author: I THIBODEAUX, Judge.

text:
    STATE of Louisiana v. Joseph Michael DIXON.
    No. 03-160.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.
    G. Paul Marx, Lafayette, LA, for Defendant/Appellant, Joseph Michael Dixon.

      Charles Addison Riddle III, District Attorney, 12th JDC, Renee Yvette Roy, Assistant District Attorney, Marksville, LA, for PlaintiffyAppellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   I THIBODEAUX, Judge.

The Defendant, Joseph Michael Dixon, appeals his conviction of second degree cruelty to juveniles, La.R.S. 14:93.2.3, and his sentence of thirty years at hard labor. He asserts that the sentence imposed was excessive in comparison to the nine year sentence imposed on the co-defendant, the mother of the juvenile. Additionally, he maintains that the trial court erred in determining the competency of the child witness, and the sufficiency of the evidence.

For the following reasons, we affirm.

LAW AND DISCUSSION

Sufficiency of the Evidence

Louisiana Revised Statutes 14:93.2.3 provides in pertinent part:

A. (1) Second degree cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen to any child under the age of seventeen which causes serious bodily injury or neurological impairment to that child.
(2) For purposes of this Section, “serious bodily injury” means bodily injury-involving protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death.

At trial, the victim, J.E., testified. The victim stated that he was seven years old and lived in South Carolina with his mom and dad, Tonya and Michael Ballard. The victim testified that he used to live in Marksville with his “real mama,” O. E., and his “step daddy,” Joseph Michael Dixon. When asked if Joseph Michael Dixon was in the courtroom, the victim pointed to the Defendant. According to the victim, he lived in the same house with the Defendant between January and March 1?2002. While living in the same house, the Defendant whipped the victim with an extension cord on the victim’s buttocks, legs, back, and neck. The Defendant made the victim take off his pants and whipped the victim underneath his clothing. When asked how many times this occurred, the victim replied, “[tjwice.” According to the victim, he bled when he was hit with the extension cord.

The victim further testified that the Defendant hit him in the ankle with a walking cane. When asked if the Defendant ever hit him with his fist or his hand, the victim stated that the Defendant hit him with a fist in his stomach and back. When the Defendant hit him in the stomach, the victim’s breath was knocked out of him. The Defendant also held the victim up by his ankles and dropped him to the floor, causing the victim’s stomach and lip to hit the floor. When asked if he bled or got a “busted lip,” the victim replied, ‘Tes, ma'am.” ■

The State asked the victim if he started to bleed or “anything” when he was hit with the walking cane or extension cord. The victim replied, “No, ma‘am. The extension cord.” When the State asked the victim to tell about the extension cord, the victim replied, “When he had hit me it started bleeding.” According to the victim, the bleeding occurred only once, and pictures were taken of his wounds. The victim identified S B as a picture of his legs. The picture shows the victim’s legs with red marks, bruising, and opened wounds. We note that one of the wounds in the photograph looks as though it was bleeding. When asked how “it” felt, the victim replied, “Bad.” The victim also stated that the injuries lasted for more than one month and were present even after he moved to South Carolina.

Next, the victim identified a photograph which showed bruising and what appeared to be (although it is hard to tell) wounds or abrasions on the victim’s buttocks. (State’s Exh. 4). When asked if “this” happened just once or over several | ¡¡times, the victim replied, “Several times.” He also testified that Michael Dixon, the Defendant, did “this” to him with an extension cord.

State’s Exhibit 5 was identified by the victim as a picture of his knees, which appeared to be bruised and swollen. When the State asked the victim what happened to his knees,' the victim answered, “He hit me with his cane on my knee.” The victim testified that it hurt, his knees were swollen, and his walking was affected for one day. State’s Exhibit 6, the victim testified, was a photograph of his neck. According to the victim, “He hit me with the extension cord on my neck.”

Finally, the victim identified S-7 as a photograph of the back of his leg showing wounds and a bandaged area. The victim testified that there was a big sore on his leg that had a bandage on it. When asked how he received the big sore, the victim replied, “He had whipped me with an extension cord.”

The State asked the victim to show the jury where he still had a scar. The court noted that the victim was pointing to his right rear leg just above the knee. The victim also showed the jury other scars on his back that he stated were caused by Michael Dixon hitting him with an extension cord. When asked if he had scars anywhere else, the victim pointed to his behind and stated that his scars were caused by Joseph Michael Dixon hitting him with an extension cord. According to the victim, no one else put scars on him.

On cross, the victim remembered talking with Detective Herbert Guillot of the Marksville Police Department. When asked if he remembered telling Detective Guillot that someone else, besides Michael Dixon, hit him with an extension cord, the victim replied “Yes, sir,” and named his “mama.” According to the victim, his mother hit him one time, but at a different time than Michael Dixon hit him. The victim also stated that his mother made him take his clothes off. When asked if he 14remembered talking with Detective Guil-lot about his aunt and some movies, the victim replied that he did, however, he did not remember whether or not being hit with the extension cord had anything to do with his aunt or the movies. Defense counsel asked the victim if being hit with the extension cord had anything to do with someone showing him something nasty, and the victim replied, “No, sir-.” Although at trial, the victim denied having a cousin that “did something” to him, he remembered previously saying that he did.

When asked on re-direct whether the Defendant ever told him to say something else happened to him, the victim responded, “That was my mama ... [tjhat’s what my mama say.” The victim also testified that his mother did not make him bleed when she hit him with the extension cord, but Michael Dixon did.

Shawn Davis, a Child Protection Investigator, testified that the victim was seven years old while the Defendant was age thirty-eight. She also testified that the Defendant was the victim’s stepfather. Ms. Davis saw the victim’s injuries on March 1, 2002, and identified the photographs introduced as fair representations of the victim’s injuries at that time. According to Ms. Davis, the Emergency Room at Avoyelles Hospital reported this incident.

On cross, defense counsel asked Ms. Davis if she questioned the Defendant as to why he whipped the victim. Ms. Davis stated that she did ask the Defendant and “[he] stated that the child was bad and, you know, he just was bad, you know, a bad child. And that was his method of disciplining him.”

Dr. L.J. Mayeux, the coroner of Avo-yelles Parish, testified as an expert in the field of Family Practice. Dr. Mayeux initially examined the victim on March 5, 2002. Dr. Mayeux described the victim as very intelligent and very friendly. Dr. Mayeux summarized his visit with the victim and his findings as follows:

|r[J.E.] was brought in under the supervision of Ms. Shawn Davis who works for Child Protection. He was brought in the office at eleven forty-five a.m. History was that he had been brought to the emergency room the Friday prior. His mother, Mrs. [O.E.] and her boyfriend, who is stated as Joseph Michael Dixon, alleged that he had fallen while trying to get onto a school bus hurting his knee. The emergency room physician was somewhat suspicious of child abuse and it called in Child Protection Agency. The question with [J.E.], again, [J.E.] was a very friendly young man, very intelligent. He stated to me that he had been severely abused for several months. That most of his whippings had been with either a belt or an extension cord.
In further questioning the child, again, which is part of the examination and the conclusions drawn he states that not only he had been whipped, he had dropped and thrown on his face several times. In cross questioning, re-questioning [J.E.] he was very consistent with his stories. Physical findings of [J.E.]: Starting to be a well developed young male. Weighed seventy-four pounds. He had a hematoma or a swelling on his forehead that measured one inch by one inch. He also had a laceration or a cut of the upper lip. Both the upper and lower lips were markedly swollen. He stated to me this had occurred on Thursday when he was thrown to the floor. Patient also had multiple semi-circular lesions in [sic] the neck. These were basically in the form of an inverted “c”. Which would be consistent with some type of looped instrument. He also had bruises over the entire back and chest consistent with a limb object. From the waist down, this is basically from his belt line down he was completely bruised on the inner and outer thighs, buttock, and legs. This is ... this was in the front, the back, inside the legs, and outside the legs. There were several of these wounds that were large and opened. Meaning they were literally ... there was no skin left. It was down to the bare muscle tissue. The child could hardly ... when he walked in he could barely walk due to the pain caused by the opened wounds. Both of his knees were markedly swollen. The right knee was approximately fifty percent enlarged secondary to swelling. The left knee was approximately thirty percent swollen. Range of motion or the ability to bend the knees was grossly diminished. In fact, he could hardly walk. He stated ... when I asked him what had happened to his knees he states that on Thursday night he had been hit with a black and brown walking cane across both knees for absolutely no reason. Impression at this time was severe | ^physical abuse over a period of time and the time frame came that in examining this young man you could see wounds of all ages. You had fresh wounds, you had bruises that were old, you had active wounds that were basically infected, you had the knees that were swollen. So you had wounds of all age as far as there [sic] time frame. So all these wounds had not occurred in one time frame. The patient was scheduled for an abdominal ultra sound which is a special x-ray to determine any intra abdominal pathology. He was also started on Batroban (s/p) which is an antibiodic [sic] cream to be applied to the opened wounds. He was also asked to be returned to my office for a follow up through the office of Child Protection. These office visits were kept and [J.E.] was seen by me on approximately four additional visits. The last visit being an exit visit of April 18th at which time the scarring was still present although there was no signs of infection and there was no new trauma since he had been placed in Foster Care.

