author: b COOKS, Judge. hAMY, J.,

text:
    Lawrence SMITH v. ROY O. MARTIN LUMBER COMPANY.
    No. 03-1441.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2004.
    Rehearing Denied May 19, 2004.

      Russell L. Sylvester, Brittain & Sylvester, LLP, Natchitoches, LA, for Plain-tiffiAppellee, Lawrence Smith.
    John F. Wilkes, III, Lisa E. Mayer, Lafayette, LA, for Defendant/Appellant, Roy O. Martin Lumber Company.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and ELIZABETH A. PICKETT, Judges.
   b COOKS, Judge.

The employer appeals the judgment of the Office of Workers’ Compensation finding Lawrence Smith was disabled as a result of a compensable work accident and awarding him certain medical costs allegedly associated with the injury. The employer also appeals the award of mileage expenses, as well as the assessment of penalties, attorney fees and court costs. For the following reasons, we affirm the judgment.

FACTS

Lawrence Smith began his employment with Martco Limited Partnership in July, 1996. On February 18, 2002, Smith arrived at Roy O. Martin Lumber Company, a Martco plant, where he was working as a millwright. In his oral reasons for judgment, the workers’ compensation judge set forth the facts surrounding this case:

[Smith] testified that on or about February the 18th of 2002, that he arrived to the plant at his normal arrival time, which was approximately 6:30 a.m. He was to begin his shift work at 7:00 a.m. He testified that he got his lunch box and he clocked in at the guard gate. And when he exited the guard gate, he must have stepped wrong because he felt a catch in his back. Then he went on and continued to retrieve his tools from his locker and attend the safety meeting. And that the walk from the guard house to his locker was approximately a quarter of a mile; that as he made that walk, that his pain subsided somewhat and he felt that it was bearable and that he only had — probably had a pulled muscle. He said he retrieved Ms tools, put them in the buggy, went to the safety meeting. He didn’t complain to anyone at the safety meeting about his back pain. After the safety meeting, he put his tools on his shoulder, climbed some steps to go to his work station. On his climb of these steps, he said he felt a sharp pain in his lower back that brought him to his knees.
He testified he went on to his saw line and attempted to perform his job duties. But within about an hour, hour and a half, the pain got so severe, he reported the pain to his foreman, Mr. Jerome. And this foreman said he needed to see Mr. Mike Fontenot and may need to go home. They took him down to Mr. Mike Fontenot’s office. An accident report was made by Mr. Mike Fontenot. The report indicated — The report filled [sic] on the same date indicated that Mr. Smith was j aclocking in and walking through the door. When he stepped through the door and turned, he felt a pain above the left leg and in his back above the buttock area. And this was dated February the 18th of 2002.
The company nurse, Ms. Colleen Van-Mol, was called to see the plaintiff at Mike Fontenot’s office. She testified that Mr. Smith seemed to be in severe pain, that she took him to the Louisiana Occupational Health Services Clinic. She testified that on the way to the Louisiana Occupational Health Services Clinic, that Mr. Smith told her that he had been taking Arthrotec, an arthritis medication which was prescribed to him by the V.A. Hospital. She testified that on the drive to Louisiana Occupational Health Services, that Mr. Smith told her about the pain he experienced going up the stairs. When he got to the Louisiana Occupational Health Services Clinic, the history given in that clinic’s report is that he was walking, he stepped wrong, he felt a sharp pain in his low back. It started bothering him more after he walked up and down stairs. He was told to use ice and heat and to return to his regular duties. Ms. Colleen VanMol said she brought Mr. Smith back to the plant. And because he seemed to be in pain — Although it was less pain because he had received an interjection — she told him to go home.
Mr. Smith’s testimony was that he attempted to be seen by a physician, called Ms. Colleen VanMol the next day. He hadn’t received a phone call from her by 11:30 a.m. on that day, so he had his son bring him to the V.A. Hospital. The V.A. Hospital wasn’t quite sure what his condition was because, on that occasion, he had a fever, as well. Subsequently, he was diagnosed with an acute disc herniation by the V.A. Hospital. And he underwent low back surgery. And he has not returned to work since his low back surgery, that Martco Partnership has not offered him any jobs. This was corroborated by his wife.
Mr. Terry Garrett testified on behalf of the employer that the claim was essentially denied by Martco Partnership because they felt like he didn’t identify a specific event, that taking a step out of the guard house had nothing to do with the job duties of Mr. Lawrence Smith and that Mr. Lawrence Smith had made misrepresentations because the accident report completed by Mr. Mike Fontenot didn’t contain any information about going up and down steps or any pain on the steps. However, they had on that— they had in their possession, during their investigation, a report from the Louisiana Occupational Health Services on the same date that he reported pain in his low back, making a step out of the guard house, that it worsened going up and down the steps. Also, Ms. Colleen VanMol testified that on the same date, she was told that by Mr. Lawrence Smith.
They also assert that he made misrepresentations because, in his questionnaire filled out at the Louisiana Occupational Health Services, he indicated he had no previous back pain, and that this Court should not credit Mr. Smith’s testimony that he was in such severe pain on that occasion, that he didn’t understand the questionnaire or appropriately 13fill it out. He was assisted by Ms. VanMol when he was at the Louisiana Occupational Health Services. Ms. Van-Mol had been told, on the way from the plant to Louisiana Occupational Health Services, that he had been taking Ar-throtec. The medical records obtained by the employer, in their search of previous back problems, only indicate that he had occasional low back pain, that he had never been diagnosed with an injury, that he had had some testing done and was never diagnosed with a disc herniation, which was the job diagnosis from this job incident.

The workers’ compensation judge determined that Smith suffered a compensable accident and was entitled to temporary total disability benefits from February 19, 2002 through February 3, 2003, at which time Smith was released to work at modified duty. Smith was awarded supplemental earnings benefits from February 4, 2003 continuing until it was determined that they might be reduced or terminated. The WCJ also awarded Smith all necessary and reasonable medical care as well as penalties and attorney fees for Martco’s failure to pay indemnity benefits, medical expenses associated with his back injury, and medical expenses associated with the anal fissures. Martco was awarded a credit for the wages in lieu of compensation benefits which were paid, but their allegation of employee fraud under La.R.S. 23:1208 was denied. The WCJ also refused to grant Martco a credit under La. R.S. 23:1212 for benefits which were expended under their Employee Benefit Trust, as well as refusing Martco’s request to apply the reimbursement fee schedule of La.R.S. 23:1034.2. Martco perfected this appeal.

ANALYSIS

I. Work-Related Accident

Martco contends Smith failed to put forth any evidence of an actual, identifiable, precipitous event which caused his disc herniation.

To receive workers’ compensation benefits, a worker must first establish, by a preponderance of the evidence, “personal injury by accident arising out of and in |4the course of his employment.” La.R.S. 23:1031(A). A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert International Inc., 593 So.2d 357 (La.1992); West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers and spouses, as well as by the medical evidence. West, 371 So.2d 1146.

The WCJ’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Pauley v. Wal-Mart Stores, Inc., 02-1354 (La.App. 3 Cir. 6/4/03), 847 So.2d 757, writ denied, 03-1884 (La.11/21/03), 860 So.2d 544.

In his written reasons for judgment, the workers’ compensation judge found Smith sustained his burden of proving a work-related accident by a preponderance of the evidence. He concluded the evidence presented at trial substantiated his version of the accident, rather than casting doubt on it. A review of the record reveals that this finding is not manifestly erroneous.

Dr. Donald Smith testified he believed Smith sustained a herniated disc as he walked up the stairs. He based this conclusion on Smith’s testimony relating he suffered severe pain as he walked up the stairs contrasted to the lesser pain he experienced following the turning incident going through the door.

Martco argues Smith never gave a history of suffering increased pain as he walked up the stairs. However, the WCJ noted that Smith informed Colleen VanMol |Bof the severe pain he felt during the stairs incident on their way to Louisiana Occupational Health Services. Moreover, the report from, Louisiana Occupational Health Services indicated Smith informed its employees of increased pain he experienced while walking up the stairs. The report read, in pertinent part, as follows:

He was walking, and he stepped wrong, and he felt a sharp pain in his [lower] back, it started bothering him more after he walked up and down the stairs.

Michael Fontenot, Smith’s supervisor, testified when he first saw Smith on the morning of the alleged accident, it was obvious he was in severe pain. VanMol also stated she found Smith was in obvious pain when she first saw him that morning.

Although there was some evidence that Smith had suffered some back pain in the past, there was no evidence he sustained any type of herniated disc. Any previous back pain was more likely attributable to degenerative changes and arthritis. Smith informed VanMol he was taking Arthrotec, an arthritis medication.

After a thorough review of the record, we cannot say the workers’ compensation judge erred in finding Smith established by a preponderance of the evidence he suffered a work-related injury.

