author: I sKUHN, J.

text:
    Janice Cantrell O’CONNOR and George J. O’Connor, Jr. v. Elmer LITCHFIELD, Sheriff, East Baton Rouge Parish.
    No. 2003 CA 0397.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.
    Rehearing Denied Feb. 9, 2004.

      William T. Lowrey, Jr., Baton Rouge, Counsel for Plaintiffs/Appellees Janice Cantrell O’Connor and George J. O’Con-nor, Jr.
    Leu Anne Lester Greco, Baton Rouge, Counsel for Defendant/Appellant Elmer B. Litchfield, Sheriff East Baton Rouge Parish.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   I sKUHN, J.

Defendant-appellant, Elmer Litchfield in his capacity as the Sheriff of East Baton Rouge Parish (the Sheriff), appeals the trial court’s judgment awarding damages in survival and wrongful death actions in favor of plaintiffs-appellees, Janice O’Con-nor and George O’Connor, Jr., the surviving widow and son of deputy lieutenant George O’Connor, Sr. (LtO’Connor). The O’Connors answer the appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 2, 1997, Lt. O’Connor, a long-term employee of the East Baton Rouge Sheriffs Office, was working as a shift lieutenant at the Kleinpeter Substation when he slipped and fell on a wet floor which had recently been mopped by a trustee/inmate who had been transported to the substation by sheriff deputies for the purpose of performing maintenance of the premises. Lt. O’Connor initially thought he had merely sprained his ankle but when the swelling had not abated, at the direction of his supervisor, he sought medical attention. After x-rays were taken, Lt. O’Connor was advised that he had sustained an ankle fracture. Because he experienced continued weakness in his right leg, his treating physician referred him to a neurologist, Dr. Steven Zuckerman. Based on continued complaints of muscle weakness, as well as difficulty with speaking and swallowing, Dr. Zuckerman concluded that some of Lt. O’Connor’s symptoms could be explained in part by a disc herniation with compression on his cervical spinal cord. Dr. Zuckerman referred Lt. O’Connor to a neurosurgeon who performed surgery on Lt. O’Connor’s cervical spine in March 1998.

|3Lt- O’Connor filed this lawsuit against his employer in March 1998 seeking redress for injuries to his ankle, neck, and head. Despite the March 1998 surgery, Lt. O’Connor continued to experience the symptoms for which he had been referred to Dr. Zuekerman: muscle weakness as well as an increased inability to speak and swallow. After consultation with experts in Houston, Texas, on May 13, 1998, Dr. Zuekerman diagnosed Lt. O’Connor with Amyotrophic lateral sclerosis (ADS). On December 28, 1998, Lt. O’Connor died.

On December 16, 1999, Janice O’Connor and George O’Connor, Jr., supplemented the earlier-filed petition, substituting themselves as proper-party plaintiffs and averring entitlement to damages for the survival action and wrongful death of Lt. O’Connor. After a two-day trial, the trial court awarded $404,894.83 for the survival action. Awards of $300,000 in favor of Janice and $200,000 in favor of George were made for their respective wrongful death claims. Costs were assessed against the Sheriff. From the judgment signed on October 9, 2002, the Sheriff appeals.

On appeal, the Sheriff challenges the trial court’s liability conclusion; apportionment of fault; failure to reduce the amount of medical damages awarded in the survival action for payments and write offs made by the employer for Lt. O’Connor’s medical expenses; and failure to statutorily limit the O’Connors’ total recovery to $500,000. In their answer, the O’Connors aver the trial court’s failure to |4render awards to each of them for loss of consortium damages constitutes reversible error.

LIABILITY

The parties do not disputed that in this lawsuit although the Kleinpeter Substation was outfitted with orange warning cones that cautioned of the wet condition of the floor, at the time and place of Lt. O’Con-nor’s fall, these devices were not in place. According to the testimony of all the witnesses, it was the responsibility of a trustee, transported by deputy sheriffs in the early morning hours from the prison, to mop the floor of the Kleinpeter Substation. Skip D’Amico, the captain to whom charge of the substation was delegated by the Sheriff at the time of Lt. O’Connor’s slip and fall, testified that proper standard operational procedure at the Kleinpeter Substation required the trustee who mopped the floor to position warning cones in any area — whether accessible to the public or only to the Sheriffs employees — to notify those who might use the floor of its wet condition. D’Amico explained that in 1984 or 1985 when the trustee premises maintenance program was initiated at Kleinpeter Substation, he verbally advised all the shift lieutenants, including Lt. O’Connor, of the proper procedure to which the trustees were to adhere. Specifically, D’Amico said, shift lieutenants were told that the trustee was expected to place warning cones in a recently mopped area while the floor was wet. Noting the frequent change of the individual trustee sent to Kleinpeter Substation from the prison, D’Amico stated that he additionally had the instructions typed up | Rfor the trustee to see, and these were posted in the back of the room that the trustees used. The matter was never discussed again until subsequent to Lt. O’Connor’s slip and fall.

Neither a copy of the posted instructions nor testimony of a shift lieutenant, or any other person who had received D’Amico’s verbal instruction that a trustee was to place warning cones, was introduced into evidence. The trustee who actually mopped the floor upon which Lt. O’Connor fell on April 2, 1997, was never identified and, therefore, his testimony was not placed into the record.

A court of appeal may not reverse the trial court’s factual finding unless it is manifestly erroneous or clearly wrong. Stobart v. State of Louisiana, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart, 617 So.2d at 882. 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. Id.

According to La. R.S. 23:13:

Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.

| (¡In order for an employee to recover from the Sheriff, plaintiffs must prove, among other things, that the accident and injuries were caused by an unreasonable risk of harm created by the employer’s failure to properly fulfill the duties imposed by La. R.S. 23:13. Gorton v. Ouachita Parish Police Jury, 35,432, p. 17 (La.App.2d Cir.4/3/02), 814 So.2d 95, 104, writs denied, 02-1261, 02-1273 (La.8/30/02), 823 So.2d 950, 952.

Expressly noting and relying upon the testimony of safety expert, Michael Fren-zel, in its written reasons for judgment, the trial court concluded that the housekeeping procedures of the Sheriffs Office were not properly disseminated from the Sheriff through the ranks down to the shift lieutenants in charge of the substation building, including Lt. O’Connor who, as the Sheriffs ranking officer at the time of his injury, was in charge of the Kleinpeter substation. The written reasons state that the trial court:

does not find that the duty to maintain a safe working environment at the Klein-peter Substation was delegated to Lt. O’Connor [as argued by defendant]. No evidence was submitted that Lt. O’Con-nor’s duties included monitoring the housekeeping tasks performed by the trustees.

The trial court assessed “100% of the fault and liability” against the Sheriff.

Sheriff’s Failure to Properly Fulfill Duties under La. R.S. 23:13

While D’Amico testified that he had instructed the shift lieutenants of the general responsibilities of the trustees in 1984 or 1985, he admitted that the Sheriff had not given him or any other supervisor training or instructions to oversee the trustees’ work. This record establishes that D’Amico was the person who fashioned and posted instructions for Kleinpeter Substation. By D’Amico’s account, the instructions he drafted were directed to the trustees and not to the shift lieutenants or [7deputies who worked at the substation. Although the Sheriff had a written manual addressing generalization of the operations of a substation, D’Amico testified that the manual did not include a procedure addressing the maintenance duties the trustees were to perform on the premises. While other Kleinpeter Substation employees who testified indicated that they knew to summon the trustee to tend to a mess or to request that a garbage basket be emptied, none knew of specific requirements to which the trustee was expected to conform in accomplishing the maintenance detail and specifically insofar as mopping the floors of the substations.

Safety expert Frenzel testified to the need for uniformity and consistencies as to how trustee labor was used in a janitorial setting. In light of the high turnover rate at the Kleinpeter Substation, Frenzel opined that D’Amico’s posted instructions were not sufficient for safety purposes without someone employed at the Klein-peter Substation ensuring that the trustee actually saw, understood, and adhered to them. Based on safety journals and texts, Frenzel stated that it was the custom of the janitorial/custodial services industry to set out cones and some other type of safety devices during the time that a floor was mopped warning of the wet condition. He said that the warnings should be posted while the floor was wet until it was fully dry. And then to prevent a false warning, the safety devices needed to be removed.