Dr. Mayeux opined that the extension cord introduced as State’s Exhibit 1 was consistent with the semi-circular lesions left on the victim, and the marks on the victim’s knees were consistent with the victim being struck with a cane. When asked if the injuries to the victim were serious, Dr. Mayeux responded:

Yes, ma'am. Very serious. One the inner themselves were serious. The time frame was also concerning and the potential for internal organ injury was also very severe. Had this child not sought and had medical treatment the chance of having ... Had these injuries
of the buttock and the legs gotten secondary infection, infected, those could have potentially been life threatening and since I can’t introduce the record I’d like to read my last paragraph if I may just to show you the severity.

Dr. Mayeux then read the following conclusion from his report:

In summary this child has been physically abused over a period of time. The bruises show aging from several months to very recent. In twenty-nine years of medical training and private practice this is one of the worse abuse cases I’ve seen except for a child being killed. The recommendations start with x-rays, ultrasound, the Batroban (s/p), and this he be placed in ... kept in Foster Care from protection of the individual.

j7When asked if he considered the victim’s injuries as protracted, Dr. Mayeux responded, “Yes, ma'am.” Dr. Mayeux defined protracted as “over a course of time.” Dr. Mayeux further opined that the injuries to the victim caused permanent disfigurement. Later in his testimony, Dr. Mayeux reiterated that the victim could hardly walk when he saw the doctor. Although Dr. Mayeux stated that the photographs introduced into evidence depicted the way the victim looked when he came to his office, Dr. Mayeux indicated that the injuries looked worse when he saw them in person. The doctor explained:

Ms. Roy, I’ll be honest with you. I saw him as I stated the examination started at 11:45 and for the first time in a long time I was basically unable to do anything the rest of the day. It was horrifying to see this young man in person. ... Again, still photography does this no justice. Just the number, the (UNINTELLIGIBLE) and the severity was just beyond imagination.

Finally, Dr. Mayeux testified that the victim’s injuries were not consistent with the victim falling off of the school bus or with a five-year-old cousin hitting him with a switch.

On cross, Dr. Mayeux testified that the victim had no internal injuries, no broken bones, and no sutures. Dr. Mayeux explained that the wounds could not be sewn because they were opened, and the skin had been removed. When defense counsel asked Dr. Mayeux how long it took for the injuries to heal, the following colloquy ensued:

A: Mr. McKay, a child heals so much faster than an adult. We had some injuries that were probably four to six weeks in length because once you get to a certain point of maceration especially in dark skinned people you have hydro pigmentation which changes the pattern, but you had injuries anywhere from four to six weeks of age and as fresh as several days.
Q: When you saw him last on April 18th, 2002, were the wounds essentially healed?
|SA: They were scarred.
Q: Scarred.
A: So scarring is a form of healing, but it’s still not a normal skin appearance.
Q: Okay. I understand. As far as being opened wounds and bruises they had pretty much gone away at that point, is that true?
A: Correct.

The record contains sufficient evidence that the Defendant intentionally mistreated the minor victim pursuant to La.R.S. 14:93.2.3. The victim identified the Defendant in court as his “step-daddy,” Joseph Michael Dixon. In much of the victim’s testimony, the victim referred to the perpetrator as “he” without naming the Defendant specifically. At the beginning of his testimony, however, the victim specifically named the Defendant as his stepfather and specifically named the Defendant as the perpetrator in portions of his testimony. Since no other male figure had been named as a possible perpetrator (the victim’s mother had been named also), the Defendant was sufficiently identified as a perpetrator.

The Defendant claims that the State merely established that he spanked the victim, “but did not exclude the probability that the mother of the child imposed the injuries.” He also adds, “[t]o the extent that the child’s testimony provided a basis for a determination of that issue, the trial court’s failure to specifically determine the child’s competency is a fatal error in this record.” However, to the extent that the Defendant is arguing that the evidence was insufficient to prove he, rather than the mother, caused the injuries to the victim, the claim lacks merit. The victim’s testimony, even if found to be inadmissible, must be considered in reviewing the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992). Even if the victim’s mother whipped the victim and caused some injuries, the evidence and the ^testimony of the minor child and Dr. Mayeux were sufficient to prove that the Defendant caused the injuries specifically noted by Dr. Mayeux.

Considering the above, we find that the evidence was sufficient to prove the Defendant intentionally mistreated the victim and caused injuries. Although the Defendant told Ms. Davis, the Child Protection Investigator, that he was disciplining the child, the Defendant does not raise that defense on appeal. The Defendant’s actions, even if considered discipline, did not constitute reasonable discipline. See La. R.S. 14:18(4).

The final issue to be resolved is whether the State proved the Defendant caused serious bodily injury. Louisiana Revised Statutes 14:93.2.3 defines serious bodily injury as “bodily injury involving protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death.” Because La.R.S. 14:93.2.8 was recently enacted (in 1999), defense counsel suggests that this court look to the definition of serious bodily injury set forth in second degree battery, La.R.S. 14:34.1, and the jurisprudence interpreting that definition. Defense counsel suggests that La.R.S. 14:93.2.3 contemplates permanent injury.

Neither second degree battery nor second degree cruelty to a juvenile defines protracted as a permanent or lifetime condition as proposed by the Defendant. Webster’s Ninth New Collegiate Dictionary defines protract as “to draw forward,” “to delay, defer,” “to prolong in time or space: continue.” Thus, there is no requirement that the injuries inflicted upon the victim must be permanent, lifelong, or chronic as suggested by the Defendant.

The record in the present case supports a conclusion that the victim suffered protracted impairment of a bodily function as well as obvious disfigurement 11t1and possibly a substantial risk of death. Dr. May-eux testified that when he saw the victim, the victim was completely bruised from the waist down, on his inner and outer thighs, buttocks, and legs. Several of the wounds were large and opened, with literally no skin left. The victim could barely walk because of the. pain from the opened wounds. Both knees were swollen, with the right knee being approximately fifty percent enlarged. The victim’s ability to bend his knees was “grossly diminished,” and he could hardly walk. Dr. Mayeux saw fresh wounds as well as old wounds on the victim. Some of the wounds were infected, and, if secondary infection had set in, the wounds could have been life-threatening. Additionally, the record reflects that at trial, seven months after the victim’s initial visit with Dr. Mayeux, the victim showed the jury scars that were still present on his body. Finally, Dr. Mayeux described the victim’s physical condition as one of the worst cases of abuse he had seen. Dr. Mayeux stated that it was horrifying to see the victim in person and, after seeing the victim, he was unable to do much the rest of the day. Considering Dr. Mayeux’s testimony, we find that the jury did not err in finding the Defendant inflicted serious bodily injury upon the victim.

For the foregoing reasons, the evidence was sufficient to support the jury’s verdict of second degree cruelty to a juvenile.

Excessiveness of Sentence

The Defendant claims he received an excessive thirty-year sentence while the victim’s mother, who pled guilty to second degree cruelty to a juvenile, received only a nine-year sentence. For the offense of second degree cruelty to a juvenile, the Defendant could have been sentenced at hard labor for not more than forty years. As stated, the trial court sentenced the Defendant to thirty years at hard labor to run consecutive to any other sentence previously imposed. Since the offense Inis a crime of violence, the trial court also stated that the sentence would not be subject to diminution for good behavior. .

Prior to sentencing, the State withdrew its motion to have the Defendant sentenced as a habitual offender. The trial court noted that in preparing for sentencing, it had reviewed the entire record of the proceeding, the Pre Sentence Investigation Report, correspondence sent by the mother of the victim as well as the applicable law and jurisprudence.

The Pre Sentence Investigation Report (PSI) confirms that the Defendant was previously arrested for second degree murder and pled guilty to manslaughter. The Defendant was also arrested on two counts of aggravated assault but found not guilty. Subsequently, the Defendant was charged with aggravated battery and pled guilty to simple battery. According to the P.S.I., the Defendant is a second felony-offender. As noted earlier, the State withdrew its motion to have the Defendant sentenced as a habitual offender.

The sentence imposed on the co-defendant has no bearing on the sentence imposed upon the Defendant. “[I]t is well settled that a sentence must be individualized as to each defendant.... State v. Williams, 677 So.2d 692 (La.App. 3 Cir.1996); State v. Lemelle, 502 So.2d 130 (La.App. 3 Cir.1987).” State v. Lofton, 97-00383 (La.App. 3 Cir. 10/8/97); 701 So.2d 712, 715, writ denied, 98-0389 (La.6/5/98); 720 So.2d 679. The disparity in a sentence imposed upon co-defendants “is only a factor to be considered along with all other appropriate considerations when there is no reasonable basis in the record for the disparity. State v. Sims, 410 So.2d 1082 (La.1982).” State v. Quimby, 419 So.2d 951, 962 (La.1982). Considering the Defendant’s violent criminal history and the dominant role he played in the victim’s I t «abuse, the trial court did not abuse its discretion in imposing a sentence upon the Defendant that is longer than the sentence imposed upon the victim’s mother.