II. Employee Fraud under La.R.S. 23:1208.

We find no basis for Martco’s contention Smith made willful misrepresentations for the purpose of obtaining benefits in violation of La.R.S. 23:1208. Martco alleges in the questionnaire filled out at Louisiana Occupational Health Services, Smith indicated he had no previous back problems. As stated above, although there was some evidence Smith had suffered from back pain in the past, the record indicates it was attributable to degenerative changes and/or arthritis. The employer was unable to present any evidence that Smith was ever diagnosed with any | fiback injury or suffered from a herniated disc.

The employer also argued May 1992 medical records from the Highland Hospital show Smith received prior treatment for lower back pain. Although the records indicate Smith listed pain in his lower back as a complaint, the chief complaint listed is abdominal pain. Those records also indicate a gastroscope was performed and antacids were prescribed.

Forfeiture of benefits under La. R.S. 23:1208 is a harsh remedy which must be strictly construed. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227. Whether or not an employee has forfeited his right to benefits under La.R.S. 23:1208 is a question of fact, which will not be reversed on appeal in the absence of manifest error. Id. We find no error on the WCJ’s part in finding Smith did not violate La.R.S. 23:1208.

III. Costs of the Anal Fissure Surgery.

Martco argues the anal fissure surgery was not related to Smith’s work-related injury. They note Smith had significant problems relating to hemorrhoids for years and at one point desired surgery to correct the problems. However, the WCJ relied upon the testimony of Dr. Stratton (who performed the surgery) that it was “quite clear that even though Mr. Smith had a previous history of hemorrhoids, that everyone had hemorrhoids and that this was in no way associated with the anal fissures that he had which occurred after his surgery and his use of narcotic pain medications that caused constipation.” A review of the record confirms Dr. Strat-ton concluded Smith’s anal fissure surgery was necessitated by the medications taken due to the back surgery. The WCJ found there was no contrary medical opinion given with respect to the cause of the anal fissures. Accordingly, we find no error in the WCJ’s conclusion that the anal fissure surgery was related to Smith’s back surgery 17and thus compensable.

TV. Credits and Reimbursement.

Martco contends it is entitled to a credit under La.R.S. 23:1212 for benefits which were expended under their Employee Benefit Trust. The WCJ refused to award a credit because there was no evidence put forth as to what percentage was funded. The second circuit in Taylor v. Columbian Chemicals, 32,411 (La.App. 2 Cir. 10/27/99), 744 So.2d 704, discussed whether the employer must prove both the entitlement to and the amount of any requested credit. The Taylor court stated as follows:

The early cases discussing offset, Matthews v. City of Alexandria, [619 So.2d 57 (La.1993)] and Cousins v. City of New Orleans, 608 So.2d 978 (La.1992), actually involved a different statute, R.S. 23:1225 C(1), which provides for a reduction of weekly benefits when the employee also receives Social Security old age benefits “to the extent not funded by the employee” or benefits under disability benefits plans “in the proportion funded by an employer.” The Supreme Court interpreted R.S. 23:1225 as placing the burden on the employer or insurer to prove how much of the employee’s premiums it paid, in order to obtain the reduction. Subsequent appellate decisions have imposed the same duty under 23:1212. Gentile v. Baton Rouge General, [95-348 (La.App. 1 Cir. 11/9/95), 665 So.2d 422]; Parfait v. Gulf Island Fabrication, Inc., 97-2104 (La.App. 1 Cir. 1/6/99), 733 So.2d 11; see also Lee v. Bancroft Bag Inc., [30,820 (La.App. 2 Cir. 8/19/98), 717 So.2d 1230]. Colum-bian’s argument that the employee must bear this burden lacks support and is simply wrong.

Taylor, 744 So.2d at 710.

Thus, we find no error on the WCJ’s part in denying the credit.

Martco also cites Spence v. Industrial N.D.T., 31,744 (La.App. 2 Cir. 3/31/99), 731 So.2d 473, for.the proposition that Smith should not be able to recover any medical expenses (in this case expended for physical therapy) which were paid by his wife’s insurer. We do not agree. In Spence, the claimant’s mother’s insurer paid benefits and therefore claimant could not recover those benefits. However, La. R.S. 23:1212 |sspecifically allows for recovery of expenses “[i]f the employee or the employee’s spouse actually pays premiums for health insurance ...” The WCJ did not err in allowing Smith recovery for the amounts of his medical bills paid by his wife’s insurer.

Martco also argues the WCJ erred in ruling it could not apply the fee schedule of La.R.S. 23:1034.2 “because the employer denied the claim from the very beginning.” Since Martco denied the claim from the onset, Smith was forced to fund the costs of medical treatment himself, either through insurance or from the Veteran’s Administration Hospital. La. R.S. 23:1142(E) provides in the “event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provisions of any diagnostic testing or treatment for that injury.” We agree with the WCJ that the employer is not entitled to rely on the fee schedule benefits after making a total denial of the claim and forcing the claimant to seek medical treatment unilaterally. See Barron v. First Lake Properties, Inc., 93-902 (La.App. 5 Cir. 3/29/94), 636 So.2d 970, 973 (noting if a “claim is found to be valid by the insurer or the court, the employer will be liable for those expenses under La.R.S. 23:1202 as well as La.R.S. 23:1142(D). If it’s not compensable, the employer will not be held liable for them.”).

V. Costs of Back Surgery at the VA Hospital.

Smith was forced to undergo back surgery at the yA Hospital because Mart-co’s denied his claim for back surgery. The WCJ awarded Smith the costs of the back surgery. Martco notes no evidence of any amounts owed to the VA Hospital for the surgery were introduced in the record. Counsel for Smith acknowledged he was unable to obtain the charges from the VA Hospital despite numerous requests, and|9Smith has not been requested by the VA Hospital to reimburse them the charges associated with the back surgery.

Martco argues to give Smith the award for the cost of the back surgery would be “against the civilian law notion of payment for a thing not owned and/or unjust enrichment,” and would be a “windfall to claimant not contemplated by the worker’s compensation statutes.” Smith fears the VA Hospital may assert a claim against him, and Martco should be obligated to pay any expenses which Smith incurred as a result of his treatment at the VA Hospital.

Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of money received by the plaintiff from sources independent of the tortfeaser’s procuration or contribution. Louisiana Department of Transportation and Development v. Kansas City Southern Railway Co., Inc., 02-2349 (La.5/20/03), 846 So.2d 734. Under this doctrine, payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer. Id. As stated by the Supreme Court in that case:

We recognize that the collateral source rule is most commonly applied to insurance proceeds. Under this general rule, a tortfeaser’s liability to an injured plaintiff should be the same, regardless of whether or not that plaintiff had the foresight to obtain insurance. However, our courts have applied the doctrine to a range of situations where the collateral source is provided to the plaintiff by a government agency or even a gratuitous source.
For example, a tortfeaser’s liability may not be reduced by the amount of a victim’s expenses paid by Medicare.

Id. at p. 9, 846 So.2d at 740 (citations omitted).

However, the situation at bar concerns not what was paid by a governmental agency, but an amount that was never charged to the plaintiff. A split in the circuits exists as |into how to handle contractual write-offs made in conjunction with payments from an insurer to a participating provider who has contractually agreed to the write-offs and to accept the payments in full satisfaction of the debt for medical services rendered.

In Brannon v. Shelter Mutual Insurance Company, 520 So.2d 984 (La.App. 3 Cir.1987), this court held the collateral source rule was applicable and allowed a tort victim to recover write-offs based on its finding that the plaintiff retained a natural obligation to pay the hospital the full amount of the bill for services provided. Recently, this court in Conrad v. City of New Iberia, 03-0121 (La.App. 3 Cir. 6/4/03), 847 So.2d 784, was asked to address Brannon based on recent developments in the law:

The City of New Iberia argues that this court should not follow the precedent set in its previous finding in [Brannon], because the law has evolved since that date and the second and fourth circuits have declined to follow it. See Suhor v. Lagasse, 00-1628 (La.App. 4 Cir. 9/13/00), 770 So.2d 422; Terrell v. Nanda, M.D., 33,242 (La.App. 2 Cir. 5/10/00), 759 So.2d 1026. This court recently had an opportunity to address the evolution of the law in this area and emphatically stated, “In Brannon v. Shelter Mut. Ins. Co., 520 So.2d 984 (La.App. 3 Cir.1987), we held the collateral source rule applies to Medicare payments. We find the appellant’s argument clearly supported by the jurisprudence and order the award for medical expenses increased to $6,617.08.” Trueman v. City of Alexandria, 01-1130, p. 8 (La.App. 3 Cir. 5/15/02), 818 So.2d 1021, 1026, writ granted, 02-2166 (La.11/15/02), 829 So.2d 410.

Based on our ruling in Brannon we find no error on the WCJ’s part in awarding Smith the costs of his back surgery.