We find a reasonable factual basis exists to support the trial court’s conclusion that the Sheriff failed to disseminate a standard operational procedure to either the trustees to whom substation maintenance duties had been delegated or to the deputies charged with their supervision. This conclusion, therefore, is not manifestly erroneous. The Sheriff, as Lt. O’Connor’s employer, simply failed to adopt and use methods and processes reasonably adequate to render the Kleinpeter | ¡^Substation safe in derogation of his duty under La. R.S. 23:13. The trial court correctly concluded that the Sheriff failed to properly fulfill the duties imposed by La. R.S. 23:13.

Predicated on the factual finding that the Sheriff failed to disseminate a standard operational procedure to either the trustees insofar as their obligations in performing the maintenance detail at the Kleinpeter Substation, including the trustee who mopped the floor upon which Lt. O’Connor fell; or to the shift lieutenants in charge of Kleinpeter Substation insofar as their supervising duties over the trustees, in order to impose liability directly against the Sheriff under La. R.S. 23:13, the jurisprudence nevertheless requires a showing that the failure to place the cones warning of the wet condition of the recently-mopped floor constitutes an unreasonable risk of harm, which caused the damages that the O’Connors sustained. See Gorton, 35,432 at p. 17, 814 So.2d at 104.

Unreasonable Risk of Harm,

In concluding that the Sheriff was liable to the O’Connors for failing to fulfill his duties under La. R.S. 23:13, the trial court implicitly found that the lack of cones on the recently-mopped floor warning of the wet condition constituted an unreasonable risk of harm.

Whether a defendant’s liability has been based on a theory of strict liability or negligence, the jurisprudential criterion for determining an unreasonable risk of harm requires a balancing of the likelihood and magnitude of harm against the utility of the thing, as well as a broad range of social, economic, and moral factors, Iflincluding the cost to the defendant of avoiding the harm, and the risk and the social utility of the plaintiffs conduct at the time of the accident. All the circumstances surrounding the particular accident under review must be carefully considered to determine whether allowing recovery to the particular plaintiff involved, for damages occurring in the particular manner in which the plaintiff was injured, is desirable from the standpoint of justice and the social utility of the conduct of the respective parties. Adams v. Parish of East Baton Rouge, 00-0424, pp. 11-12 (La.App. 1st Cir.11/14/01), 804 So.2d 679, 690, writ denied, 02-0448 (La.4/19/02), 813 So.2d 1090.

According to safety expert Frenzel, the placement of cones serves as a subconscious reminder to modify the way a person walks to accommodate for the wet floor. In the employment context, where an employee has traversed a wet floor but has subsequently had his mind occupied with employment-related matters, placement of warning cones alerts the mind of the still-wet condition of the floor.

In this case, it is undisputed that the Kleinpeter Substation was outfitted with orange warning cones that cautioned of the wet condition of the floor. And the evidence established the trustees regularly set the warning cones out when mopping the lobby portion of the substation, which was an area accessible to the public. Thus, the cost to the defendant of avoiding the harm was minimal. Injuries to a person who slips and falls on a wet floor are the obvious risk of harm that placement of warning cones is designed to minimize.

In slip and fall claims based on negligence, defendant’s awareness of the dangerous condition of the premises gives rise to a duty to act, see Oster v. Dep’t of Transp. & Dev., 582 So.2d 1285, 1288 (La.1991), which includes the duty to warn hnthird persons of the hazard. See e.g. Stevens v. Winn-Dixie of La., 95-0435, pp. 6-7 (La.App. 1st Cir.11/9/95), 664 So.2d 1207, 1212 (duty of care under Product’s Liability Act, see La. R.S. 9:2800.6, included duty to warn of wet condition of floor due to recently-mopped hallway in store); Carr v. City of New Orleans, 626 So.2d 374, 380 (La.App. 4th Cir.1993), writ denied, 94-0062 (La.3/11/94), 634 So.2d 398 (janitorial service has duty to take precautionary measures to warn users of facility of potential hazards).

We find no error in the trial court’s implicit conclusion that the failure to set out cones warning of the wet condition of the recently-mopped floor in the hallway where Lt. O’Connor’s office was located constituted an unreasonable risk of harm, which created an unsafe place of employment as contemplated by La. R.S. 23:13.

Causation

To impose liability against the Sheriff under La. R.S. 23:13 in accordance with the jurisprudence, see Gorton, 35,432 at p. 17, 814 So.2d at 104, the record must also include evidence that the failure to post the warning cones was the cause of the accident and injuries.

Cause-in-fact is generally a “but for” inquiry. Hughes v. Goodreau, 01-2107, p. 18 (La.App. 1st Cir.12/31/02), 836 So.2d 649, 662, writ denied, 03-0232 (La.4/21/03), 841 So.2d 793. Thus, the cause-in-fact inquiry is whether the harm to the O’Connors would have occurred but for the failure to properly mark the floor with In cones. Causation is a question of fact. Conerly v. State of Louisiana ex rel. the Louisiana State Penitentiary and the Dep’t of Corrs., 02-1852, pp. 10-11 (La. App. 1st Cir.6/27/03), 858 So.2d 636, 645-47, writ denied, 03-2121 (La.11/14/03), 858 So.2d 432.

Corporal R.B. Carney, the Kleinpeter Substation radio dispatcher, and Deputy Jennifer Sebella, who performed secretarial duties at the substation, both testified that Lt. O’Connor had exited the communications room to answer a ringing phone in his office. The Sheriff employees’ memories of the pace at which Lt. O’Connor traveled down the hallway to his office were not in conformity: Carney recalled that the shift lieutenant ran; but Sebella testified that Lt. O’Connor walked as he returned to his office.

Mindful of safety expert Frenzel’s testimony that the placement of cones served as a general reminder to all to modify their manner of walking to accommodate the wet condition of the floor; and that insofar as an employee at work who has traversed a wet floor, the cones reminded him of its still-wet condition despite any subsequent mental concerns he may have had with employment-related matters, we cannot say that the trial court is clearly wrong in concluding that the lack of properly-positioned cones caused the losses the O’Connors sustained. But for the lack of cones warning him, Lt. O’Connor would have been duly alerted of the need to modify his method of traversing the hallway as he went to answer the ringing phone in his office. Because Lt. O’Connor died prior to the trial of this matter, his testimony on this point was not produced. But it is obvious that the conclusion that the wet condition of the floor and the failure to properly display the warning cones caused this slip and fall which ultimately resulted in Lt. O’Connor’s 112death is a reasonable one based on our review of the entirety of this record. See and compare Stevens, 95-0435 at p. 7, 664 So.2d at 1212 and Carr, 626 So.2d at 380.

The Sheriff failed to fulfill his duty under La. R.S. 23:13 to adopt and use methods and processes reasonably adequate to render Lt. O’Connor’s place of employment safe. And the evidence duly demonstrated that the failure to place cones warning of the wet condition of the recently-mopped floor constituted a reasonable method or process which would have adequately rendered the Kleinpeter Substation hallway safe. As required by the jurisprudence, the record also establishes that the lack of cone placement on the wet floor created an unreasonable risk of harm which caused the accident to Lt. O’Connor. Accordingly, under La. R.S. 23:13, and the jurisprudence interpreting this statutory duty, we find that the trial court correctly imposed liability for the O’Connors directly against the Sheriff.

I ^COMPARATIVE FAULT

The Sheriff urges that the trial court erred in failing to apportion some fault on Lt. O’Connor, maintaining that Lt. O’Con-nor’s failure to have cones placed on the wet floor of the hallway in that portion of the Kleinpeter Substation which was inaccessible to the public requires that some fault be attributed to the shift lieutenant. The Sheriff also contends that Lt. O’Con-nor’s failure to use due care when he traveled down the hallway to answer the ringing phone also supports a finding that he is comparatively at fault in causing the damages the O’Connors have sustained.

Louisiana Civil Code article 2323 A provides in relevant part:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined .... If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Clement v. Frey, 95-1119, 95-1163, p. 8 (La.1/16/96), 666 So.2d 607, 611.

A determination of the allocation of fault by the trier of fact is a factual finding, which cannot be overturned in the absence of manifest error. Williams v. City of Baton Rouge, 02-0682, p. 12 (La. App. 1st Cir.3/28/03), 844 So.2d 360, 371. Thus, we must determine whether the fact finder’s conclusion was a reasonable one, not if the trial court was right or wrong. Id., 02-0682 at pp. 12-13, 844 So.2d at 371.

