author: IíTOBIAS, JR., Judge.

text:
    Zachary CALVIN, Sr. and Kim Jackson Individually and on Behalf of their Minor Child, Zachary Calvin, Jr. v. JANBAR ENTERPRISES, INC., Brian Conners, State Farm Mutual Automobile Insurance Company and Xyz Insurance Company.
    No. 2003-CA-0382.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.
    Rehearing Denied Oct. 31, 2003.
    Clifford E. Cardone, Catherine Hilton, Cardone Law Firm, APLC, New Orleans, LA, for PLaintiffs/Appellants, Zachary Calvin, Sr. and Kim Jackson, Individually and on Behalf of their Minor Child, Zachary Calvin, Jr.
    Gus A. Fritchie, III, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Third Party Defendants/Appellees, Gil-lis, Ellis & Baker, Inc. and Elizabeth Kes-sel.
    Thomas G. Buck, Blue Williams, L.L.C., Metairie, LA, for Defendant/Appellee, First Financial Insurance Company.
    Robert T. Garrity, Jr., Harahan, LA, and Andre’ P. Guichard, New Orleans, LA, for Defendant/Appellant Janbar Enterprises, Inc.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   IíTOBIAS, JR., Judge.

The plaintiffs, Zachary Calvin, Sr. and Kim Jackson, individually and on behalf of their minor child, Zachary Calvin, Jr. (“Zachary, Jr.”), appeal from a summary judgment granted in favor of the defendant, First Financial Insurance Company (“First Financial”). In addition, defendant/third-party plaintiff, Janbar Enterprises, Inc. (“Janbar”), appeals from the summary judgment granted in favor of the defendants, Gillis, Ellis & Baker and Mary L. Kessler. For the reasons below, we affirm the judgments of the trial court.

On 24 September 2000, Zachary Calvin, Jr., then 14 years of age, was struck by a 1992 Toyota truck owned by defendant, Janbar, and driven by defendant, Brian Connors (“Connors”), while crossing a street after exiting an RTA bus. At the time of the accident, Connors was an employee of Janbar and was driving the vehicle with the knowledge and permission of his employer. Toxicology results from a police drug test indicated that Connors was driving while under the influence of illegal substances; he was subsequently charged with first degree vehicular negligent injuring, a violation of La. R.S. 14:39.2. Zachary, Jr. suffered severe brain damage, and will require medical and attendant care for the rest of his life.

I pThe plaintiffs sued Janbar, as well as its automobile insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), and its comprehensive general liability (“CGL”) insurer, First Financial. In turn, Janbar filed a third-party demand against Gillis, Ellis & Baker and Mary L. Kessler (respectively, “GEB” and “Kes-sler”), its general liability insurance agents, contending that they failed to procure sufficient automobile liability insurance on its behalf and on behalf of its employees.

First Financial filed a motion for summary judgment, arguing that the CGL policy issued by it to Janbar specifically excluded coverage for auto accidents or injuries arising out of the use or entrustment of a motor vehicle. The plaintiffs opposed the motion, contending that then-cause of action against Janbar was for negligent “hiring, retaining, and supervision,” and was covered by the policy. The trial court found in First Financial’s favor, thereby granting the motion for summary judgment.

GEB and Kessler also filed a motion for summary judgment, arguing that all claims asserted by Janbar against them were preempted by virtue of La. R.S. 9:5606. Because any alleged negligence on then-part occurred in 1991 and more than three years had passed before the third-party demand was filed, no action could be established against them. The trial court agreed with GEB and Kessler and the motion for summary judgment was granted.

We review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Canal 66 Partnership v. Reynoir, 2002-0355 (La.App. 4 Cir. 1/15/03), 838 So.2d 52. A summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless no reasonable interpretation of the policy, when applied to the undisputed facts shown by the evidence supporting the motion, affords coverage. Westerfield v. LaFleur, 493 So.2d 600 (La.1986).

The record indicates that the principals of Janbar had actual knowledge that Connors used and/or abused illegal substances before, after, and during his employment with Janbar. However, the issue presented is whether a claim for the negligent hiring, retention, and supervision of Connors falls within the CGL policy issued by First Financial. The policy provision in question states in pertinent part:

2. Exclusions
This insurance does not apply to:
g. “Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “Loading or unloading.”

The policy also defines “auto” as a “land motor vehicle, trailer, or semi-trailer designed for travel on public roads, including any attached machinery or equipment.”

This court dealt with insurance policies and policy exclusions in Michelet v. Scheuring Security Services, Inc., 95-2196 (La.App. 4 Cir. 9/4/96), 680 So.2d 140 and stated, in pertinent part, as follows:

“An insurance policy is a contract between parties and should be construed according to contract principles.” Smith v. Matthews, 611 So.2d 1377 (La.1993). When the language of a policy is clear and not ambiguous, the insurance contract must be enforced as written. When the wording is clear, the courts lack the authority to alter or change the terms of the policy under the guise of interpretation. Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Company, 93-0911 (La.1/14/94), 630 So.2d 759. In interpreting insurance contracts the judicial responsibility is to determine the parties’ common intent. Such intent is to be determined according to the ordinary, plain and popular meaning of words used in a policy. La. C.C. arts. 2045 and 2047; Breland v. Schilling, 550 So.2d 609 (La.1989). The liability under a comprehensive liability policy is only as provided in the policy and the attached endorsements. The parties are free to select the types of risks to be covered. First Mercury Syndicate, Inc. v. New Orleans Private Patrol Service, Inc., 600 So.2d 898 (La.App. 4th Cir.1992), writ denied, 608 So.2d 169 (La.1992).
A policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict the provisions beyond what the parties contemplated. “Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume.” Louisiana Insurance Guaranty Association, 630 So.2d at 763. “Ambiguity must be resolved by construing the policy as a whole. Pareti v. Sentry Indemnity Company, 536 So.2d 417 (La.1988)....”

Id. at pp. 11-12, 680 So.2d at 147.

Louisiana courts have held that when automobiles covered under automobile liability policies are not being used for locomotion or transport purposes, but rather for purposes usually associated with the type of risks normally covered by a CGL policy, the CGL policy will provide coverage. See Americas Ins. Co. v. Reliance Ins. Co., 98-1008, p. 7 (La.App. 3 Cir. 2/3/99), 736 So.2d 256, 260, and cases cited therein.

The plaintiffs rely on Smith v. USAA Casualty Ins. Co., 532 So.2d 1171 (La.App. 4 Cir.1988), which, while seemingly supporting plaintiffs position, has been criticized by noted legal commentators. See 15 William Shelby McKenzie & H. Alston Johnson, III, Louisiana Civil Law Treatise § 72 (1996). In addition, a close reading of Smith reveals that its reasoning is contrary to that of the Supreme Court in Picou v. Ferrara, 412 So.2d 1297 (La.1982).

In Picou, the Court held that a claim against an employer for negligent hiring of an incompetent employee to drive a vehicle was excluded from coverage under the automobile exclusion of the employer’s comprehensive general liability policy because use of the vehicle was essential to that theory of liability. Id. at 1299. Similarly, in this case, the use of the motor vehicle is an essential element to the plaintiffs theory of liability, that Janbar negligently hired, supervised, and retained Connors despite knowledge of his frequent drug use. Without the motor vehicle, this accident, as tragic as it was, would not have occurred. Therefore, we find that the provisions of the First Financial policy exclude coverage and that the trial court correctly granted the motion for summary judgment. This assignment of error is without merit.

The second assignment of error concerns the summary judgment granted in favor of GEB and Kessel, Janbar’s general liability insurance agents. Janbar contends that they failed to procure sufficient automobile liability insurance on behalf of Janbar and its employees. GEB and Kessel maintain that they were not requested to secure auto liability coverage, but in any event, any alleged negligence by them occurred in 1991 and that the trial court correctly found that peremption applied.

|fiThe record indicates that GEB and Kessler served as the insurance agent of Janbar with regard to the acquisition of general liability insurance beginning in 1991 when Janbar, a previously inactive corporation, was reactivated as a janitorial supply service. In 1991, Janbar owned no vehicles and did not purchase any until 1993. Beginning in 1991, however, Janbar purchased a CGL policy through GEB and Kessler; when Janbar purchased its first vehicle in 1993, it elected to insure the vehicle with auto insurance from State Farm, through its agent, Kenneth Soulant, Sr., the father of Janbar’s principal corporate officers.