VI. Award of Mileage.

Under La.R.S. 23:1203(D), an “employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the services, medicines,.... ” However, a claimant must present evidence of such expenses. Mart-co contends the lnWCJ’s award of mileage was not supported by the evidence. Smith provided mileage requests which set forth the healthcare provider, the date of travel and the number of miles traveled. Smith testified at trial that these requests accurately reflected a breakdown of the mileage he traveled for treatment. We find no error on the WCJ’s part in accepting this as sufficient proof of Smith’s travel expenses.

VIL Award of Attorney Fees.

The Louisiana Supreme Court in Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181, examined whether a failure to authorize a medical procedure for an employee eligible to receive workers’ compensation is tantamount to a failure to furnish compensation benefits, thus warranting penalties and attorney fees under La.R.S. 23:1201. The court stated as follows:

One purpose of the workers’ compensation statute is to promptly provide compensation and medical benefits to an employee who suffers injury within the course and scope of employment. The employer is obligated to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” LSA-R.S. 23:1203(A). Thus, we conclude that a failure to authorize treatment can result in the imposition of penalties and attorney fees except when the claim is reasonably controverted. Depending on the circumstances, a failure to authorize treatment is effectively a failure to furnish treatment.

Authement, 840 So.2d at 1186-1187.

Thus, the question before us is whether the claim was reasonably controverted.

Terry Garrett, who administered the claim for Martco, made the decision that Smith’s claim was not compensable. Smith was informed in a letter that no work injury was identified and his medical history revealed a diagnosis of degenerative low back disease as early as 1998. Garrett also stated that walking through a doorway is neither directly or indirectly related to or caused by Smith’s employment, though he |12felt walking up steps could be related to his employment. Garrett assumed for the purposes of his report that Smith stated he herniated his disc when walking through the door rather than walking up the stairs. It does not appear he considered Smith’s statement to Colleen VanMol, nor the history recorded by Louisiana Occupational Health Services where Smith stated he felt increased pain when he walked up the stairs. Garrett also admitted he did not take a statement from Smith, or contact his treating physician.

The WCJ found Martco’s actions in denying compensability “totally unreasonable to the level of being arbitrary.” We agree. It is apparent after reviewing the record that Martco did not thoroughly investigate Smith’s claim, and the WCJ did not err in awarding attorney fees.

Martco also argues the WCJ erred in rendering multiple awards of attorney fees. The WCJ rendered three $5,000 attorney fee awards for Martco’s failure to pay indemnity benefits, failure to provide medical coverage for Smith’s back surgery, and failure to provide medical coverage for the anal fissure surgery.

The Louisiana Supreme Court in Fontenot v. Reddell Vidrine Water Dist., 02-439, 02-442, 02-478 (La.1/14/03), 836 So.2d 14, found La.R.S. 23:1201(F) provides multiple penalties and attorney fees for multiple violations of compensation and medical benefits claims.

The Legislature subsequently added subsection J to La.R.S. 23:1201, effective July 3, 2003, which provides in pertinent part as follows:

J. Notwithstanding the fact that more than one violation in this section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section

|13Martco argues the addition of subsection J should be applied retroactively and only one attorney fee award is allowable. However, in Gay v. Georgia Pacific Corp., 32,-653 (La.App. 2 Cir. 12/22/99), 754 So.2d 1101, it was held the provisions of the statute in effect at the time of the withholding of benefits control the award of penalties and attorney fees. See also Skipper v. Acadian Oaks Hosp., 00-67 (La.App. 3 Cir. 5/3/00), 762 So.2d 122. Moreover, the enactment of Subsection J changes the law and thus has substantive effect. La.Civ.Code art. 6 provides that substantive laws apply prospectively only and cannot be given retroactive effect in the absence of contrary legislative expression. Since the denial of benefits and failure to pay medical expenses occurred prior to the enactment of subsection J, the WCJ did not err in making multiple awards of attorney fees.

VIII. Assessment of Court Costs.

Martco contends the WCJ erred in assessing all court costs against it in this matter. Under La.Code Civ.P. art. 1920, “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” An appellate court will not reverse a lower court’s decision to cast a party with court costs unless it is shown to be an abuse of discretion. Hollingsworth v. Bowers, 96-257 (La.App. 3 Cir. 12/30/96), 690 So.2d 825. We find no abuse of discretion in the WCJ’s assessment of court costs.'

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are assessed against appellant, Martco Limited Partnership.

AFFIRMED.

AMY, J., dissents and assigns reasons.

hAMY, J.,

dissenting.

La.R.S. 23:1031(A) permits for recovery of benefits when an employee “receives personal injury by accident arising out of and in the course of his employment....” (Emphasis added). “Accident” is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). In my opinion, the type of event experienced by the claimant does not fit within the above-definition of accident as there appears to have been no unexpected or unforeseen, precipitous event. Rather, the claimant was merely walking/climbing stairs while on the job.

I note, that this is not an instance where the claimant, suffering from a pre-existing condition, suffered injury from a subsequently occurring accident. See, e.g., Guidry v. Serigny, 378 So.2d 938 (La.1979)(wherein the Louisiana Supreme Court held that a fall constituted an accident, whether occurring due to a heart attack, fainting spell, or a slip. The resulting fall was found to be the accident, rather than the preexisting condition); Morris v. City of Opelousas, 572 So.2d 639 (La. App. 3 Cir.l990)(wherein a panel of this court concluded that a fall subsequent to an epileptic seizure, rather than the seizure itself, constituted an accident). In the present case, there is no subsequent occurrence alleged to have constituted an “accident.” | ?Rather, unlike those cases referenced above, there is only the onset of the plaintiffs medical condition.

As I find a reversal appropriate, I respectfully dissent.


source: Caselaw Access Project

author: L JAMES F. McKAY III, Judge.

license: Public Domain

text:
    Darryl M. RICHARD, Alvin Richard, Jr., Dwight Richard, Norwood M. Richard, Cathy Jean Richard Brice, Carol Ann West and Rosalind Theresa Richard on behalf of Bernice Richard v. TENET HEALTH SYSTEMS, INC. d/b/a Memorial Medical Center and/or Mercy Hospital of New Orleans, Inc., Dr. Russell Albright, Dr. Paul Ovide Villien, Jr., Dr. Leonard Glade and Dr. William Smith.
    No. 2003-CA-1933.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 2004.
    Rehearing Denied May 18, 2004.

      Richard L. Root, Betsy J. Barnes, Barnes & Root, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    Terry B. Defies, Mang, Batiza, Gaudin, Godofsky & Penzato, Metairie, LA, for Defendants/Appellees, Paul Villien, M.D., Leonard Glade, M.D. and William Smith, M.D.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS Sr.).
   L JAMES F. McKAY III, Judge.

In this medical malpractice action, the plaintiffs, Darryl M. Richard, Alvin Richard, Jr., Dwight Richard, Norwood M. Richard, Cathy Jean Richard Brice, Carol Ann West and Rosalind Theresa Richard on behalf of Bernice Richard, appeal the trial court’s maintaining of the defendants’, Paul Villien, Jr., M.D., Leonard Glade, M.D. and William Smith, M.D., exception of prescription and dismissal of the plaintiffs’ claims with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

On November 27, 1992, Bernice Richard underwent a CT scan with contrast at Mercy Hospital. During the course of the procedure, Ms. Richard experienced difficulty breathing. Thereupon, Peggy Gas-pard, the technician performing the procedure called the radiologist, Dr. Bernard Landry, who called a “code.” Dr. Paul Villien, an emergency room physician, responded and began resuscitation efforts; Dr. Villien eventually intubated the patient. Ms. Richard was stabilized and taken up to the ICU. Ms. Richard remained in a vegetative state until she died several months later; her death was attributed to hypoxia, or a lack of oxygen to the [¡¿brain. During Ms. Richard’s hospitalization, she was also treated by Dr. Leonard Glade, a pulmonologist, and Dr. William Smith, a cardiologist.

The plaintiffs initially filed a complaint with the Louisiana Patient’s Compensation Fund against Tenet Health Systems, Inc. d/b/a Memorial Medical Center and/or Mercy Hospital of New Orleans, Inc., Peggy Gaspard, Dr. Russell Albright, Landry-Albright Radiology Group, Dr. Curtis Bo-nin and several other defendants, alleging the CT scan was improperly administered and Ms. Richard died as a result. A medical review panel formed to consider the complaints against these defendants rendered its opinion on September 3, 1997, finding that all health care providers complied with the applicable standard of care.