Addressing the Sheriffs contention that Lt. O’Connor bears responsibility for having failed to properly direct the trustee to place the cones on the recently-mopped, wet floor, the trial court found that D’Amico’s oral notice to shift lieutenants, including Lt. O’Connor, once in 1984 or 1985 was insufficient dissemination of the trustees maintenance detail duties. While the record supports the finding that the typewritten instructions were posted in the back of the room used by the trustees, none of the Sheriffs deputies who testified were aware of what information was included in them. Additionally, Sebella’s testimony that she had seen cones used in the areas inaccessible to the public once or twice established that any use of cones in that area of the substation was irregular.

We cannot say that the trial court’s determination that the Sheriff was in the position to best ensure that procedures were adhered to at the Kleinpeter Substation, including the simple, low-cost measure of setting out warning cones. Indeed, a sheriff-authorized operational procedure addressing the execution of maintenance detail, including janitorial services, would ensure the safety of his employees in the other substations and facilities where his employees regularly work, thereby diverting the risks inherent in temporarily wet floors, among other things. As noted by safety expert Frenzel, it is expected that employees will allow work preoccupations to distract them from their present sense appreciation that a floor surface — even one recently traveled — was in a state of wetness. After a lapse of | ^approximately 12 years since shift lieutenants were informed that cones should be placed, in light of the irregular pattern of placing cones in the Kleinpeter substation, absent the stamp of the Sheriffs authority of such a procedure, we cannot say that this record lacks a reasonable basis to support the trial court’s conclusion that the Sheriff was entirely — and Lt. O’Connor was not — at fault for failing to direct the trustee to place cones in the hallway where his office was located.

We likewise find no error in the trial court’s conclusion that Lt. O’Connor was not at fault for failing to use due care as he traveled down the hallway to answer the ringing phone. Although the Sheriff contends that by proceeding hastily to his office and failing to detect the odor from the cleaning agents in the water used to mop the floors, Lt. O’Connor bears some responsibility for the O’Connor’s losses, the trial court concluded to the contrary.

The testimonial evidence addressing the rate of Lt. O’Connor’s travel as he headed to his office was disputed. But it was undisputed that Lt. O’Connor was proceeding toward his office motivated by a desire to answer the ringing phone of the Sheriffs substation. No evidence suggests that Lt. O’Connor knew that the floor was wet or had been recently mopped at the time. The record supports a finding that hectic conditions and, hence, hasty motion by the deputies was within the range of activity acceptable at a sheriff substation. Lt. O’Connor was attempting to execute the duties expected of him. And that he did not smell the odor of cleaning agents used in the water does not make it unreasonable for the trial court to have found Lt. O’Connor free from fault either. According to safety expert Frenzel, the odor of the cleaning agents does not serve as a warning of a wet floor, noting that the smell can linger even after the floor has dried. He also pointed out that in light of the 11fisubstation’s configuration, odors from the cleaning agents would permeate the entire area, thereby discounting any localized affect that a person might be more likely to notice. The trial court’s conclusion is a reasonable one based on this record, and, therefore, we find no manifest error.

DAMAGES

The trial court awarded the O’Connors $404,894.83 for the survival action. Additionally, the trial court awarded $300,000 to Janice and $200,000 to George for their respective wrongful death damages. The Sheriff challenges these awards.

Collateral Source Rule

The parties stipulated Lt. O’Connor’s total medical expenses were $66,916.83. And while the judgment awarded only a lump sum of $404,894.83, in its written reasons, the trial court listed the stipulated medical expenses as an item of damages in the survival action.

Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. Louisiana Dep’t of Transp. and Dev. v. Kansas City Southern Ry. Co., 02-2349, p. 6 (La.5/20/03), 846 So.2d 734, 739.

Noting that in his capacity as the deputy lieutenant’s employer, he paid the entire health insurance premium, the Sheriff asserts that the trial court erred by its application of the collateral source rule, which resulted in its failure to allow a credit in favor of the Sheriff for the medical expenses made by Lt. O’Connor’s health insurance provider. The Sheriff reasons that having been determined to be the tortfeasor in this case and as the source of the insurance which resulted in 117payments to medical providers, the awarded medical expenses are not monies received from sources “independent of the tortfeasor’s procuration or contribution.” By awarding Lt. O’Connor’s medical expenses in tort, the Sheriff urges that the O’Connors have received a second recovery from him.

The collateral source rule is of common law origin yet it is well-established in the jurisprudence of this state. Kansas City Southern Ry. Co., 02-2349 at p. 6, 846 So.2d at 739. According to Restatement (Second) of Torts § 920A (1979):

(1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.
(2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.

Thus, a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor, and if the plaintiff was himself responsible for the benefit, as by maintaining his own insurance or by making advantageous employment arrangements, the law allows him to keep it for himself. See Restatement (Second) of Torts § 920A comment b. See also Coscino v. Wolfley, 96-0702, p. 12 (La.App. 4th Cir.6/4/97), 696 So.2d 257, 264, writs denied, 97-2317, 97-2539 (La.1/9/98), 705 So.2d 1100, 1102 (declining to credit a state agency tortfeasor for health provider paid medical expenses to state employee victim).

The record clearly establishes that the payment of Lt. O’Connor’s entire health premium was an arrangement made as a result of his employment contract with the Sheriff. As such, the deputy lieutenant negotiated an advantageous term in his employment arrangements with the Sheriff for which the collateral source rule 118applies in favor of Lt. O’Connor. Simply stated, the trial court correctly found the Sheriff is not entitled to a credit for any medical expenses paid by his health insurance provider.

Statutory Cap

The parties do not dispute the applicability of La. R.S. 13:5106 B, which limits the liability imposed on the State, a State agency, or public subdivisions, stating in relevant part:

B. (1) In all suits for personal injury to any one person, the total amount recoverable, including all derivative claims, exclusive of property damages, medical care and related benefits and loss of earnings, and loss of future earnings, as provided in this Section, shall not exceed five hundred thousand dollars.
(2) In all suits for wrongful death of any one person, the total amount recoverable, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars.

The Sheriff urges that properly interpreted, the awards made under subsection B(l) and B(2) are subject to one cap, which cannot exceed $500,000. Thus, he contends that the trial court’s combined survival action and wrongful death awards, totaling $904,894.83 ($404,894.83 + $300,000 + $200,000), should be reduced as a matter of law to $500,000.

The plain reading of the statute provides for one cap on personal injury damages (including survival actions for those personal injury damages) and one cap for wrongful death damages. Barrilleaux v. Barthelemy, 02-1416, p. 6 (La. App. 4th Cir.4/2/03), 844 So.2d 1006, 1010, writ denied, 03-1254 (La.9/5/03), 852 So.2d 1040. Because neither the trial court’s award for the survival action nor the combined awards for the wrongful death damages exceed $500,000, there is no error.

Loss of Consortium Damages

In their answer to the Sheriffs appeal, the O’Connors claim entitlement to loss of consortium damages under La. R.S. 13:5106 B(l).

The elements of a spouse’s loss of consortium claim include loss of: love and affection; companionship, impairment of sexual relations; material services; support; aid and assistance; and felicity. With the exception of its sexual component, the elements of a child’s claim for loss of service and society are essentially the same. Farley v. State Through Dep’t of Transp. and Dev., 96-0538, p. 7 (La. App. 1st Cir.9/27/96), 680 So.2d 750, 754, writ denied, 96-2604 (La.12/13/96), 692 So.2d 1065. And while consortium claims are usually limited to those asserted on behalf of minor children, under limited circumstances these damages may be awarded to an adult child. Id.

As noted above, the judgment expressed a lump sum award of $404,894.83 in the survival action. In addition to the award for medical expenses in the amount stipulated by the parties, the written reasons for judgment state:

For the survival action, this [court] awards the following damages:

1. Fractured ... ankle— The plaintiff was in a cast for six weeks and attended physical therapy ... $ 10,000.00

|2q2. Midline herniation of C6-7 cervical disc— The plaintiff under went the following treatments: myelogram, CT scan, surgery, physical therapy ... $ 80,000.00

3. ALS— The plaintiff deteriorated from a robust man of 214 pounds to a man trapped within his body unable to move, eat, or communicate weighing only 100 pounds at his death approximately 13 months later ... [$]250,000.00[.]

The fact finder has great discretion in determining the amount of damages, and appellate courts should rarely disturb such an award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is well settled that a lump sum judgment is presumed to award all items of damages claimed. Bryan v. City of New Orleans, 98-1263, p. 2 (La.1/20/99), 737 So.2d 696, 697-98. The appellant’s burden of proving the fact finder clearly abused its great discretion is more difficult than usual because the intention to award a specific amount for any particular item is not readily ascertainable. Id., 98-1263 at p. 3, 737 So.2d at 698.