Scott Soulant, Janbar’s general manager, testified in his deposition that after acquiring the CGL policy through GEB and Kessler, he continued to renew the policy through them on an annual basis, without having any further conversations with them regarding Janbar’s type or amount of coverage. Further, the record indicates that Janbar did not provide any instructions to GEB and/or Kessler regarding any additional coverages after 1991.

The trial court granted summary judgment based on La. R.S. 9:5606A, which states as follows:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

17Janbar contends that Kenneth Soulant undertook to evaluate its insurance coverage in 1999 and procure additional coverage, if needed. These actions, however, have nothing to do with GEB and Kessel. Next, Janbar argues that Scott Soulant told GEB and Kessler about the level of coverage Janbar wanted, but that GEB and Kessler neither obtained sufficient coverage nor told him of any gaps in coverage. However, no evidence exists that this conversation took place within the three-year period preceding the filing of the third-party demand. The peremptive period with regard to GEB and Kessler is not affected by any undertakings or lack thereof by Kenneth Soulant and State Farm. Thus, this assignment of error is without merit.

For the reasons set forth above, the judgments of the trial court are affirmed. All costs are assessed equally against the plaintiffs and Janbar.

AFFIRMED; MOTION TO CORRECT RECORD GRANTED.

      . In addition to a brief, the plaintiffs filed a motion to correct the record to add to the official transcript a deposition that was omitted. None of the other parties have opposed the motion, and accordingly, the motion to correct the record is granted.


source: Caselaw Access Project

author: | .MICHAEL G. SULLIVAN, Judge.

license: Public Domain

text:
    Harward SOILEAU, et al. v. MED-EXPRESS AMBULANCE SERVICE, INC., et al.
    No. 03-351.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      Lawrence N. Curtis, Curtis & Lambert, Lafayette, LA, for Plaintiffs/Appellants: Harward Soileau, Sheila Soileau Corbin, Phyllis Soileau Dodson, Montie Soileau.
    Lamont P. Domingue, Voorhies & Labbe, Lafayette, LA, for Plaintiffs/Appellants: Harward Soileau, Sheila Soileau Corbin, Phyllis Soileau Dodson, Montie Soileau.
    Nicholas Gachassin, Jr., Renée M. Cred-eur, Gachassin Law Firm, Lafayette, LA, for Defendants/Appellees: Dr. Robert T. Casanova, Casanova Eye Care Center.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   | .MICHAEL G. SULLIVAN, Judge.

Harward Soileau and his children, Sheila Soileau Corbin, Phyllis Soileau Dodson, and Montie Soileau, appeal the judgment of the trial court which dismissed their medical malpractice claims against Dr. Robert T. Casanova, Casanova Eye Care, and Med-Express Ambulance Service, Inc. (Med-Express) for the wrongful death of Vivian Soileau, their wife and mother. For the following reasons, we affirm.

Facts

On February 8, 1998, Mrs. Soileau went to Dr. Casanova’s office to have a fluores-cein angiogram performed on her left eye. Tragically, she had an adverse reaction to the fluorescein dye used for the test. Attempts by Dr. Casanova and Med-Express to revive Mrs. Soileau were unsuccessful, and she died. Her husband and children filed this lawsuit, alleging that she died as a result of malpractice on the part of the defendants. They also alleged that Dr. Casanova did not properly inform her of the risks associated with the test and did not have her consent to perform the test.

Mrs. Soileau first saw Dr. Casanova on April 8, 1997. At that time, she complained of dry eyes and a black spot moving in one of her eyes, and that her glasses kept slipping on her nose. Prior to examining Mrs. Soileau, Dr. Casanova obtained a medical history from her, which included allergies and asthma. Mrs. Soileau’s vision at that time was 20/20 with glasses. After examining Mrs. Soileau, Dr. Casanova diagnosed her as having early cataracts and age-related macular degeneration. He also suspected that she was developing glaucoma. In July 1997, Mrs. Soileau returned to Dr. Casanova, complaining of seeing a black spot in her left eye for seven days. Examination on that date revealed that she had a peripheral retinal detachment in her left eye. Dr. Casanova referred her to Dr. J. Culotta for repair of the detached retina. She underwent three surgeries by |¡>Dr. Culotta. As a result, she was legally blind in her left eye because the lens in that eye had been removed during surgery.

On January 27, 1998, Mrs. Soileau returned to Dr. Casanova, complaining of blurry vision in her left eye. Attempts to improve the vision with glasses were unsuccessful. Dr. Casanova suspected that her poor vision was the result of swelling of the macula, the area of the eye that provides our real fine vision. During this visit, he performed three tests to see if the macula was swollen. However, the tests did not reveal any swelling of the macula or any other cause of Mrs. Soileau’s poor vision. Dr. Casanova explained to Mrs. Soileau that there may have been swelling or another abnormality not revealed by the tests he performed that day that a fluores-cein angiogram would show.

Mrs. Soileau had a follow-up appointment scheduled with Dr. Culotta a few months later, and she told Dr. Casanova that she would discuss the possibility of the additional test with him at that time. Yet, two days later she called Dr. Casanova with continued complaints. After that conversation, Dr. Casanova contacted Dr. Culotta regarding the fluorescein angio-gram, and he agreed that the test was appropriate for Mrs. Soileau. Dr. Casanova gave Mrs. Soileau the option of having him or Dr. Culotta perform the test. She indicated that she wanted him to do it, and she returned to his office February 3, 1998 for that purpose.

In preparation for the angiogram, Dr. Casanova’s nurse, Patricia Hardy, explained the procedure and obtained Mrs. Soileau’s consent to perform it. Nurse Hardy testified that she read the consent form “word for word” to Mrs. Soileau until she reached the portion of the form which refers to adverse reactions, at which time she verbally explained that the most common symptoms of such reactions are nausea, | .¡vomiting, and itching. She then explained to Mrs. Soileau that very rarely a patient may have a severe adverse reaction which can lead to death. Before Mrs. Soileau signed the consent form, Dr. Casanova came to the procedure room and asked her if she had any questions regarding the test. She did not ask any questions and signed the consent form.

Nurse Hardy then began the angiogram. She testified that, when she injected the dye into the intravenous line in Mrs. Soi-leau’s right hand, she did not see anything unusual happen. After she finished injecting the dye, she placed Mrs. Soileau’s chin on the angiogram machine and prepared to take photographs of her eye. Mrs. Soileau started slightly coughing. At that time, Nurse Hardy told her to sit back. As she sat back in the chair, Mrs. Soileau asked for her asthma inhaler, which Nurse Hardy handed to her. Nurse Hardy summoned Dr. Casanova, who immediately administered oxygen, but Mrs. Soileau’s breathing worsened. His staff called 911 and the hospital. Dr. Casanova then administered Benadryl and Epinephrine, but Mrs. Soileau did not respond. Instead,she continued to worsen and quit breathing. Dr. Casanova began administering CPR and continued his efforts until Med-Express personnel arrived and relieved him. Their efforts were unsuccessful, and Mrs. Soileau died.

Mrs. Soileau’s family had an autopsy performed. Dr. Emil Laga, the pathologist who performed the autopsy, testified that Mrs. Soileau died due to an acute deprivation of oxygen to her body and that there was an acute and diffused, asthma-like reaction in her lower airways. He described the reaction as an anaphylaxis and testified that Mrs. Soileau’s lower airways were almost 100% blocked by “slimy materials.”

14As previously noted, Mrs. Soileau had a history of allergies and asthma. Dr. Bernard Fruge, her treating physician for these conditions, testified that when he first saw her, she related a history of allergies and asthma for fifteen years. On her first visit with him in 1996, her lung function was restricted but not obstructed as a result of these conditions. She last saw him in October 1997 at which time her lung function had improved to normal, and she was asymptomatic. He testified that the autopsy findings on her were consistent with anaphylactic reaction. In his opinion, Mrs. Soileau experienced a fatal bronchial spasm, which caused mucus to plug her lower airways. This, together with inflammation, prevented her from ventilating. He further testified that Mrs. Soileau’s history of allergies and asthma was not a contraindication for the angio-gram, explaining that there was no predictor of a person’s response to fluorescein dye, if they, had never received it before. However, he agreed that her reaction was more severe than what .the general population’s response would be because her lower airways were more restrictive.