On December 16, 1997, the plaintiffs filed suit against Dr. Albright, Dr. Bonin, the Landry-AIbright Radiology Group and Mercy Hospital. On January 15, 2003, the plaintiffs filed a request asking for a panel review of the medical care rendered by Dr. William Smith, Dr. Leonard Glade and Dr. Paul Villien. Drs. Glade, Villien and Smith filed an exception of prescription arguing because the claim was not filed within one year of the date of the alleged malpractice or at the very latest three years from the last date of treatment the plaintiffs’ claims were prescribed on their face under La. R.S. 9:5628 and that even if the claims against the originally named defendants interrupted or suspended prescription as to alleged solidary obligors, the plaintiffs had only ninety days from the date of notice of the opinion of the medical review panel decision in September of 1997 to name any additional defendants under La. R.S. 40:1299.41(G). The trial court maintained |3the defendants’ exception of prescription and dismissed the plaintiffs’ claims with prejudice. It is from this judgment that the plaintiffs now appeal. DISCUSSION

The issue before this Court is whether the trial court erred in maintaining the defendants’ exception of prescription.

La. R.S. 9:5628(A), which deals with prescription in actions for medical malpractice, provides:

No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

The plaintiffs filed their original claim against certain health care providers in 1993. The plaintiffs brought no action against Drs. Glade, Smith and Villien until January 15, 2003. Clearly, the claim against Drs. Glade, Smith and Villien was filed beyond the one year and three year dates set forth in La. R.S. 9:5628. As such the claims against these defendants are prescribed on their face and the burden of proof shifts to the plaintiffs to show interruption or suspension. See Tullier v. St. Francis Cabrini Hosp., 96-738 (La.App. 3 Cir. 2/5/97), 689 So.2d 529. The plaintiffs argue that the original claim filed in 1993 interrupted prescription as to Drs. Glade, Smith and Villien because they are solidar-ily liable with the original defendants. However, this assertion is in conflict with La. R.S. 40:1299.41(G).

La. R.S. 40:1299.41(G) provides:

Notwithstanding the provisions of Subsection D, the running of prescription against a health care provider who is answerable in solido with a qualified health care provider against whom a claim has been filed for review under this Part shall be suspended in accordance with the provisions of R.S. 40:1299.47(A)(2)(a).
La. R.S. 40:1299.47(A)(2)(a) provides:
The filing of the Request for a Review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until 90 days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until 60 days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part. The filing of a Request for Review of a Claim shall suspend the running of prescription against all joint and solidary obli-gors and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the Request for Review. Filing a request for review of a malpractice claim as required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription.

In the instant case, the plaintiffs had only until 90 days after notice of the rendition of the opinion of the original medical review panel to file a complaint against any solidary obligors. That panel met and rendered an opinion on September 3, 1997. Accordingly, prescription against any alleged joint tortfeasor |sor solidary obligor was suspended only for 90 days following notification, by certified mail, to the claimant or his attorney of the issuance of the opinion by the medical review panel. Counsel for plaintiffs was notified of the opinion of the medical review panel against the original defendants on September 8, 1997. However, the plaintiffs waited over five years after the opinion of that medical review panel to name Drs. Glade, Smith and Villien. Therefore, we find no error in the trial court’s maintaining of the defendants’ exception of prescription and dismissal of the plaintiffs’ claims with prejudice.

DECREE

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

AFFIRMED.

      . In their brief, the plaintiffs rely on Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La. 1986) and White v. West Carroll Hospital, 613 So.2d 150 (La. 1992) to argue that interruption of prescription in medical malpractice cases is governed by the general civil code articles. However, both of these cases were decided before LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, a decision which changed the way courts analyze prescription issues in medical malpractice cases. The issue in LeBreton was whether the rules governing prescription in the Medical Malpractice Act rather than the general rules of prescription should apply. LeBreton and the cases following it recognize that the legislature has established special rules for prescription under the Medical Malpractice Act. Consequently, the general rules of prescription do not apply.


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana, Pontchartrain Levee District v. ST. CHARLES AIRLINE LANDS, INC.
    Nos. 03-CA-1292, 03-CA-1293, 04-CA-20.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.
    Rehearing Denied May 21, 2004.

      R. Ryland Percy, III, Katherine T. Percy, Gonzales, LA, for PlaintiffAppellant.
    Randall A. Smith, Andrew L. Kramer, L. Tiffany Davis, New Orleans, LA, for Defendant/Appellee.
    James J. Coleman, Sr., New Orleans, LA, for Defendani/Appellee.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

This consolidated appeal arises from the expropriation by the State of Louisiana, Pontchartrain Levee District (“Levee District”) of certain properties owned by St. Charles Airline Lands, Inc. (“SCAL”), for the purpose of building a hurricane protec-. tion levee. In 1965, Congress authorized a project for levee construction along the banks of Lake Pontchartrain in order to provide hurricane protection to the parishes of St. Charles, Jefferson, Orleans, and St. Bernard. The property at issue in this case is located in St. Charles Parish adjacent to and along the north side of U.S. Highway 61, commonly referred to as Airline Highway. It begins near the intersection of Airline Highway and the Interstate 310 interchange and extends nearly two miles to Ormond Boulevard. The subject property is designated as wetlands.

The Levee District instituted expropriation proceedings by filing petitions for expropriation, pursuant to LSA-R.S. 38:351, et seq., on May 31, 1991, and |3January 24, 1994, and orders of expropriation were signed for the property sought in each petition. The Levee District deposited its estimate of just compensation for the taking of each property into the registry of the court, which was $24,104 for the 1991 taking and $47,595 for the 1994 taking. The Levee District based its calculation of just compensation on its belief that the property consisted of undevelopable wetlands. SCAL contested the amount of just compensation deposited by the Levee District in each suit, arguing that the value of the property was much higher than estimated by the Levee District and that SCAL was also entitled to severance damages. SCAL argued that the property was not undevelopable and that the highest and best use of the property at the time of the takings was for commercial and residential development.

A four-day trial began on January 13, 2003 and concluded on January 17, 2003. At trial, in order to establish that the property’s highest and best use at the time of the expropriations was residential and commercial development, SCAL had the burden of proving that it could have obtained permits to develop the property from the Louisiana Department of Natural Resources (“DNR”) and the U.S. Army Corps of Engineers (“Corps”) at the time of the takings.

On March 11, 2003, the trial court rendered a judgment in favor of SCAL, finding that there was a reasonable probability that the requisite wetland permits could have been obtained at the time of the takings to develop the property to its highest and best use, which was commercial and residential development. The trial court awarded additional compensation in the amount of $1,326,338.60 for the 1991 taking, and $1,742,081.90 for the 1994 taking. This award includes additional just compensation for the property actually expropriated, compensation for temporary construction servitudes, and severance damages for the remaining property that was adversely affected by the takings.

|4A hearing on SCAL’s Motion to Determine Attorney’s Fees, Expert Fees, and Costs was held on August 6, 2003. On September 25, 2003, the trial court rendered a judgment in favor of SCAL, awarding attorney fees in the amount of 10% of the additional compensation awarded at trial and interest, expert fees in the amount of $151,435.79, and costs in the amount of $15,186.87.

The Levee District filed appeals from both the judgment on the trial on the merits and the judgment awarding attorney fees, expert fees, and costs, and these appeals were consolidated by this Court. On January 20, 2004, SCAL filed an answer seeking an increase in the amount of attorney fees awarded.

TRIAL TESTIMONY

At trial, both the Levee District and SCAL introduced evidence and testimony regarding wetlands permitting and valuation of the property.

SCAL presented the testimony of Bennett Oubre, who was accepted as an expert in real estate appraisal. He stated that the subject property, which is north of Airline Highway, is 307 acres owned by SCAL. He believes that the 1-310 interchange opened in June of 1991 and was going to bring a significant impact to St. Charles Parish as far as development potential. The property at issue in this case is the first property that is present just after exiting 1-310, and he believes it was well-suited for commercial and residential development in 1991. As an appraiser, he considered many factors in valuing the property, including permittability. He opined that it was probable that SCAL would have received permits for the property in the reasonably foreseeable future.

Mr. Oubre valued the subject property at $12,000 per acre prior to the 1991 taking, and he opined that the compensation for use of SCAL’s property for the temporary servitude during construction should be determined by using 9% of the value of each acre used. He stated that there is no reasonable, feasible, financial way to develop the remaining property at this point because of the alignment of the |filevee through the property. Therefore, he opined that severance damages should be awarded, and he estimated these damages at $1,393,285.

With regard to the 1994 taking, Mr. Oubre believed the property should be valued at $14,000 per acre, and 9% of this value per acre should be used to determine the value of the temporary servitude required to construct the levee. He further opined that the remainder of the property had no economic value after the taking, so severance damages of $1,581,257 should be awarded.

On cross-examination, Mr. Oubre agreed that $700 is within the range of value for undevelopable wetlands, but he believed the property could have been permitted and developed. He stated that most of St. Charles Parish and the Greater New Orleans region were wetlands at one time.