Furthermore, the reasons given by the trial court and the record as a whole support the sentence imposed. As stated in State v. Cook, 95-2784, p. 3 (La.5/31/96); 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), “The only relevant question on review ... [is] ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ State v. Humphrey, 445 So.2d 1155, 1165 (La.1984) (citing State v. Williams, 412 So.2d 1327 (La.1982)).” Thus, the imposition of a thirty-year sentence was not an abuse of discretion.

Competency of the Child Witness

The Defendant claims the trial court erred in failing to determine the competency of the victim, a child witness, when the victim was unresponsive to questions regarding his ability to tell the difference between the truth and a lie. Although the trial court did not formally rule on the victim’s competency, the trial court nevertheless allowed him to testify. Defense counsel did not question the child further nor did he object to the child testifying. Thus, the Defendant has waived any objection to the trial court’s admission of the victim’s testimony and is precluded from assigning this error on appeal. La. Code Crim.P. art. 841. State v. Davis, 95-801 (La.App. 3 Cir. 12/6/95); 664 So.2d 821; State v. Dickerson, 01-1287 (La.App. 5 Cir. 6/26/02); 822 So.2d 849, writ denied, 02-2108 (La.2/21/03); 837 So.2d 627.

CONCLUSION

For the foregoing reasons, the Defendant’s conviction for second degree cruelty to juveniles and his sentence of thirty years at hard labor are affirmed.

AFFIRMED.

      . Pursuant to La.R.S. 46:1844(W), the victim's initials will be used to protect his identity-


source: Caselaw Access Project

author: J^FITZSIMMONS, J.

license: Public Domain

text:
    Colin TURNER, et al. v. MILLER TRANSPORTERS, INC. Edward E. Skelton, et al. v. Miller Transporters, Inc.
    Nos. 2002 CA 2278, 2002 CA 2279.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Brady D. King, II, D. Brian Allen, Monroe, C. Michael Hart, Baton Rouge, Counsel for Plaintiffs-lst Appellants and Inter-venors Colin Turner, et al.
    Bruce Kuehne, Baton Rouge, Counsel for Intervenors Michael R. Taylor, et al.
    Craig J. Robicheaux, Richard F. Knight, Bogalusa, Harold D. Miller, Jackson, MS, Counsel for Defendants-2nd Appellants Miller Transporters, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

Turner Transporter, Inc., et al., surface freight equipment transporters (lessors), filed suit alleging an intentional breach of contract against Miller Transporters, Inc. (Miller), a certified motor carrier. Lessors demanded compensatory and punitive damages, as well as attorney fees. Following a denial and dismissal of their claims at the trial court level, lessors appealed the judgment. Miller answered the appeal. The judgment of the trial court is affirmed, in part, and reversed, in part.

I.

BACKGROUND

Lessors comprise approximately one hundred fifty private owners/operators of tractors and/or power units engaged in the long hauling trucking industry. Pursuant to the terms of standardized written lease agreements, entitled “EQUIPMENT LEASE AND TRANSPORTATION AGREEMENT,” lessors provided Miller with truck equipment and drivers to transport bulk commodities throughout the United States. The numerous equipment leases made the subject of this lawsuit were in operation at different times between April 18, 1987 until suit was filed on April 18,1997. Lessors claim Miller intentionally breached the terms of the lease agreements when Miller deducted sums for the payment of liability insurance premiums from lessors’ payments, when Miller failed to compensate plaintiffs for deadhead or non-revenue mileage, and when Miller failed to compensate lessors a percentage of accessorial charges.

The equipment leases provided that the leases would “be governed by and interpreted under the laws of the State of Mississippi.” Pursuant to a pre-trial order issued on November 8, 2001, the court ruled that Mississippi’s statute of limitations applied, ascribing a four-year limit for plaintiffs’ claims. That same order also declared the deadhead mileage provisions in the equipment leases to be unclear |4and ambiguous, thus permitting the introduction of parol evidence. On December 19, 2000, the court ruled that plaintiffs with claims in excess of $50,000.00 would be entitled to a jury trial; however, those plaintiffs whose claims did not exceed the sum of $50,000.00 would try their cases before the court.

On May 3, 2001, the court granted Miller a partial summary judgment denying lessors a percentage of accessorial charges. Thereafter, on May 22-24, 2001, the case was tried before a jury. The jury determined that although Miller had breached its obligation to bear all costs of liability insurance premiums, lessors had “no right to recover damages with respect to costs of liability insurance premiums as a result of waiver, estoppel, or accord and satisfaction!/]” The jury also did not find Miller had breached its obligation to pay deadhead miles. Addressing those claims that did not exceed $50,000.00, the trial judge’s determination varied from the jury’s findings. The trial judge concluded that lessors had been damaged by Miller’s back charge of insurance premiums to the lessors; however, it limited recovery to Mississippi’s four-year statute of limitations. Moreover, the trial judge held that any party who had renewed a contract with Miller had waived, or was estopped from, the right to his or her claim. Thus, the trial judge determined that only those entities that had an initial contract for one rig within the preceding four years possessed a viable claim. The judge agreed with the jury that Miller had not breached its obligation to pay deadhead miles.

On appeal, lessors raise numerous issues associated with their claims for insurance premium reimbursements and deadhead mileage payments. Lessors allege error by the jury and/or the court in the court’s:

(1) allowance of the introduction of pre-lease information packets, insurance memorandum and 30-day claim period;
|B(2) finding that lessors’ insurance claims were waived by virtue of estop-pel, waiver, or accord and satisfaction;
(3) finding that insurance premiums had been improperly deducted to only those lessors who had never executed more than one equipment lease or never added a tractor to existing lease;
(4) failure to instruct the jury that the deadhead mileage provision was ambiguous after so finding;
(5) improper denial of lessors’ claims for deadhead mileage;
(6) finding that the applicable prescriptive period was provided by Mississippi law as opposed to Louisiana law; and
(7) grant of Miller’s motion for summary judgment on the skimming claim.

Miller has responded to the appeal with assertions that:

(1) the court failed to recognize that the jury had in actuality, adjudicated all of lessors’ claims;
(2) lessors claims were preempted by federal law, limited to injunctive relief, and limited to eighteen months from the time of the offensive conduct;
(3) the court erred in its failure to admit extrinsic evidence, such as the pre-lease information packets and insurance mem-oranda, to prove an ancillary agreement; and
(4) the court erred in holding that some lessors possessed cognizable claims.

II.

| INSURANCE CHARGE-BACKS

The Equipment Leases

At trial, four prototypes of the standard “EQUIPMENT LEASE AND TRANSPORTATION AGREEMENT” were introduced into evidence. The forms drafted by Miller represented the equipment lease agreements between lessors and Miller spanning the period between 1983 and the time of the trial date. Each of the introduced forms contained the following identical language:

Lessee shall procure and maintain in full force and effect liability insurance for injury to persons or property arising out of the use or operation of the Equipment in at least the amount required by the Interstate Commerce Commissioner the Department of Transportation and any rule or regulation issued thereunder for the protection of the public.
Lessor agrees at all times to keep in force insurance covering comprehensive loss of, or damage to, the Equipment, including, but not limited to, collision, upset, fire, and theft; and Lessor further agrees to release and hold harmless Lessee, its agents and employees, from and against any such loss or claim. Lessor further agrees to provide any other insurance coverage required-for the operation of the Equipment, including bobtail coverage. Lessor shall be solely responsible for carrying and providing workers compensation insurance on all drivers and other employees of Lessor who are connected with or perform any service under this Agreement.

Section 16 of the lease agreement stated that the “lease shall be governed by and interpreted under the laws of the State of Mississippi.” Prior to trial, counsel stipulated to that provision. Miller contended that its written obligation in the lease agreements to “procure and maintain” liability insurance that covers the lessors did not, thereafter, preclude Miller from deducting payments for the insurance premiums from the settlement sums paid to the lessors.

Federal Law

Leases between regulated carriers" and owner-operators are subject to federal law. 49 U.S.C. § 14102, et seq. Prior to January 1, 1996, the Interstate Commerce Commission (ICC) had regulated licensed motor carriers. Owner-Operator Independent Drivers Association, Inc. v. New Prime, Inc., 192 F.3d 778, 781 (8th Cir.1999), cert. denied, 529 U.S. 1066, 120 S.Ct. 1671, 146 L.Ed.2d 480 (2000). Pursuant to the authority of the ICC to issue regulations that govern owner-operator leases of equipment to authorized carriers, the regulations located in 49 C.F.R. § 376 were promulgated. See 49 U.S.C. § 14102. With the enactment of the Interstate Commerce Commission Termination Act (ICC-TA) of 1995, the motor carrier regulatory functions and responsibilities were transferred from the ICC to the Department of Transportation and the Surface Transportation Board. 49 U.S.C. § 13501.

Code of Federal Regulations, Title 49, Part 376.12(d), mandates that compensation be specified in the written lease agreement. Pursuant to 49 C.F.R. § 376.12(h), which is entitled “Charge-back items,” the regulation expressly states:

The lease shall clearly specify all items that may be initially paid for by the authorized carrier, but ultimately deducted from the lessor’s compensation at the time of payment or settlement, together with a recitation as to how the amount of each item is to be computed. The lessor shall be afforded copies of those documents which are necessary to determine the validity of the charge. (Underlining supplied.)