Prior to trial, the Soileaus filed a motion in limine to exclude the testimony of Nurse Hardy and Dr. Casanova regarding the verbal warnings that Nurse Hardy gave to Mrs. Soileau before the fluorescein dye was injected. As reflected above, the trial court denied the motion, and they were allowed to testify that it was Nurse Hardy’s standard practice to supplement the written consent form with a verbal warning, as she did in this case.

The matter was tried to a jury for four days. At the conclusion of the trial, the jury found no malpractice on the part of the defendants and did not award damages to the Soileaus. On appeal, the Soileaus assign as error the trial court’s admission of Dr. Casanova’s and Nurse Hardy’s testimony to modify the terms of the written | ^consent form. They also assign as error the jury’s finding that Mrs. Soileau’s consent to the angiogram was informed and the jury’s failure to award damages.

Nurse Hardy’s Verbal Warnings

The Soileaus contend that the trial court erred in denying their motion in limine which sought to prevent Dr. Casanova and Nurse Hardy from testifying regarding the verbal warnings that she gave to Mrs. Soileau. La.R.S. 40:1299.40 governs the consent which must be obtained from a patient before a medical procedure is rendered. Subsections (A)(1), (B), and (C) of La.R.S. 40:1299.40, are at issue herein. They provide:

A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be 'presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
B. Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such written consent.
C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (1) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.

I fi(Emphasis added.)

Relying on Subsection (B), the Soileaus contend that when there is written consent no evidence regarding oral warnings given by the health care provider to the patient is admissible. They correctly point out that the interpretation of a statute begins with the language of the statute itself. However, after a close reading of Subsections (A) and (B) and review of the jurisprudence interpreting these provisions, we find that their interpretation is incorrect.

Subsection (A) defines written consent as “handwritten consent” which sets forth the nature and purpose of the medical procedure and “the known risks, if any, of death, ... the loss or loss of function of any organ,” acknowledges disclosure of the information and that all questions have been answered, and is signed by the patient. Id. “Such consent,” i.e., written consent which satisfies this definition, creates a rebuttable presumption that a patient has consented “to encounter risks adequately described in the consent form,” Hondroulis v. Schuhmacher, 553 So.2d 398, 417 (La.1988), and limits the introduction of evidence to situations in which “execution of the consent was induced by misrepresentation of material facts.” La. R.S. 40:1299.40(A).

Subsection (B) prohibits the admission of evidence “to modify or limit” .the authorization for the procedure set forth in “such written consent.” The Soileaus argue that parol evidence should not have been allowed regarding the risks not specified on the written consent form. Therefore, we must determine whether “such written consent” in this section is a reference to all written consent, as the Soileaus argue, or just certain written consent. Subsection (B)’s introductory reference to Subsection (A) and its placement immediately following Subsection (A) leads to the 17conclusion that the phrase “such written consent” is a reference to written consent which satisfies the requirements of Subsection (A). Accordingly, only written consent which sets forth “the known risks” of the procedure to be performed on the patient are governed by Subsection (B).

This conforms with the supreme court’s conclusion in Hondroulis, 553 So.2d 398, that La.R.S. 40:1299.40 addresses the patient’s burden of proof in an informed consent claim. In Hondroulis, the supreme court recognized that La.R.S. 40:1299.40 is not clear and precise, then conducted a thorough review of the jurisprudence on informed consent and the statute to determine the effect of the statute. Analyzing the requirements of La.R.S. 40:1299.40, the court explained:

In our opinion, under the statute, (1) if it is proved that the patient signed a document 'purporting to warn him of a risk involved in the proposed surgery or treatment, (2) it is presumed that the patient understood and consented to encounter whatever risk a reasonable person, in what the doctor knew or should have known to be the patient’s position, would have apprehended from the written consent form, and (3) the patient cannot disprove the presumed fact except by showing that his consent was induced by misrepresentation.

Id. at 417 (emphasis added).

Acknowledging the uncertainty of the effect of the statute on the existing jurisprudence regarding informed consent, the court continued its analysis:

The statute may be interpreted reasonably as a modest amendment to the informed consent doctrine, rather than as a cryptic restatement of the whole body of law severely burdening or interfering with the rights of patients to make intelligent medical choices. Prior to this enactment our courts attached no particular legal significance to a medical consent merely because it happened to be in writing.... Consequently, a patient could introduce virtually any kind of relevant evidence to prove lack of consent or to rebut the doctor’s evidence that the patient had consented to the therapy. Therefore, the statute may be viewed reasonably as having, as its principal object a .change in the law providing that, notwithstanding any other law to the contrary, a written consent to encounter the risks disclosed therein may not be rebutted except by a showing that consent was induced by misrepresentation.
IsSince the statute does not expressly define or redefine the cause of action for failure to obtain informed consent, such an intention should not be read into its provisions. Its aim is simply to affect the burden borne by the plaintiff who would controvert the disclosure or consent set forth in the consent form....
For these reasons, we conclude that, notwithstanding prior judicial expressions, the legislature by enacting La. R.S. 40:1299.40, did not intend to make substantive alterations in the informed consent doctrine. More particularly, the legislature did not intend to change the law with respect to major elements of the cause of action such as the doctor’s duty to disclose material information (including reasonable alternative therapy) or the patient’s burden to prove the materiality of any risk not disclosed. That the statute does not contain an express restatement of these principles is due simply to their being integral parts of the jurisprudential doctrine that the legislature tacitly accepted in accomplishing its limited purpose of regulating proof of lack of informed consent....

Id. at 418 (emphasis added) (citations omitted).

In light of Hondroulis, we interpret La.R.S. 40:1299.40 to provide that, if a written consent identifies the risk at issue, there is a presumption that the patient was informed of and accepted that risk, and the patient cannot introduce evidence to rebut that presumption, unless he proves that his “consent was induced by misrepresentation of material facts.” However, if the written consent does not identify the risk at issue, there is no presumption that the patient was informed of and accepted the risk at issue, and the physician must prove that he informed the patient of the risk at issue and that the patient consented to the surgery or procedure at issue. See LeBlanc v. Krupkin (La.App. 1 Cir.1989), 555 So.2d 600, writ denied, 558 So.2d 603 (La.1990).

Consent that does not meet the requirements of Subsection (A) is valid if it includes “the matters set forth in Paragraph (1) of Subsection (A)” and the patient is allowed to ask questions which are answered. La.R.S. 40:1299.40(0). An oral explanation and oral consent are acceptable under this provision. Id. See also Distefano v. Bell, (La.App. 1 Cir.), 544 So.2d 567, writ denied, 550 So.2d 650 (La.1989). Consent obtained in accordance with either Subsection (A) or (C) is valid consent. Capel v. Langford, 98-1517 (La.App. 3 Cir. 4/28/99), 734 So.2d 835, writ denied, 99-2080, 99-2086 (La.10/29/99), 749 So.2d 637, 638.

While the precise issue presented here has not been previously addressed, there are cases in which written consent that was supplemented with the testimony of the physician was found to be informed consent. See Ardoin v. Mills, 00-1257 (La.App. 3 Cir. 3/8/01), 780 So.2d 1265, writ denied, 01-1003 (La.6/15/01), 793 So.2d 1242; Leger v. La. Med. Mut. Ins. Co., 98-1098 (La.App. 3 Cir. 3/31/99), 732 So.2d 654, writ denied, 99-1253 (La.6/18/99), 745 So.2d 30; Bourgeois v. McDonald, 622 So.2d 684 (La.App. 4 Cir.), writ denied, 629 So.2d 1177 (1993).

The written consent form signed by Mrs. Soileau does not satisfy the requirements of Subsection (A) because it does not identify death as a “known risk” of a fluorescein angiogram; therefore, Subsections (A) and (B) are inapplicable. Subsection (C) governs the issue presented herein, and the trial court’s admission of Dr. Casanova’s and Nurse Hardy’s testimony regarding the manner in which Nurse Hardy orally supplemented the written consent form was not error.