SCAL called George Castille, III to the stand. Dr. Castille is employed by Coastal Environments, Inc., and he was accepted by the court as an expert in the fields of historical geography and navigability of waterways. He researched the history of permits and the probability of obtaining a permit in this case, based on historical trends and projections for the subject property. He stated that the vast majority of the property that has been developed along Airline Highway was wetlands at one time. Further, the majority of lands developed in the New Orleans area were originally wetlands and there has been a constant effort to utilize wetlands for human needs.

In addition to photographing sites and researching permits, Dr. Castille looked at the data supplied by DNR and the Corps regarding the percentage of permits that are granted. He stated that both a DNR permit and a Corps permit would have been required to develop this property. He indicated that less than 1% of DNR permit applications in St. Charles Parish and less than 1% of Corps permits in the New Orleans District were denied from 1985 to 1990. He believes | ¿that there is a reasonable probability that the property would have received a permit in 1991 or 1994.

SCAL presented the testimony of' Claude Edwin Fike, IV, who is employed by Coastal Environments, Inc. From 1986 to 1991, he worked for the Lafourche Parish Council as the Coastal Zone Management Administrator and Planning Director where he made recommendations regarding coastal use and wetlands permits. Since he has been employed with Coastal Environments, he has worked with wetland permitting, as well as environmental site assessments and environmental impact statements. He was accepted by the court as an expert in the field of wetlands permitting and its application procedures.

Mr. Fike reviewed the subject property, its location, and the major characteristics of the land. He also reviewed permit applications for property in the area of the subject property before, during, and after the time of the takings. It is his opinion that there is a very reasonable probability that permits would have been issued by DNR and the Corps in 1991 and 1994 for the subject property. He has never had any of his 70-80 permit applications denied by the Corps or DNR. Further, because this is the first property off the 1-310 interchange, the probability that the property would have received the necessary permits was increased.

SCAL also presented the testimony of Wade Ragas, who was accepted as an expert in market analysis, real estate appraisal, financial feasibility, and the 404 permit application process for needs assessments. He testified that St. Charles Parish grew rapidly from 1980 to 1990, and there should have been more commercial development based on the population growth. He stated that the SCAL property would have been suitable for a “big box” development, such as Wal-Mart, because of its deep property lengths, and there was a public need for such a development, due to the lack of such retail stores in that area. He also stated that the development would have generated a significant and positive economic |7impact for St. Charles Parish because of the sales taxes and available jobs it would have created. He further testified that residential development would have been attractive, because the property offered water-dependent, single-family housing.

Dr. Ragas did an alternative site assessment for residential development and found no non-wetland sites on the east-bank, with water access and trees, that was greater than 15 acres and available for sale in 1991 or after. He looked for commercial alternative sites on the eastbank, with significant frontage on Airline Highway, consisting of 20 or more acres, and available for sale in 1991, but he did not find any such comparable property.

Dr. Ragas concluded that the highest and best uses of the property before the taking were residential development, with water-dependent, single-family housing, and commercial development, just after exiting the 1-310 interchange. He further believed that there was a reasonable probability that the site could have been permitted for such uses.

His valuation of the land in 1991 was $8,850 per acre, and it was $9,850 per acre in 1994. Temporary servitudes were calculated on market interest rates in the 7-10% range. He calculated the total just compensation for the 1991 taking to be $1,382,000, and it was $2,012,000 for the 1994 taking.

William Monteleone, III, is the current president of SCAL and has been on the Board of Directors for 10 years. He stated that SCAL was formed in 1932 for the purpose of acquiring, purchasing, and developing real estate. He first became involved with the corporation in 1993, and there were plans to develop the property at that time. The property had not been developed in the 1970’s or 1980’s, because they were continually confronted with the uncertainty of the bridge and 1-310 alignment, as well as the alignment of the flood protection levee, which made them unable to determine the best plan for development.

|RThe Levee District presented the testimony of Peter Talluto, who was accepted as an expert in real estate appraisal. He testified that the subject property was zoned as wetlands. He stated that he believed the property was worth about $700.00 per acre and estimated the just compensation for the 1991 taking to be $21,256. He did not believe that severance damages should be awarded because he believed that the highest and best use before and after the taking was as undeve-lopable wetlands with very limited and restricted use. He opined that just compensation for the 1994 taking was $45,574.

On cross-examination, Mr. Talluto admitted that he has not appraised any jurisdictional wetlands in St. Charles Parish, other than this property, and he has not been involved with any permit applications for development of wetlands himself. He opined that the highest and best use for the property was for hunting, fishing, recreation, and possible mitigation.

The Levee District also presented the testimony of Scott Nesbit, who is the Director of the Ecological Group for CK Associates, which is an environmental consulting firm. His division does wetlands works, covering all types of environmental permitting. He was accepted as an expert in wetlands permitting, delineation, and mitigation.

Mr. Nesbit stated that the subject property lies within the Louisiana Coastal Zone and requires a Coastal Use Permit to develop the property. He testified that the first step to obtain a permit requires demonstrating a public need for the proposed activity. The second step is alternative site analysis, and the third step is sequencing. He testified that there would have to be a considerable demonstration of public need in order to permit 150 acres or more of wetlands, because the benefit of residential or commercial development in this area is small. With regard to alternative site analysis, he stated that the applicant must show that there is not another site for the proposed activity with less impact on wetlands. Sequencing is |9a process where the applicant must demonstrate that he has tried to minimize the impact to the maximum amount of wetlands, and then he can mitigate for the impact.

In Mr. Nesbit’s opinion, the property would not have been permitted in 1991 or 1994, because there was plenty of undeveloped land for sale in the 40 to 60 to 80 acre range with less impact on wetlands. He considered areas north and south of Airline, on the westbank and eastbank, wet and non-wet. Based on his site analysis, he opined that 300 acres of wetlands would not have been permitted for commercial or residential development.

On cross-examination, Mr. Nesbit admitted that during his alternative site analysis, he looked at property that was 100 acres or less, he did not know the exact acreage of the subject property, and he did not know which sites were available prior to 1998. He did not find any sites greater than 100 acres on Airline Highway that were non-wetlands within a 5-mile radius. He has been involved with over 100 permits applications and none of them have been denied.

The Levee District called Earl Matherne to testify. He is employed by the St. Charles Department of Planning and Zoning as their Coastal Zone Manager. His department deals with zoning and subdivision approval permits, and it issues building permits. He stated that there is a good chance that a zoning change will be granted when a wetlands permit has been obtained. He stated that approximately 75% of St. Charles Parish is technically wetlands. He further stated the placement of the 1-310 in the early 1990’s was a great, positive development for the area and St. Charles Parish.

LAW AND DISCUSSION

The Levee District is granted statutory authority to expropriate property for levee purposes under LSA-R.S. 38:351, et seq. However, the owner of property taken for the purpose of constructing a levee must be compensated “to the full | inextent of his loss.” Louisiana Constitution, Article 1, Section 4; LSA-R.S. 38:387(C). “Just Compensation” is based on the fair market value of the property taken, which is its highest and best use as of the date of the taking, and includes severance damages when the taking has adversely affected the value of the remainder of the property. LSA-R.S. 38:387; West Jefferson Levee District v. Mayronne, 595 So.2d 672, 679 (La.App. 5 Cir. 1/31/92), writ denied, 605 So.2d 1094 (La.9/4/92). Under the “highest and best use” doctrine, the landowner is entitled to compensation based on the potential use of the property, even though the property is not being so utilized at the time of the taking, if the landowner can show that it is reasonably probable that the property could be used for that purpose in the not too distant future, absent the expropriation and the project for which the property was expropriated, and provided such use would have an effect on the price the buyer is willing to pay. West Jefferson Levee District v. Coast Quality Construction Corp., 93-1718 (La.5/23/94), 640 So.2d 1258, 1273, cert. denied, 513 U.S. 1083, 115 S.Ct. 736, 130 L.Ed.2d 639 (1995).

The parties in this case dispute what the “highest and best use” of the property was at the time of the takings. The Levee District asserts that the property was un-developable wetlands, whereas SCAL argues that the property could have been used for residential and commercial development.

When a permit is necessary for the development of land in order for the land to be put to its highest and best use, the landowner bears the burden of proving that there is a reasonable probability of obtaining the permits necessary for development in the reasonably foreseeable future. Id. at 1275. In the present case, wetlands permits from the DNR and the Corps would have been required to develop the property to its highest and best use. A zoning change would also have been required.

InOther factors used to determine the highest and best use of property are: 1) market demand; 2) proximity to areas already developed in a manner compatible with the intended use; 3) economic development in area; 4) specific plans of businesses and individuals including action already taken to develop land for that use; 5) scarcity of land available for that use; 6) negotiations with buyers interested in the property taken for a particular use; 7) absence of offers to buy the property made by buyers who would put it to the use urged; and 8) use of the property at the time of the taking. West Jefferson Levee District v. Coast Quality Construction Corp., supra at 1274.