The O’Connors’ sole complaint on appeal is that the trial court’s failure to award any consortium claims was manifestly erroneous under the facts of this case. But a careful reading of the trial court’s reasons does not support this assertion. Specifically, we note that the trial court’s reasons do not expressly limit the amounts itemized for each injury Lt. O’Connor sustained to his general damages. Thus, the trial court’s itemization of damages for each injury included all claimed losses, including the O’Connors’ respective loss of consortium claims. Indeed, the impact on the lives of both Janice and George was intense, especially during the last six months of Lt. O’Connor’s life when he was under the care of hospice. But the trial court’s award of $340,000 for Lt. O’Connor’s damages as well as for the derivative Lfioss of consortium claims of his wife and adult son did not constitute an abuse of discretion, and the O’Connors are not entitled to additional relief for their derivative claims.

Having found that the collateral source rule was correctly applied in this case, that the awards to the O’Connors for the survival action and wrongful death damages were within the statutory cap set by the legislature in La. R.S. 13:5106, and that the amount of damages awarded to the O’Connors in the survival action, which included their respective loss of consortium claims, was not an abuse of discretion, we find no error in the trial court’s awards of damages.

DECREE

The trial court’s judgment is affirmed. The answer to appeal filed by the O’Connors is denied. Appeal costs in the amount of $1,661.55 are assessed against Elmer Litchfield in his capacity as the Sheriff of East Baton Rouge Parish.

AFFIRMED.

MCDONALD, J., concurs.

      . According to Dr. Zuekerman, Amyotrophic lateral sclerosis (ALS) is a neurological disorder that once contracted continues to worsen due to the loss of neurons in both the brain and the spinal cord. Dr. Zuekerman explained that ALS creates a progressive weakness and ultimately causes the death of those who have it.

      . See generally La. C.C. arts. 2315.1 and 2315.2.

      .It is undisputed in this case that the O'Connors’ lawsuit falls within the ambit of the provisions of La. R.S. 23:1034(B), which exempts workers compensation claims by sheriff deputies; these employees are ordinarily prohibited from filing lawsuits in tort for their work-related injuries against their employer. See Jones v. Traylor, 93-2144, p. 1, n. 1 (La. App. 4th Cir.4/28/94), 636 So.2d 1112, 1115 n. 1, writ denied, 94-1337 (La.9/16/94), 642 So.2d 193.

      . In ordinary slip and fall cases which do not implicate the duties imposed under La. R.S. 23:13, liability is based on theories of either strict liability, see La. C.C. art. 2317, negligence, see La. C.C. art. 2315, or both. Fonte-not v. Fontenot, 93-2479, pp. 2-3 (La.4/11/94), 635 So.2d 219, 221.

      . The Sheriff does not complain of the trial court's implicit finding that the failure to set out the warning cones was the cause-in-fact of Lt. O'Connor's death by ALS. Dr. Zucker-man testified that as an accepted risk associated with ALS, he believed the trauma Lt. O'Connor experienced as a result of his injuries from the slip and fall, especially to his back, “obviously caused spinal damage.” This reasonable factual basis duly supports the trial court finding and, thus, it is not manifestly erroneous.

      . On appeal, the Sheriff asserts that the trial court erred in imposing vicarious liability under La. C.C. art. 2320 against him for the negligence of the trustee who failed to place the warning cones, challenging also the finding that such negligence was the cause-in-fact of the O’Connors damages. Although the trial court’s written reasons expressly found "that the [Sheriff] was vicariously liable for failing to properly mark the wet areas with cones, as is the [Sheriff’s] stated policy, and that this failure was the cause in fact of the [O’Connors'] injuries,” reading the reasons in their entirety does not convince us that this was the sole basis the trial court relied upon to assess “one hundred percent (100%) of the fault and liability” against the Sheriff. Throughout the reasons, the trial court states the various arguments raised by the Sheriff and, addressing each one-by-one, explains why they lack merit ultimately assessing "one hundred percent (100%) of the fault and liability” against the Sheriff. Thus, we believe the reasons have alternative holdings for the trial court’s liability conclusion including imposition of liability directly against the Sheriff for his failure to properly disseminate the "housekeeping tasks performed by the trustees,” albeit not expressed as clearly as the vicarious liability holding. But even if our construction of the trial court’s reasons is faulty, it is the judgment — not the reasons for judgment — which the appellate court reviews. See Huang v. Louisiana State Bd. of Trustees for State Colleges and Universities, 99-2805, pp. 4-5 (La.App. 1st Cir. 12/22/00), 781 So.2d 1, 6. And where the Court of Appeal believes that the trial court reached the proper result, the judgment will be affirmed. Id. Because this record supports the imposition of liability directly against the Sheriff under La. R.S. 23:13, a discussion addressing whether the Sheriff can be vicariously liable for the trustee's negligence under the facts of this case is pretermitted. See and compare Bd. of Comm’rs of Orleans Levee Dist. v. Shushan, 197 La. 598, 611, 2 So.2d 35, 40 (1941) (reviewing court decides a case on the issues presented by the pleadings or evidence and not on the argument of counsel in the court below or even on reasons assigned by trial judge, and fact that trial judge decides the case on one of the points at issue does not preclude reviewing court from deciding the case on another point).

      . The Sheriff also suggests that the statutory cap includes legal interest and costs and, therefore, complains of the trial court’s assessment of these items against him. The express provisions of La. R.S. 13:5112 B and C permit these items and, therefore, the trial court's rulings are not erroneous. This assertion by the Sheriff is without merit.

      . See also La. R.S. 13:5106 D(4) (derivative claims include claims for loss of consortium).


source: Caselaw Access Project

author: FITZSIMMONS, J.

license: Public Domain

text:
    John AUGMAN v. CITY OF MORGAN CITY, Morgan City Police Department, Former Chief of Police “Unknown,” Officer Betty Augman, Officer James Richard, Detective Gilbert Blanchard, ABC Insurance Co., Morgan City Fire Department and Fire Chief L. Parker, Jr.
    No. 2003 CA 0396.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.
    Rehearing Denied Feb. 9, 2004.
    John Augman, Allen Correctional Center, Kinder, PlaintiffiAppellant, pro se.
    Arthur I. Robison, Lafayette, Counsel for Defendants/Appellees City of Morgan City, Officer James Richard, Officer Betty Augman, and Detective Gilbert Blanchard.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   FITZSIMMONS, J.

Petitioner/appellant, John G. Augman (Augman), appeals the district court’s grant of summary judgment dismissing his discrimination claim in favor of the City of Morgan City, Officer James Richard, Officer Betty Augman, Detective Gilbert Blanchard, L. Parker, and Morgan City-Fire Department (appellees are collectively referred to as “City”). Due to the trial court’s failure to address an outstanding motion to recuse, this court vacates the grant of summary judgment and remands the case to the trial court.

Augman’s petition alleged that his civil rights had been violated by the Morgan City Police Department. The City filed a motion for summary judgment, which was granted by the district court. In Aug-man’s appeal from the grant of summary judgment, he raises, among other issues, the failure of the court to rule on plaintiffs motion to recuse the trial judge prior to acting on defendant’s motion for summary judgment.

On October 24, 2002, Augman filed a motion to recuse the trial judge. In said motion, Augman alleged that the trial judge should be recused because: (1) the trial judge had presided over a criminal case involving petitioner in a previous trial, and evidence from that case was submitted as evidence in the instant case; (2) the trial judge might be called as a witness in the instant case, “specifically his testimony will be relevant to whether defendant James Richard perjured himself in the pri- or criminal trial”; (3) the trial judge had made an unfavorable ruling regarding the lack of merit of newly presented evidence to reverse the criminal case; (4) the trial judge had been biased against the petitioner in a prior criminal proceeding; and (5) the trial judge showed bias and exhibited acts of misconduct in the instant civil matter.

Augman asserted in his motion to recuse that he had hand-delivered a motion for default judgment to the trial judge on September 30, 2002. The trial | ¡¿judge allegedly demonstrated bias when he withheld filing the document for a default judgment into the record, notwithstanding his prior promise to Augman that he would “enter” it and deliver the judgment to the clerk of court. At the end of the motion to recuse appeared the following handwritten sentence: “Request for trial on Motion.” Thereafter, on October 31, 2002, Augman also filed an order to be signed by the judge setting a date for a hearing on the motion to recuse.