Equipment Agreements after the ICCTA

Prior to 1996, 49 U.S.C. § 11705(b)(2) had provided liability “for damages” against a “common carrier,” by relegating dispute resolution between private carriers and owner-operators to the administrative ICC. See Owner-Operator Independent Drivers Association, Inc., 192 F.3d at 780. Civil enforcement actions involving contract carriers were limited to injunctive relief. With the [Spassage of the ICCTA, 49 U.S.C. § 14704 replaced 49 USC § 11705. Section 14704(a)(2) expanded damage actions against “a carrier or broker,” thereby eliminating the distinction between common and contract motor carriers. Thus, section 14704(a)(2) created a federal private right of action for damages in commercial disputes involving a violation of the regulations of the ICCTA. The passage of this enabling damage claim provision impacts the causes of action in the instant case because it raises the question of federal preemption as it applies to 49 C.F.R. § 376.12(h).

The police powers of the states are not to be superseded by federal regulation absent a clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Preemption claims turn on Congress’s intent. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Company, 514 U.S. 645, 655, 115 S.Ct. 1671, 1677, 131 L.Ed.2d 695 (1995). Preemption may result not only from the enactment of a federal statute by Congress, but also pursuant to a federal agency’s action within the scope of its congres-sionally delegated authority. Louisiana Public Service Commission v. F.C.C., 476 U.S. 355, 368-369, 106 S.Ct. 1890, 1898-1899, 90 L.Ed.2d 369 (1986) (citing Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)).

Although the purpose of the federal regulations adopted pursuant to the Motor Carrier Act, and its successor ICCTA, was not to govern the terms for |9which the owner-operators and carriers would be allowed to negotiate, the aim of the regulations was to compel disclosure of the contract terms between them. The ICC’s objective in imposing regulatory lease requirements for motor carriers was to insure truth-in-leasing by fostering disclosure. Tousley v. North American Van Lines, Inc., 752 F.2d 96, 101 (4th Cir.1985), (citing “Lease and Interchange of Vehicles,” Ex Parte No. MC-43 (Sub-No.7), 131 M.C.C. 141, 156-08 (1979)).

Miller breached the explicit, federally regulated requirement to delineate all charge-backs. Miller’s breach contravened the express provision of the federal mandate of 49 § C.F.R. 376.12(h) and the purpose for which it was promulgated. The provision of the lease agreements that Mississippi law would govern the interpretation of the contract cannot supersede the federally enacted cause of action for damages by lessors for Miller’s breach of the specific federal terms that regulate motor carriers. Thus, any claims for damages related to a violation of 49 C.F.R. § 376.12(h), that arose on or after January 1, 1996, fall under the aegis of federal law, rather than the law of Mississippi. Given the clear wording of the ICC regulation relative to charge-backs, the jury and trial court did not err in their finding that Miller had breached the contracts federally mandated requirement to disclose all sums of insurance premium charge-back payments in the written lease agreement. However, any waiver provisions of Mississippi are inapposite to this federal requisite. Therefore, the jury and trial judge legally erred in their interpretations that lessors waived their claims with recurrent contracts; and, that there was tacit acceptance of the deducted insurance premium amounts with payments or settlements.

Equipment Agreements prior to ICCTA

Congress failed to address the issue of the retroactivity, vel non, of the new cause of action for damages pursuant to 49 U.S.C. § 14704. Section 14704(a)(2) potentially increases a party’s liability for past conduct, or relegates new | ^responsibilities with respect to finalized transactions. The imposition of liability for conduct where none appeared to have previously existed exceeds a mere change in the forum in which a pending dispute could be brought. As noted above, the legislation created a cause of action and damages which were not contained in the predecessor statute. Thus, the scope of the amendment is extended beyond a mere procedural change. Given the substantive impact of section 14704, it cannot be deemed to be retroactive in its application. See Landgraf v. USI Film Products, 511 U.S. 244, 363-264, 114 S.Ct. 1483, 1496, 128 L.Ed.2d 229 (1994). Accordingly, a federal private right of action for damages based on a breach of the contract is limited to those contracts in existence on and after January 1, 1996, when ICCTA became effective. To the extent that federal law does not preempt state law, the parties were free to agree that the laws of Mississippi would govern and interpret the lease agreements. MS-ST § 75-1-105. Accordingly, any claims for damages incurred before January 1,1996, would be premised on Mississippi law to which the parties had contractually agreed.

The jurisprudence of Mississippi holds that issues involving the construction of contracts constitute questions of law allotted to the court’s interpretation, rather than questions of fact assigned to the fact finder. Parkerson v. Smith, 817 So.2d 529, 532 (Miss.2002). Appellate courts employ a de novo standard of review of the construction of a contract. The terms provided in the equipment leases under review are unequivocal in the placement of the duty on Miller to “procure and maintain” liability insurance coverage for operators of the equipment. In the following paragraph, the lease requires lessors to provide comprehensive coverage, as well as any other insurance required for the operation of the “Equipment,” |,including bobtail coverage. Nowhere in the lease agreement is there any verbiage even suggesting that lessors would be responsible for payment of any portion of the liability insurance premiums. A clear and unambiguous contract is to be enforced as written. Delta Pride Catfish, Inc. v. Home Insurance Company, 697 So.2d 400, 404 (Miss.1997). The jury and the trial court did not err in their conclusions that Miller had violated the terms of its equipment lease agreements with lessors by unilaterally charging lessors a portion of the premium sums it had agreed to pay. This court’s affirmation that the lease provision was breached renders moot lessors’ assignment of error that the pre-lease packets and insurance memoranda were erroneously allowed into evidence at trial.

Statute of Limitations/Prescription

Lessors maintain that Louisiana law should determine the viable prescriptive period for advancing claims associated with the alleged breach of lease contract. The parties’ contractual agreements provided that the lease should be “governed by and interpreted under” Mississippi law. Miller contends that Lessors were bound by a thirty-day period provided in the lease agreements or, alternatively, by the statute of limitations prescribed by Mississippi.

Section 18 of the equipment leases provided, in relevant part:

TIME FOR PRESENTATION OF CLAIMS-LIMITATIONS AND WAIVER;
Lessor shall present to Lessee all claims for compensation due for services performed hereunder, and all claims for mileage or other reimbursements, within thirty (30) days from the time such services are provided. Lessor agrees that failure to present any claim within said thirty (30) day period shall excuse Lessee’s obligation to pay said claim and preclude Lessor from any further attempts at collection, notwithstanding the existence of any other statute of limitations or provisions herein.... ”

We interpret and apply this provision for a thirty-day limitation period as the initial time within which a lessor is required to file a claim with Miller. Lessors’ initial claims for compensation for motor vehicle equipment hauls were not an hgissue litigated by the parties in the instant case; therefore, the thirty-day period is not germane.

In considering whether Louisiana prescription or the Mississippi statute of limitations applies, it has been noted that Louisiana generally permits parties to select the law that will determine the outcome of disputes involving a contract. Verdine v. Ensco Offshore. Company, 255 F.3d 246, 250 (5th Cir.2001). The provisions of La. C.C. art. 3549 establish general guidelines to enable conflict of law resolution. Article 3537 primarily addresses those circumstances in which no state has been previously selected to govern a contract or legal relationships. Thereafter, La. C.C. art. 3540 states: “All other issues of conventional obligations are governed by the law expressly chosen or clearly relied upon by the parties, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under Article 3537.” Thus, the burden rests with lessors to demonstrate that the law of Louisiana would have been applicable to the issue under article 3537 and that the chosen law of Mississippi contravenes the public policy of Louisiana. Lessors have failed to suggest a public policy that would be violated by the application of the Mississippi statute of limitations pursuant to the governance of the contract under Mississippi law. Nor is this court aware of any adversely impacted public policy by the application of Mississippi law. The trial court did not err in its application of the Mississippi statute of limitations to lessors’ claims for breach of contract. It is uncontested that a four-year statute of limitations applies pursuant to MS-ST § 75-2A-506. Accordingly, the Mississippi four-year statute of limitations, and not Louisiana or federal law, would bar those claims that arose before April 18,1993.

11RWaiver

We next address the issue of waiver of claims for breaches occurring within Mississippi’s extant window of procedural viability, i.e., between April 18, 1994 and January 1, -1996. Waiver of a right to which one is otherwise entitled is recognized by the Mississippi courts. Canizaro v. Mobile Communications Corporation of America, 655 So.2d 25, 29 (Miss.1995). A waiver presumes awareness and the intentional relinquishment through acts or omission of a right. It contemplates modification or change of an existing right or of the terms and conditions of a contract that results in the voluntary surrender of a right. Ewing v. Adams, 573 So.2d 1364, 1369 (Miss.1990).