Informed Consent

In their second assignment of error, the Soileaus assert that the jury’s determination that Mrs. Soileau’s consent to the fluorescein angiogram was informed was erroneous. They contend that because of her history of asthma, which included one emergency room visit, she should have been informed that respiratory distress and/or an anaphylactic reaction were material risks of the fluorescein angi-ogram and that the procedure could have been performed in the hospital.

|inIn Hondroulis, the supreme court explained the concept of material risk in the context of informed consent:

The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. “Some” expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging that risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient’s position probably would attach significance to the specific risk.

Hondroulis at 412. To be successful on their claim, the Soileaus must prove that respiratory distress and/or anaphylactic reaction occurred, and that had these risks been disclosed to Mrs. Soileau, she would not have had the angiogram performed. Id. The disclosure requirement is an objective standard which was adopted “[b]e-cause of the likelihood of a patient’s bias in testifying in hindsight on this hypothetical matter.” Id.

Dr. Raymond Records, the Soileaus’ expert, was qualified as a medical expert, specializing in ophthalmology. He testified that fluorescein dye is old and very, very safe. He also testified that he considered asthma and allergies to be risk factors with fluorescein angiograms and that he generally did not do fluorescein angio-grams on patients with a history of asthma in his office.

Dr. Kurt Gitter, an ophthalmic and retinal surgeon, was Dr. Casanova’s expert. He testified that the possibility of an ana-phylactic reaction to fluorescein dye is very, very rare. Dr. Gitter testified that the only statistics on fluorescein angio-grams reflect that severe reactions to the dye occur in only 115 of every 220,000 performed, which is .05%. He also testified that the fluorescein angiogram is the gold standard for diagnosing CME. According to him, it is one of the safest and most used of all hi diagnostic tests in ophthalmology when other forms of “interventional testing” are considered. He further testified that, during the course of his practice of approximately forty years, he has performed fifty to 100 fluorescein angi-ograms per week and never had an episode like Mrs. Soileau’s or an anaphylactic response occur. He explained that those patients who did react to the fluorescein were easily and quickly treated with no further complications. He also testified that it is the standard of care for these tests to be performed in offices rather than in hospitals.

In Ardoin, 780 So.2d 1265, the plaintiff developed an infection after surgery which resulted in the loss of use of his arm. He claimed that he would not have had an arthrogram procedure performed if he knew that he could lose the use of his arm as a result of the procedure. The defendant doctor testified that he had informed the plaintiff that bleeding, infection, and allergic reaction are risks associated with the procedure. He argued that “the standard of care did not require that he then explain the potential complications of these risks, i.e., the potential that infection could lead to the loss of the use of his arm.” Id. at 1270. This court found no error with the jury’s conclusion that the defendant doctor did not breach the standard of care, stating: “We disagree that the jury was required to find that the potential of loss of function of the arm was a material risk of the operation. The jury repeatedly heard expert testimony indicating that the physician is expected to reveal material risks of the operation, but not every potential complication.” Id.

The situation here is similar. Mrs. Soi-leau was advised that severe allergic reaction, including death, was a risk' of the angiogram, but she was not advised that respiratory distress or anaphylactic reaction are also risks. Dr. Bernard testified that an anaphylactic reaction is a systemic allergic reaction. He testified that such a | ^reaction can affect the lungs and cause wheezing or bronchial spasms and that he believed that Mrs. Soileau experienced a fatal bronchial spasm.

A jury’s finding of fact may not be reversed absent manifest error or unless clearly wrong. Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). “[A] reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings. [It must] review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.” Id. at 882 (citation omitted). “[T]he issue to be resolved ... is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one.” Id.

Considering the testimony of Dr. Gitter, the jury may have concluded that, even though Mrs. Soileau had allergies and asthma, the risk of respiratory distress and/or anaphylactic reaction were not material risks that Dr. Casanova should have disclosed. Additionally, Dr. Fruge’s testimony may have led the jury to conclude that an anaphylactic reaction is an allergic reaction which may include respiratory distress and that these responses were encompassed in the warning she was given. Dr. Gitter’s and Dr. Fruge’s testimony may have also led the jury to conclude that, even if Dr. Casanova had advised Mrs. Soileau of these risks, she would not have decided against having the procedure performed by him in his office.

Our determination on this issue preter-mits the need to address the Soileau’s third assignment of error.

Disposition

The judgment of the trial court is affirmed. All costs of this proceeding are assessed to the Soileaus.

| ^AFFIRMED.


author: JjMICHAEL G. SULLIVAN, Judge.

text:
    Klint L. FRUGE v. HEBERT OILFIELD CONSTRUCTION, INC., et al.
    No. 2003-349.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      M. Terrance Hoychick, Young, Hoychick & Aguillard, John W. Johnson, Clanton & Johnson, Eunice, LA, Dave T. Johnson, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Klint Fruge.

      James Ryan III, James Ryan III & Associates, LLC, New Orleans, LA, for Defendants/Appellants, AXA Global Risks U.S. Insurance Company, Raul Chavez, and Hebert Oilfield Construction, Inc.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   JjMICHAEL G. SULLIVAN, Judge.

Klint Fruge filed suit for personal injuries allegedly sustained in an automobile accident, naming as Defendants the other driver and his employer, Raul Chavez and Hebert Oilfield Construction, Inc., and their insurer, AXA Global Risks U.S. Insurance Company. After a bench trial in which Mr. Chavez was found to be 100% at fault, Mr. Fruge was awarded $11,745.61 in stipulated medical expenses; $2,315.70 in past lost wages; $100,000.00 in general damages; and $90,000.00 in loss of earning capacity. On appeal, Defendants argue that Mr. Fruge did not prove a loss of earning capacity, or alternatively, that the amount awarded for those damages is excessive, given that he has been retrained and now earns more than he did prior to the accident. For the following reasons, we find no error and affirm.

Discussion of the Record

The accident occurred on August 27, 1999, when Mr. Fruge, then 21, broadsided a truck driven by Mr. Chavez, who failed to stop at a flashing red light. About three hours after the accident, Mr. Fruge went to a hospital emergency room with complaints of low back pain that radiated through the legs. He was referred to Dr. Louis Blanda, an orthopedic specialist, after the results of an MRI revealed degenerative disc disease and a small herniation at L5-S1.

Dr. Blanda treated Mr. Fruge conservatively through September of 2002, during which time he complained of stiffness and pain in the low back, numbness and pain in the right leg, particularly after sitting too long, and a slight weakness in the right foot. In addition to prescribing pain and anti-inflammatory medication, Dr. Blanda ordered a course of physical therapy, which Mr. Fruge said reduced his pain by 60-70% after five months of treatment. Dr. Blanda believed Mr. Fruge’s symptoms were consistent with a small L5-S1 herniation, for which he assigned a 1?10% anatomical impairment of the body as a whole. Because he did not diagnose a neurological deficit, Dr. Blanda did not recommend surgery. However, he cautioned that a traumatic disc injury begins an arthritic process whereby the disc degenerates earlier and more severely than it would under normal circumstances. Consequently, Dr. Blanda believed that Mr. Fruge was more likely to need surgery in the future than the average person who did not have a disc problem at such an early age. Dr. Blanda strongly recommended against Mr. Fruge performing heavy work, as the more stress put on the back would increase the chance of needing a fusion in the future. Dr. Blanda believed Mr. Fruge should lift no more than 20-25 pounds, with no repetitive bending or stooping. He had no objection to Mr. Fruge performing medium work, provided he was qualified for it and a functional capacity examination (FCE) showed him capable of it. At the time of his deposition, Dr. Blanda understood that Mr. Fruge was performing light-duty work with accommodations from his employer. Should Mr. Fruge continue on that path, Dr. Blanda believed there was less of a chance of severe problems in the future.

Another orthopedic specialist, Dr. Douglas Bernard, examined Mr. Fruge on May 3, 2001, at the request of Defendants. Dr. Bernard recorded a normal examination with no neurologic findings. He did not believe that the degeneration at L5-S1 was caused by the accident, but he acknowledged that less than 10% of the population would have a degenerative disc by age 21. He agreed with Dr. Blanda that Mr. Fruge was at a greater risk for future surgery because of the herniation and that Mr. Fruge would have a reduced chance of future back problems if he switched from medium or heavy labor to a supervisory position with minimal lifting.