Grounds for recusal are expressly delineated in La. C.C.P. art. 151. Pertinent to Augman’s claim on appeal, La. C.C.P. art. 151 B(5) states: “A judge of any court, trial or appellate, may be recused when he ... [i]s biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.” The bias or prejudice is required to be of a substantial nature and based on more than conclusory allegations. Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 2000-1930, 2000-1931, p. 15 (La.App. 1 Cir. 9/28/01), 809 So.2d 1040, 1050 (citing Couvillion v. Couvillon, 2000-143, p. 9 (La.App 5 Cir. 9/26/00), 769 So.2d 747, 753, writ denied, 2000-3185 (La.1/12/01), 781 So.2d 562). Where the alleged bias or prejudice emanates from testimony and evidence set forth in the proceedings, the bias or prejudice is not of an “extrajudicial nature,” as is required to merit recusal. State v. Williams, 601 So.2d 1374, 1375 (La.1992) (citing United States v. Grinnell Corporation, 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966)).

The provisions of La. C.C.P. art. 154 state in relevant part: “If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc .... ” It has been jurispru-dentially established that where the motion to recuse fails to enunciate |4valid grounds for recusation, the district judge may overrule the motion without referring the matter to another judge. See State v. Littleton, 395 So.2d 730, 732 (La.1981) In the case at hand, however, the order to set a date for a hearing was never acted on by the judge. Moreover, there is no reflection in the minutes that the motion was ever addressed by the court. On November 12, 2002, the trial judge heard arguments on the City’s motion for summary judgment of the instant civil matter. He signed a judgment granting the motion for summary judgment in favor of the City on November 18, 2002.

Irrespective of the ultimate merits of Augman’s claim, Augman’s assertions of bias required the court to take some responsive action on the motion to recuse prior to proceeding further with substantive issues in the case. Accordingly, this court has no alternative but to vacate the trial court’s subsequent grant of summary judgment and to remand the matter to the trial court to address the extant motion to recuse. Attention to the remaining issues asserted in this appeal is deferred. All costs associated with this appeal, in the sum of $565.00, are assessed to the City of Morgan City.

VACATED AND REMANDED WITH INSTRUCTIONS.

      . On October 8, 2002, the trial judge denied the default judgment on the basis that an answer had been filed. The record reflects that an answer was filed into the court record by the City on October 10, 2002.

      . Although the court in State v. Williams cites La. Cr.C. art. 674, the pertinent portion of that article parallels the language expressed in La. C.C.P. art. 154.

      . A judgment denying a motion for recusation is interlocutory in nature and may be appealed only upon a showing of irreparable injury. La. C.C.P. art.2083; Schwing v. Dunlap, 125 La. 677, 51 So. 684, 685 (1910); LeBlanc v. LeBlanc, 451 So.2d 1279, 1280 (La.App. 3rd Cir.1984). There is no requirement that an interlocutory judgment be in writing, as it is sufficient for it to be entered into the minutes of the court. Domino v. Striplen, 366 So.2d 1035, 1036 (La.App. 1st Cir.), writ denied, 369 So.2d 457 (La.1979).


author: GAIDRY, J.

text:
    Judy JEFFERSON v. Charles SOILEAU and Liberty Mutual Insurance Company, State Farm Automobile Insurance Company and City of Baton Rouge, Parish of East Baton Rouge.
    No. 2003 CA 0541.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.
    Rehearing Denied Feb. 9, 2004.

      Paul P. Matzen, Baton Rouge, Counsel for Plaintiff/Appellee Judy Jefferson.
    Eric E. Pope, Marvin H. Olinde, Baton Rouge, Counsel for Defendant/Appellee Charles Soileau and Liberty Mutual Insurance Company.
    Terry T. Dunlevy, Baton Rouge, Counsel for Defendant/Appellee State Farm Mutual Automobile Insurance Company.
    Gwendolyn Brown, Randy Ligh, Baton Rouge, Counsel for Defendant/Appellant City of Baton Rouge, Parish of East Baton Rouge.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   GAIDRY, J.

In this case involving a rear-end collision, defendant appeals a trial court judgment rendered in accordance with a jury verdict finding defendant partially at fault in causing plaintiffs injuries. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 3, 1997, shortly after pulling away from a red light, Charles Soileau drove his vehicle into the back of a vehicle driven by plaintiff, Judy Jefferson. After being sued by Jefferson, Soileau filed a third party demand against the City of Baton Rouge/Parish of East Baton Rouge (“City-Parish”), alleging that the true cause of the accident was the actions of the driver of an East Baton Rouge Parish Mosquito Abatement Truck. The mosquito abatement truck was traveling in front of Jefferson’s car and sprayed pesticide that obstructed the view of following drivers, immediately prior to the accident. Jefferson later amended her petition to add the City-Parish as a defendant.

After a trial on the merits, the jury assigned eighty percent of the fault in causing the accident to Soileau and twenty percent of the fault to the City-Parish. The City-Parish appealed, making the following assignments of error:

1. The trial court erred in finding the City-Parish was at fault in causing the accident.
2. The trial court erred in assigning twenty percent of the fault to the City-Parish.
3. The trial court erred in finding that the facts of the case supported the issuance of a jury instruction on the “sudden emergency” doctrine.
|44. The trial court erred in issuing only part of the instruction on the “sudden emergency” doctrine, thereby leaving the jury with a misunderstanding of the law applicable to its deliberations.

DISCUSSION

Liability of the City-Parish

The City-Parish argues that the jury erred in assigning it any degree of fault because the facts presented at trial did not support a finding that the conduct of the driver of the City-Parish truck was a cause-in-fact of the accident and because the sole cause of the accident was Soileau’s negligence in following too closely.

It bases this argument on evidence presented by the City-Parish at trial that the pesticide emitted from the City-Parish truck dissipates within a few seconds’ time and that the pesticide is sprayed at a fixed forty-five degree angle; therefore, the pesticide emitted by the truck could not have obstructed Jefferson’s or Soileau’s vision.

However, this evidence was contrary to the accounts of the accident given by Jefferson and Soileau. Jefferson testified that soon after she pulled away from the red light, she heard a noise “like a lawn mower motor” and then saw a big white cloud of smoke come from behind the City-Parish truck. She could not see where she was going and was afraid she would rear-end the City-Parish truck because she could not see it through the smoke, so she applied her brakes. She was subsequently rear-ended by Soileau.

Soileau testified that soon after pulling away from the red light, he saw the smoke and was alarmed because he did not know what it was and he had his young son in the car. When he realized that the smoke was in fact pesticide, he began to try to close the windows and sun roof to protect his |sson. Soileau was driving his daughter’s car and was not familiar with the exact location of the window and sun roof controls, so he looked down to try to roll up the windows, and when he looked back up, he had lost sight of the car in front of him because of the smoke. By the time he could see the car in front of him, he was unable to prevent a rear-end collision. Soileau also reported to the police officer investigating the accident that his vision had been obstructed by the cloud of smoke emitted by the City-Parish pesticide truck.

It is clear that the jury believed the testimony of Jefferson and Soileau that their vision was obscured by the smoke from the City-Parish truck and disbelieved the evidence put on by the City-Parish that the pesticide emitted by the truck could not have obscured their vision. When findings are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact; only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). This assignment of error is without merit.

Turning to the City-Parish’s argument that the jury erred in allocating twenty percent of the fault to the City-Parish, we find that this assignment of error likewise lacks merit. A determination of the allocation of fault by the trier of fact is a factual finding. Guidroz v. State, Through the Dep’t of Transp. and Dev., 94-0253 (La.App. 1 Cir. 12/22/94), 648 So.2d 1361, 1366. Factual findings cannot be overturned in the absence of manifest error. The issue to be resolved by this court is not whether the trial court was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Cazes v. Parish of West Baton Rouge, 97-2824 (La.App. 1 Cir. 12/30/98), 744 So.2d 54, 61. Based upon the evidence in the record, it was reasonable for the jury to conclude that negligence of the driver of the City-Parish pesticide truck in emitting pesticide in the middle of traffic, and thus obscuring the view of following motorists, contributed twenty percent to the cause of the accident.

“Sudden Emergency” Doctrine Jury Instruction

The City-Parish complains that the “sudden emergency” instruction given the jury was faulty because the jury was not instructed that the “sudden emergency” doctrine does not apply when the person claiming the exception is not free from fault.

The instruction given to the jury read: The general rule is that the following motorist is presumed at fault if he collides with the rear of the leading vehicle. An exception to this rule is that when a following motorist is suddenly confronted with an unanticipated hazard created by a leading vehicle which could not be reasonably avoided, the following driver would be adjudged free from fault.