The primary issue in this case is whether SCAL met its burden of proving by a preponderance of the evidence that the DNR and the Corps would have issued the necessary permits to allow these properties to be developed and to establish that the highest and best use of the property was residential and commercial development.

In its reasons for judgment on this issue, the trial court found that “it was reasonably probable that in the reasonably near future extending beyond these two expropriations, that the defendant, Land Company would have obtained the necessary permits from the Louisiana Department of Natural Resources and the U.S. Army Corps of Engineers for residential and/or commercial development of their approximate 307 acres of land running parallel to the North side of U.S. Highway 61 between the Interstate-310 interchange and Ormond Boulevard.” The trial court also found that the highest and best use of the properties was as a residential and commercial development.

On appeal, the Levee District asserts eight assignments of error. In its first assignment of error, the Levee District argues that the trial court erred when it found that permits could have been obtained for the development of the property within the reasonably foreseeable future from the time of the expropriation. SCAL 1 ^responds that the trial court’s determination was correct, because the expert testimony that it presented at trial established that there was a reasonable probability that the requisite permits would have been obtained.

The experts from both sides agree that, in order to obtain the requisite permits, the main elements that the applicant must show are: 1) a public need for the proposed activity; 2) lack of alternative sites; and 3) acceptable mitigation. However, the experts disagree as to whether SCAL would have been able to meet this criteria at the time of the expropriations.

SCAL presented the testimony of expert witnesses, namely Claude Edwin Fike, IV, Bennett Oubre, George Castille, III, and Wade Ragas, in support of its position that it was reasonably probable that permits would have been obtained. The Levee District presented the testimony of expert witnesses, such as Peter Talluto and Scott Nesbit, in support of its position that permits would not have been obtained.

In his reasons for judgment, the trial judge stated:

I am more persuaded by the testimonies of the defendant Land Company’s expert witnesses. I credit their testimonies on the dispositive issues in this case....
Regarding the permitting issue. This court is persuaded by the testimony of the defendant’s expert, George Castille, that the statistical permitting data supports the conclusion that the DNR and the Corps have granted 90 percent of the wetlands permit applications in St. Charles Parish. Additionally, in the entire New Orleans District, the Corps has denied less than one percent of the permit applications. Additionally, I’m convinced from the testimonies of defendant’s experts, Claude Fike, Ben Oubre, and Doctor Wade Ragas, that the defendant Land Company could have demonstrated first, a public need for their proposed mixed residential/commercial development, second a lack of alternative sights [sic], and third, an acceptable mitigation plan, all of which persuades to this court that a reasonable probability existed near the time of the expropriations that DNR and the Corps would have issued the required permits for a mixed residential/commercial development project.

|13Once an expert is permitted to testify in his field, the trier of fact has great discretion to accept or reject the expert’s opinion, which goes to the credibility of the witness. Schexnayder v. Exxon Pipeline Company, 01-1236 (La. App. 5 Cir. 3/13/02), 815 So.2d 156, 159. When findings are based on the credibility of witnesses, the manifest error standard demands great deference to the factfinder, as only the factfinder can observe the variations in demeanor and tone of voice that bear on credibility. Boren v. ABC Insurance Company, et al., 36,586 (La.App. 2 Cir. 12/11/02), 834 So.2d 1119, 1123. On appellate review, it is the reviewing court’s function to determine whether the trial court’s findings were manifestly erroneous or clearly wrong. Ramirez v. Girouard, 02-887 (La.App. 5 Cir. 12/30/02), 836 So.2d 549, 551; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). When there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Ramirez v. Girouard, supra; Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

Our review of the entire record reveals that there was more than sufficient evidence for the trial court to conclude that there was a reasonable probability that the property would have obtained permits. With regard to the issue of public need, we note that the property is situated in a prime location on Airline Highway just after the 1-310 interchange, with two miles of frontage on Airline Highway. Mr. Ou-bre testified that he did not believe the DOTD would have taken land next to the subject property to put a busy interchange, i.e. 1-310, if future development of that area of Airline Highway was not intended. Further, Dr. Ragas testified about the increased demand for residential and commercial property in this area. He noted that there was a public need for large-scale retail development in this area, and the Airline frontage would have been attractive to a “big box” retailer, such as Wal-Mart. He also opined that part of the property could be successfully marketed as | uresidential waterfront property. Dr. Ragas further discussed the population growth in the area, and concluded that SCAL would have been able to establish public need for a residential/commercial development at the time of the takings. Although the Levee District’s experts, specifically Mr. Nesbit, testified that public need could not have been shown for a residential/commercial development, it was the trial judge’s duty to determine which testimony was more credible, and he chose to believe the defendant’s experts on this issue.

With regard to alternative site analysis, both Dr. Ragas and Mr. Oubre indicated that the property is unique in its location and size. Neither of these experts could identify an alternative location that was as large, for sale, and non-wet property with the same potential for development as the subject property. Although the Levee District’s expert, Scott Nesbit, testified that there were alternative sites at the time of the takings, the property that he found was not as large or located in such a prime location as the subject property. With regard to mitigation, Mr. Fike testified that mitigation would not have been a problem in 1991 or 1994. He stated that mitigation was inexpensive at that time and that there was property that would have been available for mitigation.

Each side presented expert testimony in support of its position and the trial judge had to make credibility determinations when assessing the testimony of these experts. The trial court found that there was a reasonable probability that SCAL could have obtained the requisite permits to develop the property at the time of the takings. Considering the testimony and evidence in this matter, we cannot say that this finding is clearly wrong or manifestly erroneous. Accordingly, this assignment of error is without merit.

In its second assignment of error, the Levee District asserts that the trial court committed manifest error by relying on the testimony of Dr. George Castille when determining the likelihood of permitting. It contends that Dr. Castille’s l1Rtestimony regarding general statistics is not indicative of the likelihood of permitting on a particular site. It further argues that his testimony regarding a handful of permits granted on properties incomparable in location, size, and nature to the subject property is not probative.

At trial, Dr. Castille was accepted as an expert in historical geography and navigability of waterways. It is undisputed that Dr. Castille did not claim to be an expert in permitting. Rather, he testified about the probability of obtaining a permit based only on historical trends and projections for the subject property. In its reasons for judgment, the trial court stated:

This court is persuaded by the testimony of the defendant’s expert, George Castille, that the statistical permitting data supports the conclusion that the DNR and the Corps have granted 90% of the wetlands permit applications in St. Charles Parish.

This statement by the trial judge does not indicate that he relied solely on Dr. Castille’s statistical information when determining that there was a reasonable probability that the property would have received permits. Rather, it simply indicates that he believed Dr. Castille’s findings that 90% of DNR and Corps permit applications were granted during the pertinent time period. In fact, the trial judge went on to explain that the testimony of Mr. Fike, Mr. Oubre, and Dr. Ragas convinced him that SCAL could have established the requisite elements in order to receive permits.

Several witnesses testified that it became more difficult to obtain a permit in the 1990’s than in the 1980’s. The statistical information presented by Dr. Castille established that a high percent of permit applications were granted in the early 1990’s, even though it was apparently more difficult to obtain them. Although it is true that permits are considered on a case-by-case basis and that statistics are not conclusive as to whether a specific piece of property will be permitted, statistics regarding the percentage of permits that are granted gives some indication of the | ^difficulty in obtaining a permit, and this is certainly a factor that may be considered when determining whether the subject property would have received permits.

The Levee District argues that some of the permits discussed by Dr. Castille were on property of different size, location, and nature than the subject property. While there are indeed differences in the properties discussed, this was noted during cross-examination of Dr. Castille, and the trial judge was aware of these differences when he decided how much weight to give Dr. Castille’s testimony. Further, the Levee District did not establish that the permitting statistics were not the same for property similar to the subject property. Regardless of the differences in the properties, the overall percentage of properties that received permits in 1991 and 1994 was a factor that the trial court was allowed to consider.

The effect and weight to be given to expert testimony is within the broad discretion of the trial judge. Lanasa v. Harrison, 02-26 (La.App. 4 Cir. 8/7/02), 828 So.2d 602, 605, unit denied, 02-2512 (La.11/27/02), 831 So.2d 286. We find no error in the trial court’s consideration of Dr. Castille’s testimony when making his determination regarding the likelihood of permitting. Accordingly, this assignment of error is without merit.

In its third assignment of error, the Levee District contends that the trial court committed manifest error by heavily weighing the testimony of SCAL’s experts, Ben Oubre and Dr. Wade Ragas. The Levee District notes the following language in the trial judge’s reasons for judgment:

I’m convinced from the testimonies of defendant’s experts Claude Fike, Ben Oubre, and Dr. Wade Ragas, that the defendant Land Company could have demonstrated first, a public need for their proposed mixed residential/commercial development....