13At the time of the accident, Mr. Fruge was a 21-year-old machinist employed by Stabil Drill Specialties, Inc. (Stabil Drill). He described that position as involving standing at all times, with frequent stooping and bending and some lifting of 40-50 pounds. He testified that, because he could not perform this work after the accident, his employer “made up” a job for him as a night supervisor in which he handled most of the paperwork from the day and night shifts. This accommodation, he explained, permitted him to sit most of the time, unlike the other night supervisors who were expected to stand all night overseeing the machinists under them. After working for one year as a night supervisor, Mr. Fruge was retrained by his employer as a computer numerical control (CNC) operator, a job he described as “more of a mental position than manual position” that did not require stooping or bending. However, because he cannot stand the entire shift without pain, he explained that his employer continues to make accommodations not available to other CNC operators, in that he is allowed to sit and take breaks as needed and someone is available to help him with the pushing and pulling requirements of the job. As a machinist, Mr. Fruge earned $28,614.00 in 1999, the year of the accident. In 2000, he earned $51,013.00 as a night supervisor, and in 2001, he earned $59,081.00 as a CNC operator.

Patrick McJimsey, production manager of manufacturing at Stabil Drill, explained that 95% of a CNC operator’s job is watching the machine, which requires being in a standing position to stop the machine if anything goes wrong. Because of Mr. Fruge’s employment record and ability, however, he is the only CNC operator who is allowed a chair by his work station. Mr. McJimsey also testified that Mr. Fruge is the only CNC operator who cannot perform the job of a manual machinist as well. Because of these accommodations, Mr. McJimsey explained, |4Mr. Fruge would be the “first to go” should the oilfield experience a decline during its many “ups and downs.”

Dr. John W. Grimes, a rehabilitation counselor, testified on behalf of Mr. Fruge as to his future employment prospects. Dr. Grimes’ testing indicated that Mr. Fruge was in the upper limits of the low average range, functioning at an eleventh grade level in word recognition, a ninth grade level in spelling, and an eighth grade level in math. Because of Mr. Fruge’s physical limitations, Dr. Grimes believed that he has suffered a “loss of access” to certain positions that is yet to translate into a loss of earnings, but that could significantly impact his income in the event of future medical problems or economic fluctuations. Dr. Grimes considered Mr. Fruge fortunate that his employer provided him with “accommodated employment” that, if maintained, would not result in a loss of earnings. However, Dr. Grimes was concerned that, should Mr. Fruge lose this “niche” in his field, he would either be thrown back into a manual labor position that he could not perform or he would be at a disadvantage in competing for supervisory jobs because of his youth. Dr. Grimes considered Mr. Fruge particularly disadvantaged in the first scenario, should he apply for a manual job either being at risk for further injury or requiring extensive assistance to perform the work.

Nancy Favaloro, a rehabilitation counselor testifying for the defense, believed that Mr. Fruge could not only perform his present job of a CNC operator without any accommodations, but that he could return to manual machinist work as well. She based this opinion on her own testing, which showed him to have an above average aptitude in general intelligence, and on an FCE that indicated he could tolerate medium to “medium heavy” work. She felt that Mr. Fruge’s earning capacity had | «increased since the accident because he acquired a new skill as a CNC operator that is transferable to industries other than the oilfield.

James Sellers, who conducted the FCE on October 10, 2002, testified that its results indicated that Mr. Fruge would meet the job descriptions of a CNC operator and a machinist. However, he acknowledged that frequent or continuous lifting could cause further damage of the disc and that Mr. Fruge should modify his activities based upon his actual complaints. At the time of the FCE, Mr. Fruge still exhibited restrictions in trunk and lumbar range of motion, with some hamstring tightness bilaterally. David Hite also provided physical therapy services to Mr. Fruge at the same clinic. He testified that Mr. Fruge had a positive response to therapy, although he showed a limited tolerance for sustained forward bending. He considered the FCE as a measure of what a person could do in two days at the clinic, from which certain extrapolations were made. However, he testified that he would advise anyone with a disc-related problem to avoid sustained, forward bending because of the stress it creates on the discs of the low back, regardless of whether that position was performed without complaints during testing.

Dr. Douglas Womack, an economist, agreed that Mr. Fruge would not suffer a loss of earnings if he were able to keep his current job, which he understood to be “sheltered employment.” His calculations addressed Mr. Fruge’s residual earning capacity should he lose his present position and be forced to compete in the labor market with restrictions as outlined by Dr. Grimes. Dr. Kenneth Boudreaux, who testified for the defense, did not believe Mr. Fruge sustained any loss of earning capacity, considering that he has acquired a new, transferable skill. Recognizing the volatility of the oilfield, Dr. Boudreaux acknowledged that a significant decline in rig 1 «activity could result in industry-wide layoffs of 25-30%. However, Dr. Boudreaux also pointed out that Mr. Fruge was able to maintain his present employment through a downturn in oilfield activities in mid-2001, as shown by a declining rig count for that time.

In finding that Mr. Fruge sustained a loss of earning capacity, the trial court explained:

Because he has an uncontroverted herniated lumbar disc, with a ten (10%) percent impairment, with a restriction of performing on medium work, and with only a high school education, he has definitely sustained a loss of earning capacity. Though, by the grace of Stabil Drilling company it has not yet manifested itself yet, plaintiff would be relegated to seeking employment with a high school education and a bad back.... Before the accident, plaintiff was able to do heavy duty work and the job of a machinist. And, considering his proven motivation and skill, plaintiff could have easily moved up the economic ladder. Now, he is stymied and at the mercy of Stabil Drilling and the oilfield .... But for his good fortune with Stabil, plaintiff, after this accident, would have been in a bind.

Loss of Earning Capacity

In arguing that the award for loss of earning capacity was in error, Defendants challenge some of the trial court’s factual conclusions. They contend that the record does not support the findings that Mr. Fruge has a residual disability and that his employer is making special accommodations for him. They also contend that the award was unwarranted given his increase in income and acquisition of new skills.

“A trial court’s award for loss of earning capacity is reviewed under the manifest error standard of review.” Bellard v. S. Cent. Bell Tel. Co., 96-1426, p. 17 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, 705, writ denied, 97-2415 (La.12/12/97), 704 So.2d 1202. To recover for loss of earning capacity, the plaintiff must produce medical evidence indicating with reasonable certainty that he has a residual disability 17causally related to the accident. Kennedy v. Columbus Am. Props., L.L.C. ex rel. Joseph Canizaro Interests, 99-940 (La.App. 4 Cir. 1/12/00), 751 So.2d 869.

Defendants point to the opinion of Ms. Favaloro and the results of the FCE in arguing that Mr. Fruge has no residual disability because they indicate that he can still perform the job of a machinist. However, the trial court’s conclusion to the contrary is supported by the testimony of Dr. Blanda, Mr. Hite, and Mr. Sellers. Dr. Blanda assigned Mr. Fruge a 10% permanent disability with instructions that he is not to place too much stress on the damaged disc to prevent further injury. Mr. Fruge’s best course of conduct, according to Dr. Blanda, was to continue in his current light-duty employment. Mr. Hite strongly advised against sustained forward bending for anyone with a disc problem, regardless of the FCE results, and Mr. Sellers advised Mr. Fruge to modify his activities based upon his actual complaints. When this testimony is considered with Mr. McJimsey’s description of a manual machinist’s work as a “rough” twelve hours involving “a lot of stooping, lifting back and forth” and being “slumped over most of the day,” we find no error in the trial court’s conclusion that Mr. Fruge can no longer perform that job. Defendants also question whether Stabil Drilling is presently providing special accommodations to Mr. Fruge, arguing that it would be illogical for the- employer to place its expensive machinery at risk. However, the trial court heard and accepted as credible Mr. McJimsey’s testimony that Mr. Fruge is treated differently from other CNC operators. We find no error in this regard.

In Batiste v. New Hampshire Ins. Co., 94-1467, p. 3 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ denied, 95-1413 (La.9/22/95), 660 So.2d 472 (citation Isomitted) (emphasis added), this court explained the relationship between income and earning capacity as follows:

Loss of earning capacity, is not the same as lost wages. Rather, earning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiffs earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. , The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiffs lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity.
In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages him in the work force. The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.