The evidence presented at the trial of the instant matter reveals that the liability insurance premium sums that were charged back to lessors by Miller were reflected on the lessors’ monthly settlement sheets. Thus, lessors knew shortly after entering into each lease agreement with Miller that the charge-backs had transpired. Lessors maintain that they verbally complained to the representatives of Miller about the breach throughout the years; however, they simultaneously continued to operate under, and renew, their lease agreements. A waiver may be inferred from the actions and conduct of the parties. Brent Towing Company, Inc. v. Scott Petroleum Corporation, 735 So.2d 355, 359 (Miss.1999). The waiver by the subsequent conduct of the parties of a requirement that a modification be in writing applies to transactions governed by the Mississippi Uniform Commercial Code. Canizaro, 655 So.2d at 29-30. Expressions of displeasure, without enforcement of one’s rights, do not rise to the level of action that prevents acquiescence and waiver of the right to object. Vice v. Leigh, 670 So.2d 6, 10 (Miss.1995). Moreover, a contracting party, who is aware of a breach by the other party, waives the breach if he receives money in the performance of the contract. Brent Towing Company, Inc., 735 So.2d at 359.

u We find no manifest error in the trial court’s conclusion that lessors, who had evidenced acquiescence in prior equipment leases, waived their right to object to the insurance premium charge-backs in subsequent lease agreements. In this regard, the jury erred in its failure to exclude those lessors who might not have previously acquiesced from its determination that there had been a waiver, accord and satisfaction, or estoppel. That portion of the jury verdict is hereby reversed.

III.

DEADHEAD MILES

Lessors claimed that Miller additionally breached the contract agreements by its failure to honor its obligation to compensate for “deadhead” miles. Miller responded that lessors were seeking compensation for miles connected with a load, which was expressly excluded pursuant to the terms of the lease agreements.

The stipulation that Mississippi law governed the interpretation of the contract directs this court to look to Mississippi jurisprudence and statutory guidance. At the outset, it is observed that any claims that Miller violated its contractual agreements to compensate lessors for “deadhead” miles would be subject to Mississippi’s four-year statute of limitations. MS-ST § 75-2A-506. With respect to those equipment contracts that would fall within the viable four-year period, Schedule “B” of each lease agreement stated:

Compensation for empty mileage, if any, shall be the responsibility of Lessor (owner). If, however, Lessor is to be compensated for empty mileage in any instance, the basis of such compensation shall be set forth in a separate memorandum agreement to be made a part of the Lease, otherwise Lessor (owner) shall have no basis for compensation for empty mileage.

Thereafter, Schedule “C” of the same agreements stated: “Lessee will pay Lessor .78 cents per mile for all deadhead (non-revenue) miles. Note: Any miles connected in any way with a load are not considered deadhead miles.”

|15The trial court ruled that the clause in Schedule “C” relating to payment for deadhead miles was ambiguous; therefore, parol evidence was allowed at trial. Mississippi jurisprudence holds that issues involving the construction of contracts constitute questions of law allotted to the court’s interpretation, rather than questions of fact assigned to the fact finder. Parkerson, 817 So.2d at 532. Appellate courts in both Louisiana and Mississippi employ a de novo standard of review of the construction of a contract. Warwick v. Gautier Utility District, 738 So.2d 212, 215 (Miss.1999); Montz v. Theard, 2001-0768, p. 5 (La.App. 1 Cir. 2/27/02), 818 So.2d 181, 185. Intent should first be considered pursuant to an objective consideration of the four corners of the contract to the exclusion of parol or extrinsic evidence, whenever possible. Cooper v. Crabb, 587 So.2d 236, 239 & 241 (Miss.1991). Only if the meaning of a term is unclear or ambiguous should the court go beyond the text to permit extraneous evidence in the ascertainment of the parties’ true intent. Heritage Cablevision v. New Albany Electric Power System of City of New Albany, Mississippi, 646 So.2d 1305, 1313 (Miss.1994); Delta Pride Catfish, Inc., 697 So.2d at 403-404. Moreover, vague or ambiguous terms are construed more strongly against the party preparing the instrument. Thornhill v. System Fuels, Inc., 523 So.2d 983, 998 (Miss.1988).

In the matter at hand, the lease agreements contained no definition of “deadhead,” and the notation in the second sentence of Schedule “C,” which referenced deadhead mileage, provided only limitations. Given the lack of clarity of the parameters or interrelationship of the terms “non-revenue” and “in any way connected,” as they refer to “deadhead,” this court attaches no legal error to the |1fitrial court’s ruling that the intended meaning of coverage for deadhead mileage could not be construed absent extrinsic evidence.

Herschel D. Townsend, an owner-opera-torfiessor of a truck, testified that the truck ■ industry’s definition of deadhead miles was synonymous with “empty” miles, i.e., miles during which no load was transported. In contrast, William H. Roberts, the recently retired executive vice-president of Miller, who had drafted the contract clause that referenced deadhead miles, distinguished the term “empty” from “deadhead.” To qualify as deadhead, or nonproductive, miles, Miller stated that the trucker had to perform work for the company for which no revenue was generated. The travel could not involve any movement for a shipper.

The language in Schedule “B” expressly gave the lessors the financial responsibility for “empty” miles in the absence of a separate written agreement. Schedule “C,” which mentions “deadhead,” does not refer to “empty,” instead, it contains restrictive language, such as “non-revenue” and excludes compensation for travel that is “connected in any way with a load.” Eddie Smith, manager of Miller’s owner-operator division, stated, via affidavit, that the pre-lease information packages were distributed to lessors beginning on April 19, 1989. Lessors challenge the receipt of copies of the pre-lease packages; however, the pre-lease information packages’ reference to deadhead and empty miles serves to elucidate Miller’s intent. The package explicitly informs the lessors that the lease agreement specifies a percentage of “compensation ... per mile for all deadhead 117(non-revenue) miles. This should not be interpreted to mean normal empty miles associated with a load.”

Given the initial exclusionary language in Schedule “B,” the restrictive terminology in Schedule “C,” and the pre-lease packages, as well as the testimony by the witnesses, we do not attribute any error to the jury and court’s implicit conclusion that the lease did not provide that “empty” miles would be compensated.

IV.

ACCESSORIAL CHARGES

The court granted Miller a partial summary judgment on the issue that lessors’ compensation did not include a portion of accessorial charges billed to the shippers. Louisiana and Mississippi courts conduct a de novo review of appeals from a summary judgment, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Titus v. Williams, 844 So.2d 459, 464 (Miss.2003); Sanders v. Ashland Oil, Inc., 96-1751, p. 7 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/3197), 703 So.2d 29.

As with the previous allegations of breach of contract, the Mississippi four-year statute of limitations precludes any claims for breaches that occurred prior to April 18, 1993. Addressing the remaining contracts, the terms of all equipment lease agreements confected after September 1992 stated in “Schedule ‘B’

In the event the owner of a tractor (Lessor) desire[s] to lease his tractor to Lessee (carrier) andit is driven by him or his employee, the following shall apply:
(1) Compensation to Lessor (owner) shall be_percent (_%) of gross line-haul revenue excluding any built in flat rate cleaning charge collected by Lessee (carrier) for |iseach load pulled on a dedicated trailer with no backhaul involved.
(3) Lessor (owner) shall receive__ percent (_%) of the gross line-haul revenue, excluding any built in flat rate cleaning charge collected by the lessee (carrier), for all other loads hauled. (Emphasis supplied.)

The federally enacted regulations enunciated in 49 C.F.R. § 376.12(e) direct in pertinent part: “The lease shall clearly specify the responsibility of each party with respect to ... accessorial services. ... The lease shall clearly specify who is responsible for loading and unloading the property onto and from the motor vehicle, and the compensation, if any, to be paid for this service.”

Any alleged breaches of contract related to accessorial charges that occurred on or after January 1, 1996, the effective date of the ICCTA, are subject to a federally based cause of action for damages. Federal regulations require that accessorial charges be delineated. If the above referenced lease clause did not, in fact, refer to accessorial charges, as Miller purports, the lack of inclusion of a provision in the lease agreements related to accessorial charges would be anathema to, and in direct violation of, 49 C.F.R. § 376.12(e).

Distinguishably, federal law has not preempted interpretation of the terms of an agreement; therefore, we look to Mississippi law pursuant to the equipment lease agreements. Again, this court is presented with terminology for which no definitions have been provided within the agreements. There is no description or list of “accessorial charges”; nor is the critical phrase, “gross line-haul revenue,” circumscribed.

Reviewing the contractual agreements historically, it is noted that until 1992, the compensation term of the leases stated that lessors were not entitled to a portion of the accessorial charges, unless it was specifically stated in the contract. Beginning in 1992, the new lease forms failed to include the general exclusionary |1fllanguage relative to accessorial charges. In its memorandum in support of the motion for partial summary judgment, the manager of the owner-operator division of Miller maintained that the language had been inadvertently omitted. He characterized accessorial charges to include services such as additional pumping services and time waiting to unload beyond the contracted for time. He also attested to Miller’s never having paid a lessor part of the revenue from an accessorial charge, unless such had been specifically provided for in a schedule to the lease agreement. Yet, Schedule “B” of the lease agreement forms after 1992 failed to state that lessors would not be entitled to accessorial charges unless they were itemized. Instead, Schedule “B” entitled lessors to a specific percentage of the “gross line-haul revenue.” The single itemized exclusion was the flat rate cleaning accessorial charge to which lessors were definitely not entitled.

