicial closing argument that stated that circumstantial evidence only applies in criminal cases.

Courts grant wide latitude to closing argument. Temple v. Liberty Mutual Insurance Co., 330 So.2d 891 (La.1976). The fact that such a statement was briefly mentioned in closing does not constitute reversible error, in fight of the fact that the overall evidence supported the court’s final judgment. This assignment of error lacks merit.

7. The record is incomplete, there being no transcript of the jury charge that could be found in the Record obtained by appellate counsel.

Appellants did not brief this assignment of error; thus, under Rule 2-12.4 of the Uniform Rules of Courts of Appeal, it is deemed abandoned.

|1S8. The cumulation of errors in evi-dentiary rulings, coupled with other circumstances at trial were so prejudicial as to deprive the plaintiffs of their day in court, even if none of the errors considered alone would be sufficient to rise to the level of reversible error. Fromenthal v. Delta Wells Surveyors, Inc., 98-1525 (La.App. 4 Cir. 10/4/00), 776 So.2d 1.

Appellants’ argument is a reference to the other assigned errors addressed herein. Having found no merit to those assignments of error, we likewise find no merit to appellants’ cumulation of errors argument.

Intervenor TEPI has further requested that its intervention be recognized if this Court reverses the judgment of the trial court absolving the City of New Orleans of liability. Since this Court has not reversed that portion of the trial court’s judgment, we deny TEPI’s request.

ASSIGNMENTS OF ERROR BY THE BURNETTS

The Burnetts have filed a separate brief alleging two additional assignments of error.

First, they argue that the trial court erred in issuing an order that acknowledged that State Farm had tendered the limits of its insurance policy on November 21, 2001, where neither the policy itself nor evidence of its terms had been admitted into evidence at trial.

Next, they assert that the trial court erred in ordering that State Farm’s tender of November 21, 2001 stopped the running of legal interest on the principal amount of the judgment, and barred the Burnett plaintiffs from taking any further action to enforce their judgment.

|19On December 28, 2001, State Farm filed an ex parte pleading, which resulted in the issuance of an order by the trial court on January 3, 2002. The order provided:

IT IS ORDERED that this Honorable Court hereby acknowledges that on November 21, 2001 State Farm ... tendered to plaintiff the amount of $12,451.76; hereby holds that legal interest on the principal amount awarded by this Honorable Court in its final judgment in the matter of funds, ceased running as of the date of said tender of funds, and hereby bars plaintiff and plaintiffs’ counsel from attempting to take any additional action regarding the principal amount of the judgment and interest forwarded to date.

The Burnett appellants filed a Motion to Vacate this order. State Farm opposed their motion. The Motion to Vacate was heard on May 10, 2002, and denied by the trial court, without reasons, on May 17, 2002. On June 13, 2002, the Burnett appellants were granted leave to appeal this judgment.

Appellants rely upon Payton v. Colar, 488 So.2d 1271 (La.App. 4 Cir.1986); however, it is completely distinguishable from the case at bar. In that case, no introduction of evidence of the policy limits or evidence of the insurance policy was made at trial. Nine months later, the defendant attempted to introduce the policy into evidence. In the instant case, from the transcript, it is clear that State Farm introduced into evidence as Defendant’s Exhibit Lewis Number 3, without objection, the declaration sheet, a policy information sheet, at trial. This declaration sheet showed the limits of the State Farm policy. For some unknown reason, this exhibit did not later appear in the record. We earlier allowed the record to be supplemented with the policy information sheet. We find that the evidence of the policy terms was admitted into evidence at trial.

laoThe Burnetts argue that there is no evidence to show what interest State Farm owes because of the judgment rendered against its insured.

State Farm tendered the policy limits, plus interest, on November 21, 2001, prior to the issuance of the final Amended Judgment on November 27, 2001. In Remedies v. Lopez, 560 So.2d 118 (La.App. 3 Cir.1990), the Third Circuit stated:

La. R.S. 13:4203 provides that “Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’, which may be rendered by any of the courts.” It has consistently been held that this statute creates a rule of public policy requiring liability insurers to assume responsibility for legal interest on the applicable policy limits from date of judicial demand until paid. See Soprano v. State Farm Mutual Automobile Ins. Co., 246 La. 524, 165 So.2d 308 (1964). This, however, is not the issue presented for our consideration herein. The precise issue presented for our consideration is whether or not the aforementioned statute requires the insurer to assume responsibility for legal interest on the amount of any excess judgment (the amount of the judgment beyond the insurer’s policy limits) from date of judicial demand until paid. We find that it does not.

560 So.2d at 119. An insurance policy may, by supplemental provision, provide greater exposure for legal interest. The policy at issue here provides that legal interest on the excess judgment ends upon tender of the policy limits. Therefore, whether by operation of law, or under the terms of the policy, no additional interest obligation exists on the excess judgment. We therefore find that the trial court’s order of January 8, 2002 was proper.

CONCLUSION

Accordingly, for the foregoing reasons, the judgments of the trial court are affirmed.

| ^AFFIRMED.

      . Rachel Lynn Burnett, James Clayborn Burnett, II, Taylor Brook Burnett, Van Michael Burnett, Loni Michelle Burnett, Jacob Riley Burnett, and Joshua Thomas Burnett.

      . The Zachmanns did not file suit against USAA, Mr. Burnett's uninsured motorist carrier.

      . The trial court issued two judgments dated October 2: one for the Zachmanns and one for the other plaintiffs.

      . The Reasons for Judgment referred to are those pertaining to the Burnetts, Hinojosas, and TEPI.