“[W]hat the plaintiff earned before and after the injury does not constitute the measure” of damages for loss of earning capacity. Hobgood v. Aucoin, 574 So.2d 344, 346 (La.1990) (citing Folse v. Fakouri, 371 So.2d 1120 (La.1979)). In Hobgood, a plaintiff with a 10% permanent whole-body disability due to a back injury was awarded $50,000.00 for loss of earning capacity, even though his income had risen since his accident. Notwithstanding the increase in his business income, the self-employed plaintiff was able to prove “that his ability to earn a living [was] impaired by his back injury.” Id. at 347.

In Sallis v. City of Bossier City, 28,483 (La.App. 2 Cir. 9/25/96), 680 So.2d 1333, writ denied, 96-2599 (La.12/13/96), 692 So.2d 1063, and writ denied, 96-2592 (La.12/13/96), 692 So.2d 376, the plaintiff, who sustained a severe knee injury, was able to return to his former job only because his employer “permanently accommodated his disability.” Id. at 1341. (A member of a telephone-line repair crew, the plaintiff could return to his unit, but only because he was allowed to work |9on the ground while the other crewmen did all the climbing.) His need for this accommodation, however, took away any opportunity for transfer or promotion, which in turn, greatly increased his chance of being laid off in his employer’s five-year work-reduction plan. Even though the 30-year-old plaintiff returned to his former job and was making more money, the second circuit recognized that he did sustain a loss of earning capacity based upon his residual disability, his loss of advancement opportunities, and the likelihood that his job was in jeopardy. Accordingly, the court affirmed an award of $200,000.00 for these injuries.

In the present case, the trial court found that Mr. Fruge sustained an obvious injury that prevented him from performing his former job and that permitted his current employment only through the “grace” of a benevolent employer. The trial court further found that Mr. Fruge was “at the mercy” of this employer, as well as the volatile oilfield industry. We agree with the trial court that Mr. Fruge has sustained a loss of earning capacity. Although he has yet to suffer a monetary loss, his injury places him at a great disadvantage in the labor market. He can no longer perform the work for which he was originally trained, and he can perform his new skill only with accommodations from his present employer. He has demonstrated that he will have great difficulty in competing for jobs, which in turn, would significantly impact his future income, should his precarious position be altered. We find that Mr.' Fruge is entitled to compensation for this disadvantaged economic position.

In measuring such a loss, we stated in Batiste, 657 So.2d at 170 (emphasis added):

The very nature of lost earning capacity makes it impossible to measure the loss with any kind of mathematical certainty. The facts of each case must take into account a variety of factors, including the plaintiffs condition prior to the accident, his work record prior to and |inafter the accident, his previous earnings, the likelihood of his ability to earn a certain amount but for the accident, the amount of work life remaining, inflation, and the plaintiffs employment opportunities before and after the accident.

Mr. Fruge was a 21-year-old manual laborer with only a high-school education at the time of the accident. Since the accident, he has acquired a new skill, but he is unable to comply with the postural requirements of that job without modification by his present employer. Although Defendants presented evidence that his new skill is transferable to other industries, they have not shown whether those opportunities are available in this geographic region. Dr. Womack estimated Mr. Fruge’s future work-life expectancy from the date of trial to be 33.84 years. The trial court’s award of $90,000.00 amounts to less than four years of his previous salary and is less than any calculation submitted by Dr. Womack. We find no abuse of discretion in the award.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendants-Appellants.

AFFIRMED.


author: | SULLIVAN, Judge.

text:
    Ramona Ann Marcantel WINZOR v. Robert Wade WINZOR.
    No. 2003-329.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      K Ray Rush, Attorney at Law, Oakdale, LA, for Plaintiff/App ellee, Ramona Ann Marcantel Winzor.
    W. Mitchell Redd, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Robert Wade Winzor.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A PICKETT, Judges.
   | SULLIVAN, Judge.

Robert Wade Winzor appeals the trial court’s denial of his request to become the domiciliary parent of his three children. For the following reasons, we affirm.

Facts

Robert Wade Winzor (Wade) and Ramona DeBarge were previously married to each other. While married they had three children, T.A.W., bom December 21, 1988; M.W.W., bom December 28, 1993; and A.K.W., born January 28, 1997. The couple separated June 15, 1997, when Wade left the marital domicile in Monroe, Louisiana. Ramona, having no family in Monroe, returned to her hometown of Kinder to be near her family for support. They were divorced in October 1998. On February 8,1999, pursuant to stipulations by the parties, a consent judgment, approving a joint custody plan, support payments, and medical expense reimbursement was signed. The custody plan provided for Wade and Ramona to share joint custody of the children with Ramona being the domiciliary parent and Wade having visitation privileges which were outlined in the plan.

In June 2002, the children went to Wade’s home in Reeves for summer visitation. During that time, T.A.W. requested of Ramona that she be allowed to live with her father. While initially refusing, Ramona agreed to the request in early July. With Ramona’s knowledge, Wade registered T.A.W. to attend school in Beauregard Parish. After school started, Wade asked Ramona to amend the custody plan to reflect that he was the domiciliary parent of T.A.W. Ramona refused and thereafter requested that Wade return T.A.W. to her home. At trial, Ramona testified that, prior to allowing T.A.W. to move to Wade’s, she told Wade and T.A.W. that her permission was for a trial basis only. This was not disputed. On August 27, 2002, she filed a report with the Allen Parish Sheriffs Department because Wade refused | ¡Jo return T.A.W. to her. T.A.W. was scheduled to visit Ramona the weekend of August 30, 2002. That evening, Wade’s mother and uncle brought T.A.W. to the parties’ usual exchange location, but T.A.W. refused to go with Ramona. Ramona sought the' assistance of the Allen Parish Sheriffs Department to obtain custody of T.A.W., but the Sheriffs Department would not remove T.A.W. from Wade’s custody without a court order, and Wade would not force T.A.W. to go with Ramona. On September 5, 2002, Ramona filed a rule for contempt, and Wade filed a rule to modify the custody plan: Ramona sought to enforce the 1999 custody plan; to have the court order Wade to pay his share of the children’s medical expenses; and to hold Wade in contempt, and Wade sought to amend the custody plan to designate him as domiciliary parent of the children. Wade obtained an order allowing T.A.W. to live with him until a hearing on the rules could be held. After the hearing, the trial court designated Ramona as domiciliary parent of the children and ordered that Wade reimburse her $2,556.62 in medical expenses. The trial court did not hold Wade in contempt.

When this matter was tried, T.A.W. was thirteen years old, M.W.W. was almost nine years old, and A.K.W. was five years old. T.A.W. is a bright, intelligent, normal young lady. She testified in chambers and-expressed her desire to live with Wade. M.W.W. has been diagnosed as globally developmental^ delayed and has slight mental retardation. He has some autistic characteristics and some anger-control problems. Teaching M.W.W. and caring for him requires much patience and persistence. A.K.W. has a serious heart defect which has required two open-heart surgeries and one closed-heart surgery. The first surgery was performed when she was four-weeks old. Her most recent surgery was during the summer of 2001. Her ¡¡¡activities, medications, meals, and physical status must be closely monitored. Ramona testified that M.W.W. and A.K.W., especially A.K.W., missed T.A.W. while she lived with Wade.

Wade appeals only the denial of his request for change in domiciliary designation. He assigns six errors by the trial court. Five of the assigned errors relate to factors enumerated in La.Civ.Code art. 134. Specifically, he asserts that the trial court failed to consider the facts of the case as they relate to factors (1), (4) and (9), (5), (10), and (12). His last assignment is that the trial court erred in finding that the best interest of the children is served by living together. In the alternative, Wade seeks custody of T.A.W. individually.

Law and Discussion

On appeal, a trial court’s ruling on a change of custody request may only be disturbed if the reviewing court determines that the trial court abused its discretion in making its ruling. In addition, a reviewing court may set aside the trial court’s finding of fact only upon determining that the trial court was manifestly erroneous or clearly wrong. The issue is whether the trial court’s conclusion was reasonable in light of the entire record.