The contract was drafted by Miller, and any ambiguities must be construed against it. Wade v. Selby, 722 So.2d 698, 701 (Miss.1998). A fortiori, lessors cannot be penalized by Miller’s inadvertent omissions from the written contract. The word “gross” is defined as “general, broad: consisting of an overall total before any deductions .... ” Webster’s New Encyclopedic Dictionary, 441 (3d ed.1994) (letters and numbers deleted). A plain reading of the term “gross line revenue” supports the inclusion of any and all sums associated with charges to the shipper. It would, therefore, encompass any accessorial charges not expressly excluded. Miller has not demonstrated through its supporting documentation that “gross line-haul revenue” did not entail accessorial charges other than the flat rate cleaning charge.

Notwithstanding the presence of a violation of the lease agreements, any breach of the accessorial charges provision of the equipment leases that occurred between April 18, 1993 and January 1, 1996 was waived in the same manner that lessors waived their claims against insurance charge-backs. Canizaro, 655 So.2d at 25, 29-30; Brent Towing Company, Inc., 735 So.2d at 359. Thus, if lessors had renewed prior lease agreements, thereby exhibiting acquiescence to Miller’s failure to pay accessorial charges, the lessors concomitantly waived their right to object to the accessorial charges violation in • the subsequent leases. As such, the summary judgment is reversed with respect to those claims for breach of contract that arose on or after January 1, 1996, and for those claims between April 18, 1993 and January 1, 1996 that were not waived by acquiescence to Miller’s violation based on prior identical written agreements. Summary judgment in favor of Miller is affirmed for the remaining equipment leases.

V.

JURISDICTIONAL AMOUNTS

Finally, Miller filed a pre-trial motion to strike plaintiffs’ jury demand. The trial court ordered that that those persons whose claims did not exceed $50,000.00 would not be entitled to a jury trial; whereas, those plaintiffs whose claims exceeded $50,000.00 would be entitled to trial by jury- In its answer to the appeal, Miller now posits that all claims were, in fact, tried before a jury. Miller claims the trial court legally erred in two respects: (1) its failure to recognize that as long as any claims in good faith exceeded the jury trial threshold, the plaintiffs’ claims were triable by jury; and (2) the failure of the court to specify prior to trial which claims were either above or below the $50,000.00.

Given this court’s conclusion that the jury erred in failing to recognize that a waiver would not apply to those lease arrangements in which the lessors had not previously acquiesced to the insurance premium charge-backs, the issue of the court’s review of a portion of those claims is mooted. In all other respects, the court findings tracked the jury verdict; therefore, any purported procedural misstep is immaterial to the outcome of this case and needs no further consideration.

| ^DECREE

This court reverses the portion of the trial court’s judgment holding that breaches of the insurance charge-back provision of equipment lease agreements after January 1, 1996 were waived. With respect to lease agreements wherein Miller breached its contractual duty to assume ultimate financial responsibility for liability insurance between April 18, 1993 and January 1, 1996, the portion of the jury verdict and judgment that ascribed a waiver, accord and satisfaction, or estoppel to those lessors who had not previously evidenced acquiescence in the charge-backs, is reversed.

Summary judgment by the court in favor of Miller on the basis that lessors’ compensation did not include a portion of accessorial charges for alleged breaches on or after January 1, 1996, is reversed. Summary judgment in favor of Miller for claims of breaches of the accessorial charges provisions of the lease agreements between April 18, 1993 and January 1, 1996, is reversed for those claims not waived by lessors as a result of prior acquiescence with contract renewals.

The case is remanded for a hearing to ascertain which individual petitioners’ claims do not exceed $50,000.00, and would, therefore, not be subject to trial by jury on the issues of accessorial charges and insurance charge-backs, and for further action consistent with this opinion. In all other respects, the trial court judgment is affirmed. Costs associated with this appeal are to be divided such that one-half of the costs is assessed to lessors and one-half of the costs is assessed to Miller.

AFFIRMED, IN PART; REVERSED, IN PART; REMANDED.

      . 49 U.S.C. § 14102 enables the Secretary of Department of Transportation to promulgate regulations which govern owner-operator leases of equipment to authorized carriers. That statute provides in pertinent part:
      "(a) General authority of Secretary. The Secretary [of Transportation] may require a motor carrier providing transportation ... that uses motor vehicles not owned by it to transport property under an arrangement with another party to -
      (1) make the arrangement in writing signed by the parties specifying its duration and the compensation to be paid by the motor carrier;

      . 49 U.S.C. § 14704 states: "A carrier or broker providing transportation or service subject to jurisdiction under chapter 135 is liable for damages sustained by a person as a result of an act or omission of that carrier.” See David N. Giermanski, The Re-regulation of Freight Forwarders in the USA—Mexico Border, 9-WTR International Trade Journal 11.
      Moreover, the report of the House Transportation and Infrastructure Committee specifically stated that § 14704 of the House Bill would "provide for private enforcement of the provisions of the Motor Carrier Act in court. This expands the current law which only permits complaints brought under the Act to be brought before the ICC.” H.R.Rep. No. 104-422, at 120-121 (1995), reprinted in 1995-2 U.S.C.C.A.N. 793, 832-833.

      . In Louisiana, issues of conventional obligations are generally governed by the law expressly chosen or clearly relied upon by the parties, unless that law contravenes the public policy of the state whose law would otherwise be applicable if its policies would be more seriously impaired by not applying its law. La. C.C. arts. 3537 and 3540. There has been no viable demonstration that the policies of Louisiana would be more seriously impaired by applying Mississippi law to the consideration of the controverted issues.

      . MS-ST § 75-2A-506(l) states, in relevant portion: "An action for default under a lease contract ... must be commenced within four (4) years after the cause of action accrued.” For breaches of contracts not subject to Mississippi's Uniform Commercial Code or another specific statute, a three-year statute of limitations is operative pursuant to MS-ST § 15-1-49.

      . Miller’s contention that lessors’ claims are barred by the thirty-day period delineated in section 18 of the equipment lease agreements lacks merit. As noted previously, we interpret section 18 to apply to original claims to Miller for payments by lessors based on bills of lading. Miller does not contend that the lessors failed to present any requests for payment following completion of hauls.

      . We do not assign any error in the court's failure to instruct the jury that the deadhead mileage provision was ambiguous. The effect of the trial court’s ruling on ambiguity of the provision was the allowance of the introduction of parol evidence. The jury heard the parol evidence; therefore, it was not deprived of any information upon which to reach a verdict. Moreover, this court deems the assignment of error to have been abandoned because lessors failed to submit a brief on the issue. "All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Uniform Rules — Courts of Appeal, Rule 2-12.4.

      . Miller complied with the regulatory requisite of 49 C.F.R. § 376.12(e), which requires that the lease clearly specify "the responsibility of each party with respect to ... empty mileage .... ”

      . Pursuant to the terms of the contract, Mississippi substantive law applies to the interpretation of the lease agreements. However, procedural issues fall within the purview of Louisiana.

      . On appeal, lessors argue that the grant of summary judgment in favor of Miller was in error; however, lessors failed to appeal the denial of lessors’ own motion for summary judgment on the issue of accessorial charges. This court is thus procedurally constrained to limit its decree to a reversal of the summary judgment in favor of Miller.


author: |,GAIDRY, J. |, KUHN, Judge,

text:
    Russell C. IVERSTINE v. ALBEMARLE CORP. and Travelers Insurance.
    No. 2002 CA 2555.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.
    Rehearing Denied Aug. 13, 2003.

      Randy P. Zinna, Baton Rouge, Counsel for Plaintiff/Appellant Russell Iverstine.
    J. Alan Jordan, Baton Rouge, Counsel for Defendants/Appellees Albemarle Corporation and Travelers Indemnity Company.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   |,GAIDRY, J.

In this workers’ compensation case, the plaintiff-appellant, Russell C. Iverstine, appeals a judgment rendered by the Office of Workers’ Compensation (OWC) in favor of the defendants-appellees, Albemarle Corporation and Travelers Indemnity Company, sustaining their peremptory exception of prescription. For the following reasons, we affirm the judgment of the OWC.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed a disputed claim for compensation on September 7, 2001, claiming a work-related injury to his back and neck on June 6, 2000, while carrying two 55-pound aluminum cylinders. He further asserted that the accident was reported to his supervisor on July 17, 2000. Defendants, his employer and its workers’ compensation insurer, filed an exception of prescription, contending that plaintiffs claim, filed fifteen months after his alleged injury, was prescribed pursuant to La. R.S. 23:1209(A). Defendants further argued that since plaintiffs claim was prescribed on its face, the burden of proof shifted to him to demonstrate that prescription had been interrupted in some manner.

Plaintiff responded to the exception of prescription, arguing that his claim was not prescribed because he did not realize that his back problems were related to his June 6, 2000 on-the-job injury until April 23, 2001.