The instruction as given clearly states that the fault of the person claiming the exception is an issue. The phrase “could not be reasonably avoided” tells the jury that it is only when the driver claiming the “sudden emergency” is not negligent that the doctrine applies. This instruction adequately explains the applicable law.

The City-Parish also claims that the “sudden emergency” instruction was inappropriate under the facts of this case because the “sudden emergency” doctrine was subsumed in comparative fault. However, the First Circuit recently stated in Duzon v. Stallworth, 01-1187 (La.App. 1 Cir. 12/11/02), 866 So.2d 837, writs denied, 03-0589, 03-0605 (La.5/2/03), 842 So.2d 1101, 1110, that even though the “sudden emergency” doctrine |7was developed when contributory negligence was a complete bar to recovery, we continue to apply the doctrine today.

Furthermore, even if the instruction had been inappropriate, the proper inquiry in determining whether a jury verdict should be overturned on the basis of an erroneous jury instruction is whether the jury was misled to such an extent that it was prevented from doing justice. Nicholas v. Allstate Ins. Co., 99-2522, p. 8 (La.8/31/00), 765 So.2d 1017, 1023.

The verdict form provided to the jury in this case did not ask the jury whether they found that there was a “sudden emergency.” The jury was simply asked whether each defendant was negligent and whether that negligence was a cause of the accident. The jury answered that Soileau was negligent and assigned eighty percent of the fault to him and that the City-Parish driver was negligent and was twenty percent at fault. The jury obviously did not find that there was a sudden emergency because the instruction on sudden emergency told them that if the doctrine applied, Soileau would be adjudged free from fault.

In Coutee v. State Farm, 664 So.2d 542 (La.App. 3 Cir 11/2/95), the trial judge actually gave an incorrect instruction on the “sudden emergency” doctrine — he told the jury that one who finds himself in a position of peril without sufficient time to weigh and consider all circumstances is not required to exercise such control or degree of care as is required of one who has ample opportunity for full exercise of reason. The court also gave an instruction on comparative negligence. The third circuit found that despite the erroneous instruction on the “sudden emergency” doctrine, the jury charges as a whole adequately instructed the jurors that their verdict should reflect any negligence they attributed to the driver claiming the sudden emergency. Because the jury was adequately informed about comparative 1 snegligence and did assign a percentage of fault to the defendant driver who was claiming the sudden emergency, it was obvious that the tainted jury instruction did not prevent the jury from doing justice.

In our case, the jury was charged on comparative negligence and did assess a percentage of fault to Soileau, so even if the instruction had been faulty, the verdict was not affected. This assignment of error is without merit.

DECREE

For the above reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the City-Parish.

AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Robert DEFRAITES, Individually and as Representative of those similarly situated v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Oasis Horticultural Services, Inc., Individually and as Representative of all those similarly situated.
    No. 03-CA-1081.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.
    Rehearing Denied Feb. 9, 2004.
    Writ Denied March 12, 2004.

      David L. Haik, Metairie, LA, for Robert Defraites, et al., Plaintiff/Appellee.
    Wayne J. Lee, Lesli D. Harris, Stone Pigman Walther Wittmann, L.L.C., New Orleans, LA, for State Farm Mutual Automobile Insurance Company, et al., Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

Defendants, Oasis Horticultural Services, Inc. and State Farm Mutual Automobile Insurance Company, appeal from a judgment of the trial court certifying this action as a class. For the reasons stated more fully herein, we reverse the ruling of the trial court and remand the matter for further proceedings.

Facts and Procedural History

On August 2, 2002, plaintiff herein, Robert Defraites, filed the instant class petition pursuant to the provisions of La. C.C.P. art. 591, individually on his own behalf and on behalf of other plaintiffs similarly situated but yet unidentified. Plaintiff named as defendants Oasis Horticultural Services, Inc. and its liability insurance carrier, State Farm Mutual Automobile Insurance Company. Also made defendants in this action were the class of persons insured through State Farm and similarly situated as Oasis Horticultural Services but yet to be identified.

In this petition, Defraites alleged that on July 1, 2002, his vehicle was damaged in an automobile accident with a vehicle owned and operated by Oasis and its employees and insured by State Farm. Defraites alleged that his vehicle sustained both damage in cost of repairs and a diminished value attributable to the vehicle’s involvement in the accident. Plaintiff farther 13alleged that although State Farm paid for the costs to repair his vehicle, they failed to pay for the vehicle’s diminished value. Defraites stated in the petition that he made a claim for diminution in value of the vehicle with State Farm, and State Farm failed to initiate loss adjustment for this item of damages within fourteen days of the notification of loss. Plaintiff argues that State Farm violated the provisions of La. R.S. 22:658(A)(3) and (4), and was therefore liable for the amount of diminution in value sustained by plaintiff as well as damages in the form of penalties pursuant to La. R.S. 22:1220(C).

In addition to his claim for individual damages, plaintiff also requested that this claim be certified as a class action on behalf of all similarly situated persons who have made or will henceforth make third party property automobile damage claims against State Farm and its insureds for damages sustained wherein State Farm failed to pay losses for diminution in value. Plaintiff also sought a defendant class to be comprised of the past and future State Farm insureds that are targets of the vehicular property damage claims asserted by members of the putative class.

On September 30, 2002, plaintiff filed a motion to certify the action as a class action pursuant to La. C.C.P. art. 592. On October 21, 2002, defendants filed exceptions, affirmative defenses and answer to plaintiffs petition. Thereafter, the parties conducted discovery on plaintiffs request to certify the class, and on December 20, 2002, defendants brought a motion for summary judgment to dismiss plaintiffs individual claims of diminution in value on the basis that plaintiff failed to submit evidence to show he was entitled to this item of damages. On the same date, defendants also brought a motion for partial summary judgment to dismiss plaintiffs class action demands based on defendants’ claims that the requirements of a class action [4cannot be satisfied as a matter of law. By judgment dated February 5, 2003, the trial court denied both of these motions.

On March 25, 2003, plaintiff filed a memorandum for certification of plaintiff and defendant classes with attachments. Defendants filed an opposition to this memorandum on April 8, 2003. On April 16-17, 2003, the trial court conducted a hearing on plaintiffs motion for class certification. The record was left open to allow for depositions and post-hearing memoranda.

By order rendered on June 5, 2003, the trial court granted plaintiffs motion to certify both a plaintiff and defendant class, and held that all issues raised by the pleadings in this action will be tried on a class-wide basis as pertains to each class. Although defendants filed a request for written reasons, no reasons for judgment were assigned by the trial court. A sus-pensive appeal was granted by the trial court in this matter on July 7, 2003.

Defendants now appeal on the basis that the trial court erred in certifying this action as a class pursuant to the provisions of La. C.C.P. art. 591, et seq. Plaintiff has answered the appeal seeking damages and costs against defendants for the filing of a frivolous appeal.

Applicable Law

The judgment certifying the class in this action is appealable. Eastin v. Entergy Corp., 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835. In Louisiana, the class action procedure is governed by the provisions of La.C.C.P. art. 591, et seq. Article 591 provides as follows:

Art. 591. Prerequisites; maintainable class actions
A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members | Ris impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3)The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
| fi(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.
C.Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

Under Louisiana law, a class action may be certified only if the numerosity, adequacy of representation, and commonality requirements are present. Billieson v. City of New Orleans, 98-1232 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 154, writ denied, 00-946 (La.10/29/99), 749 So.2d 644 and writ denied, 99-960 (La.10/29/99), 749 So.2d 645. The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the class action. Id.; Cooper v. City of New Orleans 01-115 (La.App. 4 Cir. 2/14/01), 780 So.2d 1158, writ denied, 01-720 (La.5/11/01), 792 So.2d 734. In order to meet class certification requirements, plaintiff must meet all of the requirements of La. C.C.P. art. 591(A) and fall within one of the sections of art. 591(B).

A trial court has great discretion in deciding whether to certify a class, and its decision will not be overturned absent manifest error. Adams v. CSX Railroads, 92-1077 (La.App. 4 Cir. 2/26/93), 615 So.2d 476. Any errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action, because a class certification order is subject to modification if later developments during the course of the trial so require. McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984).

|7The purpose and intent of a class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the class representatives who bring the action, but to all others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise their option of exclusion. Doerr v. Mobil Oil Corp., 01-775 (La.App. 4 Cir. 2/27/02), 811 So.2d 1135, 1141, writ denied, 02-920 (La.5/31/02), 817 So.2d 105 and writ denied, 02-938 (La.5/31/02), 817 So.2d 106.