Hillman v. Davis, 02-685, pp. 5-6 (La.App. 8 Cir. 12/11/02), 834 So.2d 594, 598 (citations omitted).

A party seeking to modify a custody decree which was a stipulated judgment must prove “(1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child.” Evans v. Lungrin, 97-541, 97-577, p. 13 (La.2/6/98), 708 So.2d 731, 738. If the original custody decree is a considered decree, i.e., one for which the trial court received evidence of parental fitness, the party seeking a modification must prove that continuation of the present situation is “so deleterious |4to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

Because the Winzors’ custody decree is a consent judgment, Wade does not have to meet the heavier burden of Berger-on. He must, however, prove both prongs of the Evans standard, i.e., that a material change in circumstances has occurred since the entry of the consent judgment and that his proposed modification is in the children’s best interest.

Material Change in Circumstances

The trial court performed only a best-interest analysis under La.Civ.Code art. 134; it did not make a specific finding of a material change in circumstances. Therefore, we must determine de novo whether a material change in circumstances that triggers a best-interest analysis under Article 134 has occurred. When Wade and Ramona separated, they lived in Monroe where Wade was working for the Union Pacific Railroad. After the separation, in an effort to move closer to the children, Wade arranged new work assignments and relocations with his employer. Eventually, he achieved his goal and was assigned to the Lake Charles area. He currently lives in DeQuincy, which is relatively close to Kinder, where the children live with Ramona, and is much more involved in the children’s lives than he was previously. He and Ramona have both remarried.

Wade has established that there has been a material change in circumstances of the parties and the children and will now address his assignments of error regarding the trial court’s consideration and analysis of the Article 134 factors.

| rjlest Interest of the Children

In its analysis, the trial court considered Wade’s involvement and presence in the children’s lives and his financial support of them; the stability of Ramona’s presence in the lives of the children and their living arrangements; M.W.W.’s mental limitations and educational needs; A.K.W.’s health problems; T.A.W.’s desire to live with Wade; the desires of M.W.W. and A.K.W. for T.A.W. to continue living with them; and the best interest of all three children. The trial court did not, however, correlate each factor that it discussed with an Article 134 factor, but it is not required to do so.

In Weaver v. Weaver, 01-1656, p. 5 (La.App. 3 Cir. 5/29/02), 824 So.2d 438, 442, this court observed that “[t]he factors under Article 134, are just that — a series of guidelines the trial court may use in determining which parent can better provide for the best interests of the child.” When determining the best interest of the children, the trial court must weigh and balance factors favoring or opposing custody on the basis of the evidence presented in each case. McKinley v. McKinley, 25,365 (La.App. 2 Cir. 1/19/94), 631 So.2d 45. The weight to be given each factor is left to the discretion of the trial court. Jones v. Rodrigue, 00-899, 00-900 (La.App. 1 Cir. 11/3/00), 771 So.2d 275.

The trial court’s consideration of these factors were in favor of Ramona, except on the issue of housing, which it determined was equal.

Assignment of Error Number 1

Wade’s first assignment of error is that the trial court failed to consider the facts presented as they relate to factor (3) of Article 134 which provides:

The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

LThe trial court determined that Ramona has provided most of the support to the children with Wade contributing only a small part of assistance to her. In its discussion, the trial court referenced “occasional visits” by Wade from 1998 until 2000. Wade takes issue with this statement contending that he saw the children monthly during that time and that Ramona’s relocation to Kinder from Monroe contributed to his infrequent visits. Ramona testified that Wade did not see the children very much during the last six months of 1997, that he saw them every three or four months during 1998, every two to three months during 1999, every three weeks or so in 2000, and that during 2000 he began seeing the children every other weekend. Wade testified that he visited the children about once a month until 2000. His current wife testified that he did not visit the children every other weekend until 2000. Wade’s testimony regarding how often he visited the children differs from Ramona’s testimony, and the trial court apparently accepted her testimony over his, which is its prerogative.

Wade’s argument insinuates that Ramona is partially to blame for his infrequent visitation with the children in 1997, 1998, and 1999 because she moved to Kinder. When Wade left the matrimonial domicile, Ramona had little or no choice but to return to Kinder. She had no job and no family to help her with the three small children, which included a three-year-old with developmental problems and a five-month-old with a severe heart problem. Regarding the separation and her return to Kinder, Ramona testified that on one occasion Wade left for work and did not return for a week without letting her know of his whereabouts. On two other occasions, he left for some time but then returned. Then, in June 1997, he told her that he was leaving again. At that time, she told him that if he left, she would move back to [7Kinder with the children. Under the circumstances, we do not find her actions improper. Furthermore, we recognize that the distance between Monroe and Kinder is not short; however, Wade’s parents live fairly close to Kinder, allowing him to pick up the children and stay at his parents’ home for visitation, rather than make two round-trips to exercise his visitation. Ramona is not to blame for Wade’s infrequent visits with the children prior to 2000.

Wade also takes issue -with the trial court’s discussion of his payment of child support. There is no indication in the record of whether or not he paid support to Ramona before their February 1999 stipulation, but it is clear that, based on unconfirmed comments by the children, Wade made a unilateral reduction in his child support payments from $1100.00 to $600.00 in early 2001 and that Ramona had to file suit to have the payments reinstated. This $500.00 reduction in support for three children is substantial, especially when it is for a three-month period. Although Wade is repaying the $1500.00, it is only at the rate of $100.00 per month. Ramona will not recoup the full amount withheld for fifteen months. This reduction reflects negatively on Wade’s disposition to assist Ramona in providing for the children.

We find no error with the trial court’s conclusion that Wade has not provided as much assistance to the children as Ramona has.

Assignment of Error Number 2

Wade’s next assignment is that the trial court failed to consider and apply the fourth and ninth factors of Article 134. These factors provide respectively:

(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

IsWade alleges that the trial court made factual errors concerning these factors and did not consider that Ramona allowed T.A.W. to move in with him and that T.A.W. remained with him until December 2002. His argument references the following passage in the trial court’s reasons:

At the request of his fourteen-year-old daughter, Mr. Winzor allowed [T.A.W.] to move into his home in July 2002. Thereafter, Mr. Winzor presented change of custody papers to Ms. De-Barge. Ms. DeBarge refused to sign change of custody papers and demanded that [T.A.W.] return to live in her home in accordance with the Consent Judgment, signed February 8, 1999. In lieu thereof, Mr. Winzor enrolled [T.A.W.] in school in East Beauregard School and filed suit asking to be the domiciliary parent of all three children.

The first statement is correct but incomplete because it fails to recognize that Ramona agreed that T.A.W. could move to Wade’s in July 2002. The last statement is incorrect because it indicates that Wade acted alone when he enrolled T.A.W. in school, when in fact, Ramona assisted him in gathering the documentation needed to enroll T.A.W. in East Beauregard School, then changed her mind about T.A.W.’s move to Wade’s. We note again, however, that Ramona testified and was uncontra-dicted, that she told Wade and T.A.W. that the move was on a trial basis.

Wade also alleges that the trial court ignored T.AW.’s preference to live with him. This allegation is incorrect. The trial court acknowledged T.A.W.’s preference to live with Wade. Just because the trial court ultimately determined that it was in the best interest of the children for T.A.W. to live with Ramona does not mean that her preference was ignored. A child’s preference to live with a parent is just one of many factors and circumstances that a trial court must consider and weigh when determining custody. Weaver, 824 So.2d 438. A trial court’s custody determination requires consideration of a number of factors, and the court is free to disregard a child’s preference to live with one parent. Id.

IflWhile the trial court did commit error with regard to the factual finding noted above, we will consider the error in light of all of the evidence at the conclusion of our discussion.

Assignment of Error Number 3

Wade argues, “The Trial Court clearly placed much weight on the supposition that Ramona Winzor has stability and the help of extended family.” He counters the trial court’s finding that Ramona has much support and assistance from her family with the admission by Ramona’s mother that she has made disparaging comments about him. Additionally, he asserts that Ramona’s mother tries to enlist Ramona’s assistance in alienating the children’s affection for him. He cites factor (5) of Article 134, which provides:

The permanence, as a family unit, of the existing or proposed custodial home or homes.