Defendants’ exception of prescription was heard on June 21, 2002. The parties submitted the matter on the memoranda that had been filed, along with the deposition of plaintiff transmitted to the OWC judge on June 19, 2002. These materials demonstrated that Russell C. Iverstine was a 54-year-old employee ofLAlbemarle Corporation when he was involved in an on-the-job accident on June 6, 2000. On that day, he was working with John Borne, who was assigned to light duty because of a recent surgery. Mr. Iverstine was carrying two 55-pound aluminum alkyl cylinders to a loading dock, one in each hand. He described the accident in the following terms in his deposition:

... [I]t was like a funnybone type of thing: you know, tingling in the arms, numbness, basically like paralysis, just lost all control over my arms and hands, you know. What I did, I dropped the cylinders on the ground, as a matter of fact, right past the safety shower.

There were no witnesses to this incident. Afterwards, plaintiff told Mr. Borne what had occurred. He continued to work that day, but did not do any further loading or lifting. Mr. Borne, who had been on light duty, then assumed Mr. Iverstine’s heavy work. Plaintiff explained in his deposition testimony:

... [W]hen it happened, I knew, I knew something had happened. I said, something’s wrong here. And it was a matter of time, like a week to ten days, before I started having certain symptoms. So, no. You know, I was a little leery about what happened. It’s like a funny thing, you know. You know, we more or less reversed roles there after that. (Our emphasis.)

Plaintiff insisted that he had no back complaints before the June 6, 2000 incident. After the June 6, 2000 incident, he never resumed his previous heavy work activities. Moreover, he testified that soon after he experienced more serious complaints:

... [A]fter about a week to ten days, I started having certain symptoms, meaning tingling all over the side of my face and neck, weakness, you know, in my arms and my legs, my limbs. You know, you start, like you walk with a club foot, you know, like your foot is dragging behind. Well, these were the initial symptoms that happened after the incident.... I’d be sitting at my desk, and all of a sudden, I could feel tingling. I said, there’s something wrong. Something was going on with my body.

Plaintiff claimed that he was not sure that his continuing complaints were related to the June 6 incident, but admitted that he thought about it. When he consulted the company nurse, he told her he was not sure whether his difficulties! 4were employment-related. He went to a local emergency room on July 14, 2000, complaining of the same type of symptoms he experienced immediately after the incident and in the weeks following it. According to plaintiff, he thought he might perhaps have had a stroke. However, he was never diagnosed as having had a stroke. The emergency room doctor suggested that he see his primary care physician for followup evaluation. When he did so, his primary care physician prescribed additional medication for a pre-existing high blood pressure problem and recommended a nutritional consultation, which plaintiff concluded was unnecessary and did not obtain. There is no competent evidence in the record to suggest that the high blood pressure treatment or nutritional recommendations were in any way prompted by plaintiffs complaints of tingling in his extremities and clubfoot symptoms. There is no evidence that any actual diagnosis was rendered at that time as to the cause of these complaints.

Plaintiff failed to give any of the physicians who were treating him a history of his work-related injury, even though he admittedly entertained its possible relationship to his symptoms. Significantly, only three days after his visit to the emergency room, he reported the June 6, 2000 accident to his supervisor. Thus, the record clearly suggests that at least as of that date, plaintiff associated his medical condition and the onset of his symptoms with the June 6, 2000 accident.

When plaintiffs complaints worsened, he eventually sought the opinion of a neurologist. He was diagnosed with a cervical disc problem and underwent neck surgery in October 2000. He still did not disclose to his doctors that he had suffered a job-related accident. During his three-month recovery from surgery, plaintiff received disability benefits through an insurance policy provided by his employer.

Plaintiff returned to work after surgery in January 2001, but did not resume his normal, pre-accident duties. On April 23, 2001, he had a consultation with his | ¡^surgeon and his employer’s physician. For the first time, plaintiff reported the June 6, 2000 incident to those physicians. He claimed that although it had been his intention to discuss this earlier, he just had not done so. He further claimed that he was only told at that time that the June 6, 2000 incident might have caused his cervical problems. After this consultation, plaintiff did not return to work and was placed on long-term disability status. He also qualified for Social Security disability payments.

In opposition to defendants’ exception of prescription, Mr. Iverstine argued that prescription did not commence until April 23, 2001, when his physician informed him that the June 6, 2000 accident might have caused his cervical problems. The OWC judge rejected plaintiffs argument that prescription was for that reason interrupted until April 23, 2001. His oral reasons for judgment reflect his factual findings:

Mr. Iverstine alleges that on June 6, 2000 he sustained an injury in the course and scope of his employment. The 1008 was filed on September 7, 2001, which is some fifteen months after the accident. On the face of the petition the claim is prescribed, therefore, Mr. Iverstine bears the burden of showing that there is a valid reason why prescription should not have run from the time of the accident.
After reading the deposition of Mr. Iverstine and reading the arguments of counsel it’s obvious to me that prescription has run in this case. Mr. Iverstine testified that he was disabled immediately after the accident. He took himself off his regular duties and moved to light duty. While it is true that his exact situation was not diagnosed until later, the simple fact of the matter is that Mr. Iverstine knew he was injured on the day of his alleged accident. He immediately felt that he was disabled and prescription began to run from that time. It does not take a diagnosis of a doctor to allow prescription to run when the person has knowledge that an accident has occurred and an injury as a result of that accident.
So because prescription began to run from the date of the accident I don’t think Mr. Iverstine has overcome his burden and, therefore, the exception of prescription is granted.

The judgment in conformity with the OWC judge’s ruling was signed on June 21, 2002. On appeal, plaintiff assigns a single assignment of error for our |fireview. He contends the OWC judge erred in granting defendants’ exception of prescription.

APPLICABLE LAW AND DISCUSSION

In a workers’ compensation case, as in other civil cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Pertuis v. Architectural Fabrications, Inc., 01-2684, p. 6 (La.App. 1st Cir.12/20/02), 836 So.2d 450, 453. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mitchell v. Terrebonne Parish School Board, 02-1021, pp. 3-4 (La.App. 1st Cir.4/2/03), 843 So.2d 531, 532-33.

La. R.S. 23:1209(A) addresses the prescriptive period for workers’ compensation claims, and provides, in pertinent part:

In case of personal injury, ... all claims for payments shall be forever barred unless within one year after the accident ... the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and [footnote omitted] in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim |7for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident. (Our emphasis.)

Thus, under La. R.S. 23:1209(A), claims are barred unless filed (1) within one year from the date of the accident; (2) within one year from the last compensation payment for total disability or within three years from the last payment for partial disability; or (3) within one year from the time the injury develops if not immediately manifested, but, in any event, no more than two years after the accident. Howard v. Trelles, 95-0227, p. 4 (La.App. 1st Cir.2/23/96), 669 So.2d 605, 607, writ denied, 96-0712 (La.5/3/96), 672 So.2d 690. Prescription statutes are construed in favor of maintaining rather than barring actions. Howard, 95-0227 at p. 4, 669 So.2d at 607.

A party pleading prescription generally has the burden of proving it. However, when a suit has prescribed on its face, the claimant has the burden of proving that prescription was interrupted in some manner. Mitchell, 02-1021 at p. 5, 843 So.2d at 533. In this case, plaintiffs claim was filed on September 7, 2001, more than one year after the date of his alleged June 6, 2000 on-the-job injury. Thus, it was prescribed on its face unless plaintiff established that prescription was interrupted.

The only argument urged in this case to support the claim that the OWC judge committed manifest error is that plaintiff did not understand that his disability was work-related until April 23, 2001, because his physical complaints were misdiagnosed until that time. Under the particular facts and circumstances of this | «case, we find no error in the OWC’s findings.

Plaintiff is correct in pointing out that the jurisprudence has established an exception to the generally applicable one-year prescriptive period, such that prescription does not commence to run until a claimant is aware, or should have been aware, that the injury with its resulting disability is work-related. Bolden v. Georgia Casualty & Surety Company, 363 So.2d 419, 422 (La.1978). Actual knowledge or constructive knowledge of a cause of action has been defined as the time when a party has sufficient information to incite curiosity, to excite attention, or to put a reasonably-minded person on guard and to call for inquiry. Gaddy v. Caddo Parish School Board, 36,583, p. 5 (La.App. 2nd Cir.12/11/02), 833 So.2d 1088, 1091.

But plaintiff is incorrect in asserting that prescription is interrupted until such time that a physician advises that a disabling condition is work-related. It is the information and circumstances reasonably known to the plaintiff, not a physician’s medical diagnosis, that triggers the running of prescription. Where a claimant is aware that he can no longer perform his customary job duties, knows that he has been involved in a work-related accident resulting in injury, and has reported the disabling accident to his supervisor, disability may be manifest and prescription can commence to run long before a physician formally pronounces a work-related disability. Livingston v. Triple-V Farms, 502 So.2d 173, 175 (La.App. 3rd Cir.1987). Prescription is not interrupted where a claimant is aware of atraumatic injury at the time of the accident but delays securing a proper medical diagnosis of the cause of the disability. Bolden, 363 So.2d at 422.