The Levee District argues that the trial court should not have relied on the testimony of Dr. Ragas and Mr. Oubre regarding the likelihood of permitting, because these witnesses were not accepted as experts in permitting. Mr. Oubre |17was accepted as an expert in real estate appraisal, and Dr. Ragas was accepted as an expert in market analysis, real estate appraisal, financial feasibility, and the 404 permit application process for needs assessments. Although these witnesses were not tendered or accepted as experts in permitting, their areas of expertise are certainly related and relevant to the issue of permitting. First, Dr. Ragas was qualified in the 404 permit application process for needs assessment. Public need for the proposed activity is a fundamental element required to obtain a permit. Further, both experts’ expertise in real estate appraisal, particularly in St. Charles Parish, qualified them to testify about alternative sites in the area, which is the second vital element required before a permit will be issued.

As stated above, the effect and weight to be given to expert testimony is within the broad discretion of the trial judge. Lanasa v. Harrison, supra. We find no error in the trial court’s consideration or reliance on the testimony of Dr. Ragas and Mr. Oubre when determining the likelihood of permitting in this case. Accordingly, this assignment of error is without merit.

In its fourth assignment of error, the Levee District argues that the trial court committed manifest error when it determined the highest and best use of the property was commercial and residential development, because SCAL did not meet its burden of proving the likelihood of permitting. The Levee District states that “[i]f this court finds that the trial court erred in finding that the Land Company met its burden of proving that the property would be permitted, then this court must also find that the trial court erred in its finding regarding the highest and best use of the property.”

Considering our determination that the trial court did not err in finding a reasonable probability that the land would be permitted, we also conclude that the trial court did not err in finding that the highest and best use to which SCAL could | ishave utilized the property was for residential and commercial development. Accordingly, this assignment of error is without merit.

In its fifth assignment of error, the Levee District argues that the trial court committed manifest error in the calculation of the valuation of the construction servitude and in the award of severance damages. The Levee District asserts, “[i]n the event that this Honorable Court should find that the Land Company did not meet their burden of proving that the highest and best use for the subject property is mixed commercial/residential, then this Court should also find that the Court erred in awarding severance damages and its calculation of the award for the construction servitude.” Considering our previous determinations that the trial court did not err in determining that there was a reasonable probability that SCAL would have obtained permits for the property and that the highest and best use of the property was residential/commercial development, there is nothing for us to review in this assignment of error.

In its sixth assignment of error, the Levee District argues that the trial court committed legal error when it awarded attorney’s fees as a percentage of the aggregate of the excess compensation awarded and judicial interest accrued. It asserts that the statute providing for an award of attorney fees in expropriation cases does not specifically provide that the award be calculated on the aggregate of the excess award and the judicial interest accrued thereon.

After a hearing on SCAL’s Motion for Determination of Attorney Fees, Expert Fees, and Costs, the trial court issued a judgment awarding attorney fees to SCAL in an amount equal to ten percent of all additional just compensation and interest awarded to SCAL after trial on the merits.

LSA-R.S. 38:387(E) provides:

Reasonable attorney’s fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such ^attorney's fees in no event shall exceed twenty-five percent of the difference between the award and the amount deposited into the registry of the court.

The Levee District argues that there is no language in the statute that reveals an intent by the legislature to allow an aggregation of the excess award and the interest accrued as a basis for the calculation of attorney fees. However, LSA-R.S. 38:387(E) does not indicate that the award may not be based on excess compensation plus interest.

The award of attorney fees in this case was ten percent of the excess compensation awarded plus interest. Even including the interest on the excess compensation awarded, the total award of attorney fees does not exceed 25% of the excess compensation award. Therefore, there is no doubt that the award of attorney fees in this case does not exceed the statutory cap, regardless of whether interest should be included in such an award or not. Accordingly, this assignment of error is without merit.

In its seventh assignment of error, the Levee District argues that the trial court committed manifest error when it awarded excessive attorney fees to SCAL. In its cross-appeal, SCAL argues that the trial court erred in awarding attorney fees of only 10% of the excess compensation plus interest, because the evidence it presented showed that it should have received at least 18% of the amount of excess compensation plus interest.

An award of attorney fees in expropriation cases is largely within the trial court’s discretion, and a reviewing court will not disturb such an award absent an abuse of that discretion. State, DOTD v. Williamson, 91-2401, 91-2404 (La.4/20/92), 597 So.2d 439, 442. In State, DOTD v. Williamson, the Louisiana Supreme Court used the following factors when reviewing the award of attorney fees: 1) the ultimate result obtained; 2) the responsibility incurred; 3) the importance of the litigation; 4) the amount of money involved; 5) extent and lancharacter of the work performed; 6) legal knowledge, attainment, and skill of the attorneys; 7) number of appearances made; 8) intricacies of the facts involved; 9) diligence and skill of counsel; and 10) the court’s own knowledge.

At the hearing on the Motion for Determination of Attorney Fees, Expert Fees, and Costs, SCAL presented the testimony of David Stone, who was accepted as an expert regarding attorney fees in expropriation matters. Mr. Stone discussed the factors set forth in State, DOTD v. Williamson and applied these factors to this case. Both Mr. Stone’s testimony and the record before us reveal that SCAL was not awarded excessive attorney fees. This case involved complicated issues that were strongly contested by the Levee District. The SCAL attorneys prevailed in this ease and received a substantial amount of compensation in excess of the amount originally deposited in the registry of the court by the Levee District. The attorneys for SCAL made several court appearances, undertook a great deal of preparation for the trial, and the trial lasted four days.

The trial court has great discretion in setting attorney fees. State, DOTD v. Williamson, supra at 441. Considering the testimony and evidence in this matter, as well as the Williamson factors, we find that the award of attorney fees in this case was reasonable. Therefore, we find that it was neither excessive nor insufficient. Accordingly, the Levee District’s seventh assignment of error and SCAL’s cross-appeal are both without merit.

In its eight and final assignment of error, the Levee District argues that the trial court committed manifest error when it awarded unreasonable expert fees. In its judgment on the Motion for Attorney. Fees, Expert Fees, and Costs, the trial court awarded SCAL reimbursement of its expert fees as follows: $43,924.39 total for both Bennett Oubre and Mike Dixon; $44,330.00 for Dr. Wade Ragas; and $63,181.40 total for both Dr. George Cas-tille and Claude Edwin Fike.

The Levee District argues that SCAL did not present any evidence in support of its request for expert fees, other than invoices and expert reports, and this documentation does not establish that the expert fees were reasonable. It further argues that a jury trial involving expropriation of property near the property in this case was held before the same trial court shortly before this trial, namely State of Louisiana, Pontchartrain Levee District v. Charles Ostarly, Jr., et al., and Dr. Ragas and Dr. Castille submitted reports in that case that were similar to their reports in this case. The Levee District asserts that the expert fees for these two experts were substantially higher in the present case, but they should have been less because much of the groundwork for this case was prepared in Ostarly. The Levee District specifically contests the expert fees awarded to Dr. Ragas and Dr. Castille, because Mr. Oubre, Mr. Dixon, and Mr. Fike were not experts in the Ostarly case. SCAL responds that the expert fees in the Ostarly case were awarded via a consent judgment, and therefore, the fees awarded in that case are irrelevant.

When a landowner retains expert witnesses to assist him in obtaining his just compensation in expropriation matters, the condemning authority is to be taxed with reasonable expert witness fees. Natchitoches Parish Port Commission v. Deblieux & Kelley, Inc., 99-313, 99-314, 99-315 (La.App. 3 Cir. 3/22/00), 760 So.2d 393, 410, writ denied, 00-1121 (La.6/2/00), 763 So.2d 601. The fixing of expert fees is within the trial court’s discretion, and such an award will not be disturbed absent an abuse of discretion. Id. In Natchitoches Parish Port Commission, the Court set forth the following factors for a trial court to consider when setting expert witness fees: 1) the amount of time consumed by the experts in compiling their reports; 2) the amount charged to the landowner; 3) the amount of time spent in preparing for trial; 4) the amount of time spent in court; 5) the expert’s expertise; 6) the difficulty of the expert’s work; 7) the amount of the 182award; and 8) the degree to which the expert witnesses’ opinion aided the courting its decision.

Regardless of the expert fees awarded in another case, we have reviewed the factors set forth in Natchitoches Port Commission and applied them to the instant case. The invoices and reports of the experts in this matter show that SCAL’s experts spent a great deal of time preparing them reports, preparing for trial, and testifying at trial in this case. The testimony in this matter consisted almost solely of expert testimony, and the issues involved in this matter were detailed and complex. Therefore, the expert opinions were undoubtedly very helpful to the trial judge in arriving at his decision.

Considering the testimony, the evidence, and the pertinent law, we find that the amount of expert fees awarded did not constitute an abuse of the trial court’s discretion.