Mrs. Marcantel, Ramona’s mother, admitted that she has made statements like Wade is “dishonest and irresponsible” and “if it were not for your mother you would not have shoes on your feet” to the children. These comments are in contravention of our custody scheme and are distasteful, and we do not condone them. However, we also observe that these comments do not rise to the level of the actions of the "parents, not grandparents, in Masters v. Masters, 35,477 (La.App. 2 Cir. 10/2/01), 795 So.2d 1271, and McIntosh v. McIntosh, 33,908 (La.App. 2 Cir. 8/31/00), 768 So.2d 219, which are cited by Wade in support of this assignment.

Mrs. Marcantel has witnessed first hand Ramona’s struggle to provide the best that she can for the children under the circumstances. She has assisted Ramona and contributed much to the stability of the lives of Ramona and the children, providing her personal assistance and emotional support. While she may perceive Wade as | í (/‘irresponsible,” she should not make such statements to the children. There is no evidence that Ramona makes such comments or that she condones those made by her mother.

This negative aspect is unfortunate and should not continue, but does not diminish the solidity of the home that Ramona has established for the children.

Assignment of Error Number 4

In his fourth assignment of error, Wade asserts that the facts do not weigh in Ramona’s favor as they pertain to factor (10) of Article 134 which provides:

The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

He points to Ramona’s allowing T.A.W. to move in with him then changing her mind. Ramona testified that before she agreed to the move, she told Wade that the move was on a trial basis. He did not dispute her testimony. We also note that when Ramona allowed T.A.W. to move, Wade agreed that T.A.W. would visit Ramona every other weekend but did not enforce the visitation schedule after learning that Ramona changed her mind. Thus, the actions of both parties reveal that they have got to work on this aspect of their parenting of the children. This factor does not weigh in favor of or against either party.

Assignment of Error Number 5

Factor (12) of Article 134 is the basis of Wade’s fifth assignment of error. It reads:

The responsibility for the care and rearing of the child previously exercised by each party.

Wade argues that Ramona’s previous care and rearing of the children is not as solid as it seems and itemizes four instances which he contends support this proposition. In The instances itemized do not detract from the fact that for five years Ramona had the bulk of the responsibility for rearing the three children and did an excellent job under less than desirable conditions.

Assignment of Error Number 6

Wade’s last objection is to the trial court’s conclusion that it is in the best interest of the children for them to remain together with Ramona. The current status of the law is that siblings being together outweighs the desire of one sibling to live with the other parent. Howze v. Howze, 99-852 (La.5/26/99), 735 So.2d 619. While it is sometimes necessary to separate the children of a family, courts should avoid doing so. Id. “Normally, the welfare of children is best served by leaving them together, so they can have the full benefit of companionship and affection. When feasible, a court should shape its orders to maintain family solidarity.” Shaffer v. Shaffer, 00-1251 (La.App. 1 Cir. 9/13/00), 808 So.2d 354, 358.

We find this especially true in this situation where M.W.W. and A.K.W. have special needs and where T.A.W., because of her age, may be relied on by M.W.W. and A.K.W. more than in a situation where the siblings are closer in age.

Conclusion

We have considered all of the facts herein in fight of the trial court’s conclusions and Wade’s arguments. Our review reveals that, while the trial court did err with regard to one finding of fact, it did not abuse its discretion nor was it manifestly erroneous in its ultimate conclusion that Ramona should continue as the domiciliary parent of T.A.W., M.W.W. and A.K.W. The judgment of the trial court is affirmed. All costs are assessed to Wade Winzor.

AFFIRMED.


author: I,DECUIR, Judge.

text:
    Kevin H. JAMES v. RED SIMPSON, INC., et al.
    No. 03-0304.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      David L. Wallace, Attorney at Law, DeRidder, LA, for Plaintiff/Appellant, Kevin H. James.
    Raymond L. Brown, Jr., Lottie L. Bash, Gold, Weems, Brusher, Sues & Rundell, Alexandria, LA, for Defendant/Appellee, Red Simpson, Inc.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   I,DECUIR, Judge.

Kevin James appeals the grant of summary judgment in favor of his employer, Red Simpson, Inc. For the reasons that follow, we affirm.

FACTS

Kevin James was employed by Red Simpson, Inc. as a lineman. On January 21, 1998, he was working in Florida on behalf of Red Simpson. When working at home in Alexandria, James was allowed to wear whatever clothing he desired. For the Florida job, Red Simpson required James to wear a particular shirt with the company name on it.

While working in the shirt, James was burned when an electric line arced. The shirt, which was alleged to be flame retardant, did not prevent his burns. James filed suit against Red Simpson and his supervisor, Rick Westbrook, alleging that Westbrook, by ordering him to wear the shirt, intended that James be burned or that he knew or should have known that the injury would inevitably result. The defendants filed a motion for summary judgment asserting the employer’s statutory immunity under workers’ compensation law. The trial court granted the motion. James lodged this appeal.

DISCUSSION

James contends that the trial court erred in finding that there were no genuine issues of material fact regarding whether the employer committed an intentional act sufficient to defeat the exclusivity of the workers’ compensation act as a remedy for injured employees. We disagree.

At the outset, we note that appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

La.Code Civ.P. art. 966 charges the moving party with the burden of proving that summary judgment is appropriate. However, when the movant will not bear the burden of proof at trial on the matter that is before the court, the movant’s burden on the motion does not require him to negate all of the essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more of the elements essential to the adverse party’s claim. La.Code Civ.P. art. 966(C)(2). If the adverse party fails to produce factual support to convince the court that he can carry his burden of proof at trial, there is no genuine issue of material fact and granting of the motion is mandated. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41.

The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882. Thereafter, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Id. Thus, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Id.

|3“Facts are material if they determine the outcome of the legal dispute.” Soileau, 702 So.2d at 821. The determination of the materiality of a particular fact must be made in light of the relevant substantive law. Id. In this case, the relevant substantive law is found in La.R.S. 23:1032. If an employee is injured or killed in the course and scope of his employment, the exclusive remedy is workers’ compensation. La.R.S. 23:1032(A). However, when the injury occurs from an intentional act, the employee and his family may seek other remedies. La.R.S. 23:1032(B). This statute, giving a worker and his family a remedy for an intentional injury, states:

Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

In Ponthier v. Brown’s Mfg., Inc., 95-1606, pp. 5-6 (La.App. 3 Cir. 4/3/96), 671 So.2d 1253, 1256-57, we said:

Our brethren on the First Circuit, Court of Appeal visited this issue recently in Landry v. Uniroyal Chemical Co., Inc., 94-1274 (La.App. 1 Cir. 3/3/95); 653 So.2d 1199, writ denied, 95-1381 (La.9/15/95); 660 So.2d 461. That court rendered as follows:
Louisiana courts have narrowly interpreted the intentional act exception to the worker’s compensation exclusivity provisions. (Citations omitted.) In White v. Monsanto Co., 585 So.2d 1205, 1208 (La.1991), the supreme court explained the meaning of “intentional act” under Revised Statute 23:1032(13):
[T]he person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the ^result was substantially certain to follow has an act been characterized as intentional, Bazley v. Tortorich, 397 So.2d 475 (La.1981).
The term “substantially certain” has been interpreted to mean “nearly inevitable,” “virtually sure,” and “incapable of failing.” (Citation omitted.) It requires more than a reasonable probability, even more than a high probability, that an accident or injury will occur. (Citation omitted.) Mere knowledge and appreciation of risk does not constitute intent, nor does reckless or wanton conduct or gross negligence. (Citation omitted.)
Our courts have held that allegations of failure to provide a safe place to work, deficiently designed machinery and disregard of OSHA safety provisions, failure to correct unsafe working conditions, and failure to provide specifically requested safety equipment are not sufficient to invoke the intentional act exception of Revised Statute 23:1032(B) absent proof (or in the case of summary judgment, disputed issues of fact) of either defendant’s desire to harm plaintiff or defendant’s knowledge that his conduct would nearly inevitably cause injury to plaintiff. (Footnotes omitted.)

Id. at 1202.

In the present case, James alleges no conduct on the part of the employer that is sufficient to establish an intentional act under the law. Likewise, we find no such conduct in our review of the record. Accordingly, we find that the grant of defendants’ motion for summary judgment was appropriate.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Kevin James.

AFFIRMED.