After a thorough review of the record, we agree with the OWC judge that plaintiffs failure to file a timely claim was not excused because he did not obtain an immediate diagnosis from his doctors that he had sustained a work-related injury. Plaintiff did not even advise his physicians of the work-related incident until April 23, 2001. Yet plaintiff was well aware of the sudden onset of his symptoms on June 6, 2000. He reported the incident to his coworker and traded work assignments with him because he could no longer perform his normal duties. He also reported the June 6, 2000 accident to his supervisor in July 2000. The trial court found that plaintiff’s injuries were manifest on the date of the accident, and that he was aware of his disability on that date. This finding of fact may not be disturbed on appeal unless it is clearly wrong. Lee v. East Baton Rouge Parish School Board, 623 So.2d 150, 155 (La.App. 1st Cir.1993), writ denied, 627 So.2d 658 (La.1993). We cannot so hold here.

Plaintiffs reliance on Ronquille v. State, Department of Wildlife and Fisheries, 532 So.2d 891, 895-896 (La.App. 5th Cir.1988), is misplaced. In that case, the employee had an episode of back pain at work and was sent to a physician for evaluation. He was diagnosed as having a kidney stone, which explained his back pain. That diagnosis proved correct. Since it was determined that he had a kidney stone, a condition unrelated to his work, the employee did not then realize that he was also suffering from back pain related to his employment. Ronquille, 532 So.2d at 893. In this case, contrary to his assertions, plaintiff was never misdiagnosed. He simply failed to mention the history of the June 6, 2000 accident to his physicians, and they therefore could not immediately determine the |inetiology or precipitating cause of his symptoms. He was diagnosed with a cervical disc problem, which necessitated surgery in October 2000. Unlike the situation in Ronquille, there is no evidence in the record to support the claim that plaintiffs job-related symptoms were misdiagnosed or that any of his physicians ever advised him that the tingling in his extremities and dragging of his foot were caused by a noneompensable physical condition. It is noteworthy that plaintiff did not offer, in opposition to the exception of prescription, any testimony or affidavits of his treating physicians or his medical records in support of his contentions.

Plaintiff bore the burden of proving that prescription was interrupted. Based on our review of the record, we cannot say that the OWC judge was clearly wrong in finding that plaintiff did not meet that burden and that his claim for compensation benefits was prescribed. In summary, the record supports the findings that plaintiff knew he suffered a work-related injury on June 6, 2000, and he knew that he could not thereafter perform his customary work. He entertained the idea that the June 6, 2000 incident caused his medical problems, immediately reported the incident to his coworker, reported the accident to his supervisor on July 17, 2000, and failed to timely assert a compensation claim long after his physicians’ differential diagnosis had definitively ruled out a stroke. In view of the facts and circumstances demonstrated in the record, the OWC judge was free to reject claimant’s self-serving testimony that he thought he might have had a stroke and therefore did not have a reasonable basis to suspect a causative relationship between his disability and the accident until the discussion with his physicians in April 2001. In our view, even after according a liberal interpretation to the evidence in favor of plaintiff, there was clearly a reasonable factual basis for the ruling of the OWC judge, and his findings cannot be considered manifestly erroneous.

InAlthough the OWC judgment states only that “the exception of prescription is granted,” under the facts of this case, it clearly effects a dismissal of plaintiffs claim. Accordingly, we amend and clarify the judgment to expressly dismiss plaintiffs claim for workers’ compensation ben-efíts, which allegedly arose out of his June 6, 2000 injury. See La. C.C.P. art. 2164; Pertuis v. Architectural Fabrications, Inc., 2001-2684 at p. 7, 836 So.2d at 453.

DECREE

For the foregoing reasons, plaintiffs workers’ compensation claim is dismissed. With this modification, the judgment of the OWC in favor of Albemarle Corporation and Travelers Indemnity Insurance is hereby affirmed. All costs of this appeal are assessed to plaintiff, Russell C. Iver-stine.

AMENDED, AND AS AMENDED, AFFIRMED.

|, KUHN, Judge,

dissenting.

The OWC’s ruling should be reversed. Claimant filed his claim within one year of the time that his “injury developed]” as contemplated by La. R.S. 23:1209a. Sevin v. Schwegmann, 94-1859 (La.4/10/95), 652 So.2d 1323. Although claimant knew he was injured immediately after the June 6, 2001 accident, his injury did not fully develop until months later. Claimant’s deposition testimony establishes that although he had informally began performing light-duty work after the accident, he continued to work through September 27, 2000. During that time period, he did not formally request a change in his job duties. In the next few months, claimant’s symptoms worsened. After consulting with a surgeon on September 27, 2000, claimant underwent surgery on October 3, 2000. Following the surgery, Albemarle paid claimant disability benefits for ten weeks at full pay and sixteen weeks at half-pay.

In Boudreaux v. Angelo Iafrate Const., 02-0992 (La.App. 1 Cir. 2/14/03), 848 So.2d 3, this court addressed the concept of when a developing injury becomes disabling to a claimant as follows:

The jurisprudence offers guidelines for establishing when a developing injury has reached the disabling point for purposes of applicability of this exception to the one-year prescriptive period. In the case of the retained employee who continues to work with symptoms which might have been held to be disabling (if litigated), but which did not become manifestly disabling to the employee until he was physically forced to quit his work, the disability does not become manifest or “develop” until that date, because to select an earlier date would be dealing in conjecture. Bolden v. Georgia Casualty and Surety Company, 363 So.2d 419, 421-422 (La.1978). In cases of this nature, the policy is to encourage rather than penalize an employee who continues working despite a work-related medical condition, which is painful, but not then disabling. Sevin v. Schwegmann Giant Supermarkets, Inc., 652 So.2d at 1326.

In the present case, the trial court focused on when claimant knew he was hurt. That is not the test under the Sevin analysis. The analysis for the developing injury exception focuses on when the injury fully develops into a disabling condition. The trial court found that because claimant knew he was injured on the date of the alleged accident, prescription began to run on that date. This reasoning demonstrates that the trial court committed legal error by not applying the provisions of La. R.S. 23:1209 and the concept of a “developing injury” when considering whether the claim had prescribed.

The majority suggests that the “developing injury” theory cannot be considered because claimant did not assert this argument in the proceedings below. This reasoning is faulty because the “theory of the case” doctrine has been abolished in Louisiana. See La. C.C.P. art. 862, Comment b. The statutory law, as interpreted by the jurisprudence, should be applied to the established facts regardless of whether claimant advances the appropriate or best legal argument.

|^Additionally, the majority ignores the well-established principle that workers’ compensation laws are to be liberally interpreted in favor of protecting workers from the economic burden of work-related injuries. Sevin, 652 So.2d at 1325. The majority’s resolution serves to encourage needless litigation by requiring an injured employee, who is not yet disabled, to assert his claim within one year of the accident in order to preserve his cause of action. Sevin, 652 So.2d at 1326.

Claimant’s deposition testimony establishes that he continued to work through September 27, 2000; he continued to work until his disability “developed” and required surgery. Thus, his claim, which was filed on September 7, 2001, was timely. The claim was filed within one year of the time that the injury developed and within two years of the date of the accident. La. R.S. 23:1209A.

KUHN, J., dissents and assigns reasons.

      . The OWC judge assigned to this case was the Honorable Anthony P. Palermo, District 5. Although plaintiffs petition names "Travelers Insurance” [sic] as a defendant, Travelers Indemnity Company answered the plaintiff’s claim and filed an exception of prescription. Plaintiff does not dispute that Travelers Indemnity Company is the actual workers’ compensation carrier insuring his employer.

      . While the plaintiff’s deposition was not entered into evidence in open court, the record indicates that the opposing parties agreed to its evidentiary submission to the OWC judge by mail. The OWC is not bound by technical rules of evidence or procedure. La. R.S. 23:1317.

      . For purposes of consideration of defendants' exception of prescription, we assume the truth of the allegations of plaintiffs petition, including the allegation that his injury was caused by a work-related accident.

      . It is undisputed that plaintiff received no workers' compensation payments in connection with the alleged accident.

      . Plaintiff does not argue that his case falls within the special prescriptive period for "developing injuries” established in the last sentence of La. R.S. 23:1209A, which creates an exception to the normal one-year period of prescription, such that prescription is interrupted until the time the injury "develops.” As used in the statute, the phrase "development of the injury” connotes the time when disability to perform work becomes manifest either to the injured employee or his employer. Barker v. Aetna Cas. & Sur. Co., 380 So.2d 178, 179 (La.App. 1st Cir.1979), writ denied, 383 So.2d 25 (La.1980). Plaintiff in this case concedes that he had an injury that was immediately manifest, that it immediately affected his ability to perform his normal work assignments, and that he reported the accident to his employer on July 17, 2000. Nor did plaintiff assert any other basis for an interruption of prescription in the proceedings below. For those reasons, any additional grounds for asserting an interruption of prescription cannot be considered on appeal. See Gaddy v. Caddo Parish School Board, 36,583, p. 4 (La.App.2d Cir.12/11/02), 833 So.2d 1088, 1091.

      .Indeed, the extremely hazardous and potentially explosive nature of the cylinders he dropped due to onset of his symptoms should have dramatically reinforced his recollection of the accident and its association with his symptoms.

      . See also Gaddy, 36,583 at pp. 5-10, 833 So.2d at 1092-1094; Puglisi v. Saia Motor Freight Lines, 422 So.2d 1363, 1365 (La.App. 1st Cir.1982).

      . La. R.S. 23:1209A provides in pertinent part:
      [ W]hen the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.