The trial courts ruling

In the present case, the trial court apparently found that plaintiffs claims met all of the criteria set forth in La. C.C.P. art. 591(A). Additionally, the trial court certified both the plaintiff and defendant classes pursuant to La. C.C.P. art. 591(B)(2) on the basis that the party opposing the class (State Farm) has acted or refused to act on grounds generally applicable to the class.

The plaintiff class defined by the trial court consists of persons who have made third party vehicular property damage claims against State Farm insureds and State Farm since August 3, 2001, and continuing into the future, as well as persons who have made such claims before August 3, but excludes claims that are in separate litigation, or that have been prescribed, settled, barred by res judicata or involve vehicles that have been deemed a total loss. In addition, the class definition is limited to claimants in situations where State Farm or its insured failed to pay for non-repair related diminution in value, or failed to initiate loss adjustment for non-repair related diminution in value and /or failed to make an offer of settlement for non-repair related diminution in value. The defendant class is comprised of the past and future State Farm insureds who are the targets of the vehicular | sproperty damage claims asserted or to be asserted in the future by members of the putative plaintiff class.

In reviewing the trial court’s ruling on appeal, this Court is not called upon to review whether plaintiff will ultimately prevail on the merits, nor can this court review plaintiffs claims on their substantive merit. Eisen v. Carlise Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Duke v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078, writ denied, 01-637 (La.4/27/01), 791 So.2d 637. Rather, the task presented to this court is to determine whether the certification of this action as a class is appropriate in light of Louisianas established criteria. Nevertheless, an examination of plaintiffs substantive legal claims is necessary to make a determination of whether certification of a class action is appropriate in this case.

In support of its position that a class action is appropriate in this case, plaintiff contends that State Farm is obligated by law to initiate loss adjustment on claims for diminution of value, and has systematically failed or i-efused to do so. Plaintiff relies on the following provisions of La. R.S. 22:658(A) obligating State Farm to initiate loss adjustment for a third party claim pursuant to the following provisions of this statute:

(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.
(4) All insurers shall make a written offer to settle any property damage claim within thirty days after receipt of satisfactory proofs of loss of that claim.

Plaintiff contends that based on these provisions, State Farm is statutorily obligated to initiate loss adjustment and make a written offer of settlement specifically for third party claims of diminution in value. 1 ¡^Plaintiff contends that the cost of repair estimate routinely performed by State Farm in initiating loss adjustment qualifies as sufficient proof of loss giving the insurer adequate notice of a claim of diminished value. Plaintiff argues that based on State Farms uniform and consistent failure to comply with this statute by making a written offer of settlement for diminution in value to third party claimants, injunctive relief in the form of a class action is appropriate to require State Farm to comply with state law. In light of State Farms alleged failure to adjust this loss, plaintiff also claims relief pursuant to the provisions of La. R.S. 22:1220(0 which provides for penalties in an amount not to exceed two times the damages sustained or $5,000, whichever is greater.

Diminution in Value

Louisiana law provides that diminution in value of a vehicle involved in an accident is an element of recoverable damages if sufficiently established. In a case involving damages to an automobile, where the measure of damages is the cost of repair, additional damages for depreciation may be recovered for the diminution of value due to the vehicle’s involvement in an accident. However, there must be proof of such diminished value. Davies v. Automotive Cas., Ins., 26,112 (La.App. 2 Cir. 127/94), 647 So.2d 419. The jurisprudence awarding damages for depreciation involves facts wherein a repaired vehicle decreases in value, despite a quality repair job, solely due to the fact that the vehicle was involved in a collision. Smith v. Midland Risk Inc. Co., 29,793 (La.App. 2 Cir. 9/24/97), 699 So.2d 1192; Davies, supra.

Plaintiffs Claim

The record in this case indicates that Robert Defraites was involved in an automobile accident with a State Farm insured on July 1, 2002. The |inrecord further shows that State Farm initiated loss adjustment of Mr. Defraites property damage claim within two days of receiving notice of the claim. State Farm obtained an estimate of loss on Mr. Defraites vehicle in the amount of approximately $2400, and remitted a check to him in this amount within two days following the accident. Mr. Defraites failed to negotiate the cheek however, indicating that he had obtained a higher estimate to repair the vehicle and that he also sought compensation for diminution in value of the vehicle. Mr. De-fraites vehicle was eventually repaired at a cost much lower than the estimate provided by State Farm and he sold the vehicle a short time later. This lawsuit followed.

Analysis

Certification of a class action is not proper unless the plaintiff satisfies every element of Article 591(A) and the requirements of either Article 591(A), (B) or (C). We have carefully examined the entire record before us, including the testimony and exhibits, and conclude that plaintiff has failed to meet its burden of proving that class certification is proper in this case.

By this action, plaintiff seeks a declaratory judgment applicable to the entire class that State Farm is obligated to pay a third party claim of diminution in value due solely to the fact that the vehicle was involved in an accident. There is no dispute in this case that diminution in value is an available item of damages in an automobile accident case. However, Louisiana law does not presume that there is inherent diminution in value involved in every automobile accident. Rather, recovery in automobile accident cases is generally limited to the cost of repair. Romco, Inc. v. Broussard, 528 So.2d 231 (La.App. 8 Cir. 6/22/88), writ denied, 533 So.2d 356 (La.11/28/88). Additional damages may be recovered for diminution in value by virtue of the automobile being involved in an accident, provided In proof of such diminished value is made. Giles v. Lafayette, Inc. v. State Farm Mut. Auto. Ins. Co., 467 So.2d 1309, 1310-11 (La.App. 3 Cir.1985). See also, Smith v. Midland Risk Ins. Co., supra, 699 So.2d at 1196.

Any plaintiff seeking to recover diminution in value must individually allege and prove that loss. As with other tort claims, no mechanical rule can be applied in the assessment of property damages claims and the claims must be assessed on a case by case basis. Davies v. Automotive Cas. Inc., supra, 647 So.2d at 422.

Additionally, the evidence in the record before us supports a conclusion that there is no presumption of inherent diminution in value in automobile tort cases. Plaintiffs own expert testimony demonstrates the speculative nature of inherent claims and calculations of diminution in value. Further, although plaintiff contends that State Farm is statutorily required to make an offer of diminution in value to third party claimants where such a claim is not raised by the claimant, Louisiana statutory authority imposes no such requirement. La. R.S. 22:658(A) requires the insurer to initiate loss adjustment of a property damage claim within a specified period of time, but there is nothing in this statute which requires the insurer to make an offer for an item of damages which is neither claimed nor factually supported based on the evidence.

Claims for diminution in value as well as claims for failure to comply with statutory obligations to initiate loss adjustment must be assessed on an individual basis. Plaintiffs claim for statutory penalties also requires individualized proof. Although plaintiff asserts he seeks a declaratory-judgment for the class, he also seeks penalties under R.S. 22:1220. Plaintiff | ^contends that a $5,000 penalty is an automatic assessment, and there is no need for an individualized analysis which would preclude class certification. However, plaintiffs entitlement to penalties under 22:1220 are predicated on liability for a violation of 22:658, which requires a case-by-case analysis as discussed above. Further, the amount of the penalty cannot be resolved on a class-wide basis. The specific terms of the statute provide that the amount of the penalty is greater than two times the damages or $5,000, whichever is greater, and requires an examination of the actual damage caused by a violation of the statute. Thus, a determination of the amount of any penalty owed for the insurer’s noncompliance with the statute must also be determined on a case-by-case basis.

Under the circumstances presented here, we conclude that plaintiffs claims fail to meet the requirements of La. C.C.P. art. 591(A). Rather, the evidence presented in this case indicates that individual adjudication of plaintiffs claims is required. In order to grant the injunctive and declaratory relief plaintiff requests, the trial court will have to examine each putative class member’s claim and make separate, fact-based determinations on the following issues:

1) whether the State Farm insured was at fault in the accident;
2) whether a diminution in value in the vehicle occurred;
3) whether State Farm violated its statutory obligation to initiate loss adjustment and offer settlement; and
4) whether the claimant is entitled to penalties and a quantification of the amount of penalty.

In sum, we conclude that there are too many individualized variables which come into play in a claim for diminution in value in an automobile | ^accident case to make the action appropriate for certification of a class. Accordingly, we conclude that the trial court manifestly erred in certifying this action as a class.