DECREE

For the reasons set forth above, we affirm the trial court’s judgment on the trial on the merits, dated March 11, 2003, and the judgment on the Motion for Attorney Fees, Expert Fees, and Costs, dated September 25, 2003.

AFFIRMED.

      . The Levee District filed two additional petitions for expropriation, on January 13, 2000 and August 6, 2002, but these petitions are not at issue in this appeal.

      . Mike Dixon did not testify in court during the trial.


author: J¿CLARENCE E. McMANUS, Judge.

text:
    Tim FONDREN v. GREATER NEW ORLEANS EXPRESSWAY COMMISSION.
    No. 03-CA-1383.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.
    Rehearing Denied May 21, 2004.

      Stephen M. Irving, Baton Rouge, LA, for PlaintiffiAppellant.
    Thomas P. Anzelmo Sr., Donald J. Pal-misano, Jr., McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   J¿CLARENCE E. McMANUS, Judge.

Plaintiff, Tim Fondren, appeals the summary judgment dismissing his retaliatory discharge suit against defendant, Greater New Orleans Expressway Commission. Fondren argues that the district court erroneously concluded that the suit failed to meet the threshold requirement for a retaliatory discharge action under Louisiana’s Wdiistleblower’s Statute, La. R.S. 23:967. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Tim Fondren, plaintiff-appellant, filed a suit for retaliatory discharge against his former employer, Greater New Orleans Expressway Commission (the Causeway Commission), defendant-appellee. In his complaint Fondren alleged that, while employed as the Causeway Commission Chief of Police, he was plagued by requests from Causeway Commissioners to alter police reports and fix traffic tickets issued by Causeway Commission police officers. He further alleged that, while serving as Chief of Police, he learned that one of the Causeway Commissioners attempted to cover up incidents involving that commissioner driving across the Lake Ponehartrain Causeway intoxicated. The complaint stated Gthat Fondren kept his immediate superior, Mr. Hunter Wagner, fully informed of these matters and that the Louisiana Attorney General ultimately initiated an investigation of various matters at the Causeway Commission, including these. Fondren met with investigators from the Attorney General’s Office on three occasions, with the approximate date of the last meeting alleged as June 6, 2000. According to the complaint, members of the Causeway Commission learned that Fondren had met with the investigators and that Fondren intended to cooperate in the investigation. Fondren alleged in his suit that, on July 12, 2000, he was informed that the Causeway Commission had voted in executive session the previous evening to terminate his employment as the Chief of Police, unless he resigned immediately. Fondren claimed that he resigned as Chief of Police solely in response to that threat. He contended in his complaint that the demand for his resignation constituted a reprisal under the Louisiana Whistleblower Statute, La. R.S. 23:967, thereby entitling him to an award against the Causeway Commission for compensatory damages, back pay, benefits, reinstatement as Chief of Police, attorney fees and court costs.

The Causeway Commission answered the complaint and denied Fondren’s allegations of retaliatory discharge. Thereafter, the commission moved for partial summary judgment dismissing the suit. In its motion, the Causeway Commission claimed that Fondren failed to meet the requirements for an action under the Louisiana Whistleblower Statute because he did not advise the Commission, as his employer, of any violations of law being committed by Commission members, nor did he provide the Louisiana Attorney General’s investigators or any other investigatory body with information about any such violations of law. As support for its motion, the Causeway Commission offered the deposition of Mr. Hunter Wagner, the former General Manager of the Causeway Commission and Fondren’s supervisor, and the affidavit of an investigator from the Louisiana Attorney [4General’s Office who interviewed Fondren on three occasions in connection with the Attorney General’s investigation of the Causeway Coinmission. Subsequently, the commission also filed in support of its motion the affidavit of a consultant hired to review the policies, procedures and training of the Causeway Commission Police Department. According to that affidavit, the consultant interviewed Fondren on March 24, 2000 and May 3, 2000.

Fondren filed two affidavits in opposition to the motion for partial summary judgment. The first stated that he informed investigators from the Attorney General’s Office and Hunter Wagner of these alleged violations of law. Further, he stated that Mr. Wagner told him to inform the Commission’s attorney, William Hall, of the status of the Attorney General’s interviews with him. The second affidavit stated that plaintiff told Causeway Commissioner Ronnie Blanke, William Hall and the Attorney General’s investigators of the alleged violations of law.

The district court heard the motion on June 27, 2003. At the hearing, the Causeway Commission objected to the latter of Fondren’s affidavits as untimely because it did not receive the affidavit until days before the hearing. The trial court did not rule on that objection and took the matter under advisement. On July 9, 2003, the court issued Judgment and Reasons granting partial summary judgment in favor of the Causeway Commission. Thereafter, on September 4, 2003, the district court issued a Final Judgment dismissing Fon-dren’s suit, and this appeal followed.

DISCUSSION

Appellate review of the granting of a motion for summary judgment is de novo. Perdue v. Sudderth, 02-357 (La. App. 5 Cir. 10/29/02), 831 So.2d 1050, writ denied, 02-2821 (La.2/21/03), 837 So.2d 628. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and | .¡admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B). The summary judgment procedure is designed to secure the “just, speedy, and inexpensive determination of every action.” La. Code Civ. P. art. 966(A)(2); Gootee Const., Inc. v. Amwest Sur. Ins. Co., 03-0144 (La.10/10/03), 856 So.2d 1203, citing, Racine v. Moon's Towing, 01-2837 (La.5/14/02), 817 So.2d 21.

Fondren’s suit claims that the demand for his resignation as the Causeway Commission Chief of Police constituted a reprisal under the Louisiana Whistleblower Statute, La. R.S. 23:967, which provides in pertinent part:

A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.

The Louisiana Whistleblower Statute targets serious employer conduct that violates the law. Puig v. Greater New Orleans Expressway Commission, 00-924 (La.App. 5 Cir. 10/31/00), 772 So.2d 842, 845, writ denied, 00-3531 (La.3/9/01), 786 So.2d 731. A civil action is available as a remedy when an employer retaliates against an employee for making disclosures protected under the statute. La. R.S. 23:987(B). As a condition precedent to protection under the statute, the employee | fimust first advise the employer of the violation of law before making the disclosure. La. R.S. 23:987(A).

The district court granted summary judgment in this case after concluding that Fondren failed to advise his employer of any violation of law, as required by La. R.S. 23:987(A). Based on the deposition of Mr. Hunter Wagner, the court found that Fondren’s employer was the Causeway Commission, not Mr. Wagner. The court reasoned that any information Fondren provided to Wagner about violations of law did not meet the statutory requirement of advising the employer of the violations.

On appeal, Fondren contends that the district court improperly granted summary judgment because the court premised its conclusions on an inaccurate statement of his position in opposition to the motion for summary judgment. The district court’s July 9, 2003 reasons for judgment state Fondren’s position as arguing that his employer was Hunter Wagner rather than the Causeway Commission. Fondren challenges that statement of his position, and the record supports him. The complaint filed by Fondren alleged that the Causeway Commission was his employer. The memorandum filed by Fondren in opposition to the summary judgment motion identified the Causeway Commission as Fondren’s employer, and an affidavit executed by Fondren and attached to his opposition memorandum stated that Fondren was hired to serve as an employee of the Causeway Commission. At the June 27, 2003 hearing on the motion for partial summary judgment, Fondren’s counsel argued that the information about the violations of law Fondren claimed he provided to Hunter Wagner, as his supervisor, could be imputed to the Causeway Commission because Wagner was the Commission’s General Manager. Additionally, Fon-dren’s second affidavit states that he told a member of the Commission about these alleged violations. |7Thus, according to Fondren, the employer notice requirement of La. R.S. 23:967(A) was satisfied in this case.

Our review of the pleadings evidences that the foundation for the summary judgment in this case is that Fondren’s suit alleges that Hunter Wagner was his employer rather than the Causeway Commission, when in fact the allegations of the suit are the exact opposite. That foundation is not supported by the record, and thus the summary judgment must be set aside. We note, however, that the district court granted summary judgment based on its conclusion that Fondren failed to meet the preliminary requirement of employer notice under La. R.S. 23:967. We find that the Commission failed to meet its burden of proof that as a matter of fact Fondren’s employer was not notified.

Further, based on its determination herein, the district court did not address the claim asserted by the Causeway Commission on its motion for partial summary judgment that Fondren failed to disclose any violations of law to the Louisiana Attorney General’s Office in connection with its investigation. As that claim was not resolved in the district court, it is not before us on this appeal.

DECREE

The summary judgment in favor of the defendant, Greater New Orleans Expressway Commission, and dismissing the complaint of plaintiff, Tim Fondren, is reversed; and the case is remanded to the district court for further proceedings. Ap-pellee shall bear all costs of this appeal.

REVERSED AND REMANDED.