We also find that the nature of this action for injunctive and declaratory relief with a claim for statutory penalties does not meet the requirements for certification under La. C.C.P. art. 591(B)(2). This provision requires the plaintiff to demonstrate that defendants have acted or refused to act toward the claimant class members for essentially the same reason. In the present case, there has been no evidence presented that State Farm has failed to act toward the putative class members for essentially the same reason. Rather, the evidence indicates the opposite. State Farm introduced evidence that it recognizes a third party’s claim for diminution in value, and its decisions and actions as to each claim are specific to the facts and circumstances of each individual claim. Because the circumstances of each claim against State Farm will be varied, certification of a class pursuant to article 591(B)(2) is not appropriate.

In addition, certification of a class pursuant to article 591(B)(2) does not extend to cases in which the appropriate and final relief relates exclusively or predominately to money damages. See, note to Federal Rule 23(b)(2) on which article 591(B)(2) is based; Allison v. Citgo Petroleum Corp, 151 F.3d 402 (1998). Plaintiff seeks both penalties for State Farm’s failure to comply with its alleged statutory obligation to make an offer of settlement for diminution in value and liability coverage for losses attributable to non-repair related diminished value property damage. In resolving these monetary issues, the trial court will have to determine:

1) whether diminished value was sustained for each member of the putative class;
1142) the amount of diminished value, which will be dependent on facts such as the age, make, model, and condition of the vehicle;
3) the type and amount of damage sustained by the vehicle in the accident;
4) the quality of repair to the vehicle.

Thus, both plaintiffs claim for coverage and for statutory penalties will need to be determined on an individualized, case-by-case basis. Further, these claims are not incidental to plaintiffs claims for declaratory and injunctive relief as plaintiff suggests. As such, class certification is not proper under the provisions of La. C.C.P. art. 591(B)(2). The trial court erred in concluding otherwise.

Moreover, our review of the record indicates that the defendant class defined by the trial court does not comply with the criteria applicable to class actions. The defendant class consists of as yet unidentified and unrelated State Farm insureds and future insureds. These defendants have been or will be involved in various automobile accidents with the putative plaintiff class members. Plaintiff only has a claim against one member of the defendant class, Oasis Horticultural Services, and thus cannot protect the interests of other members of the putative plaintiff class who do have a cause of action against defendant class members. Further, as with the plaintiff class, the defendant class fails to meet all of the requirements of La. C.C.P. art. 591(A), including typicality and commonality. The individual circumstances of each accident, issues of liability, distinct insurance policies and available defenses preclude a finding of commonality.

Additionally, a defendant class is not specifically authorized by La. C.C.P. art. 592(B). The specific language of that statute suggests that the |1sparty opposing the class action is the defendant, and that the statute authorizes only a plaintiff class. Thus, we find that the trial court erred in certifying the defendant class in this case.

Conclusion

Accordingly, for the reasons assigned herein, we conclude that the trial court abused its discretion in certifying both the plaintiff and defendant classes in this case. This matter fails to meet the criteria for a class action set forth pursuant to Louisiana law, and the trial court’s ruling certifying the action as a class is hereby reversed and set aside. The plaintiff and defendant classes established by the trial court are dismissed. Further, the matter is remanded to the trial court for further proceedings consistent with this opinion.

All costs of this appeal are assessed against plaintiff.. Further, based on our holding herein reversing the judgment of the trial court, we find no merit in plaintiffs contentions raised by answer to the appeal that the appeal is frivolous or lacks merit.

REVERSED AND REMANDED.

      . In support of this contention, plaintiff cites a case from the state of Georgia. However, the Georgia statute applicable to adjustment of insurance claims is distinguishable from the Louisiana statute, and we fail to find the jurisprudence in Georgia controlling.


author: | WILLIAMS, J.

text:
    Richard HANELINE & Ronnie Haneline, Plaintiff-Respondent v. Patsy F. WALKER and Shelter Mutual Insurance Company, Defendant-Applicant.
    No. 38,523-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 30, 2004.

      Hudson, Potts & Bernstein by Charles W. Herold, III, Monroe, Albert C. Mills, IV, for Applicant, Shelter Mutual Insurance Company.
    Mary A. Bryant, Monroe, Cook, Yancey, King & Galloway by Gregg A. Wilkes, Fewell & Rhymes by J. Michael Rhymes, for Respondent, Patsy F. Walker.
    Jack Wright, Jr., for Respondents, Richard and Ronnie Haneline.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   | WILLIAMS, J.

Applicant, Shelter Mutual Insurance Company, seeks review of a denial of its motion for summary judgment on a question of insurance coverage. The essential facts are undisputed.

Shelter’s insured, Patsy Walker, filed a sexual harassment lawsuit against Richard and Ronnie Haneline alleging a hostile work environment at Haneline’s Men’s Wear Store where Ms. Walker had been employed as the office manager. However, her claim subsequently was dismissed as a matter of law because Haneline’s did not employ at least 15 persons as required by Louisiana sexual harassment law. Richard and Ronnie Haneline then filed suit against Ms. Walker for defamation and named Shelter as a defendant because Shelter was Ms. Walker’s homeowner’s insurer. Shelter moved for summary judgment based on an exclusion in the homeowner’s policy for personal injury arising out of business pursuits of any insured. However, the trial court denied the motion for summary judgment, finding that the exclusion did not apply because Ms. Walker did not make the allegedly defamatory statements while she was employed at Haneline’s Men’s Wear Store.

Shelter argues that the central issue is the correct interpretation of the words “arising out of’ as used in the insurance policy, and that the words essentially apply a “but for” test to determine whether the exclusion applies. Shelter then argues that “but for” Ms. Walker’s employment at Haneline’s, the sexual harassment claims would not have been made and there would have been no alleged defamation to cause injury to the plaintiffs. Thus, Shelter argues that the trial court erred in concluding that because Ms. |2Walker did not make the allegedly defamatory statements during the time she was employed at Haneline’s, the exclusion did not apply.

We disagree with Shelter’s argument because we find the applicability of the exclusion to turn on the proper interpretation of the term “business pursuits.” Because Ms. Walker was no longer employed at Haneline’s at the time she allegedly made the defamatory statements, we hold that her acts in this regard were not “business pursuits” and thus were not subject to the business pursuits exclusion of the homeowner’s policy. A case adopting this view is Nationwide Mutual Fire Insurance Company v. Erwin, 240 Ga.App. 816, 525 S.E.2d 393 (1999). In Nationwide, the plaintiffs sought recovery for libel, slander, and invasion of privacy following the termination of a business relationship between the plaintiff and Nationwide’s insured. Nationwide provided the insured with homeowner’s coverage which specifically defined personal injury to include defamation, but the policy excluded injuries “arising out of business pursuits of an insured.” Nationwide argued that the exclusion prevented coverage because the dissolution of the contract was the precipitating cause of Nationwide’s insured’s acts. However, the trial court entered summary judgment in favor of the insured on the question of Nationwide’s duty to defend. On appeal, the Georgia appellate court noted that exclusions are to be narrowly construed against an insurer, and that under Georgia jurisprudence, when determining whether an insurance policy exclusion covers certain conduct, the exclusionary phrase “arose out of’ focuses on the genesis of the plaintiffs claim. The court then noted that the plaintiffs claims were based on acts that occurred during the year after the termination of the business | ^relationship between the plaintiff and Nationwide’s insured. Under those circumstances, the court concluded that the alleged acts did not arise out of a business pursuit of the insured because, after termination, the insured had no trade or profession until she began her own business.

The court also noted that Nationwide argued the motivation for its insured’s actions was revenge for perceived unfair treatment in the termination of her former business relationship with the plaintiff. However, the court stated that personal vendettas did not constitute the pursuit of business, even if motivated by bitterness from a former business relationship. Instead, the court stated that the focus had to be on the acts themselves and on their logical connection to furthering the insured’s business at the time of the act’s commission. The absence of such a connection meant that the policy in that case covered the claims asserted.

As in Nationwide, the homeowner’s policy in this case specifically defines personal injury to include defamation, and the jurisprudence of this state, like that of Georgia, narrowly construes exclusions against the insurer. Furthermore, as in Nationwide, the alleged defamation occurred after the insured’s employment relationship had ended. Thus, at the time of the alleged acts’ commission, no logical connection existed between the alleged acts and the furtherance of the insured’s business pursuits. Accordingly, we hold that the exclusion does not apply to bar coverage under the policy in the instant case, and that the trial court correctly denied applicant’s motion for summary judgment. The writ is hereby denied.

WRIT DENIED.