author: LOLLEY, J. GASKINS, J., PEATROSS, J.,

text:
    REHABILITATION CONCEPTS PLUS, INC., Charles Jackson, Agent, Plaintiff-Appellee v. Clarence WILLS, Defendant-Appellant.
    No. 42,400-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 10, 2007.
    Rehearing Denied Nov. 29, 2007.
    See also 926 So.2d 771.

      Clarence Wills, pro se.
    Angela M. Smith, for Appellee.
    Before WILLIAMS, GASKINS, PEATROSS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 Clarence Wills appeals a judgment by the Shreveport City Court, Parish of Cad-do, State of Louisiana, in favor of Rehabilitation Concepts Plus, Inc. (“Rehabilitation Concepts”) on its suit on open account. For the following reasons, we reverse the trial court’s judgment.

Facts

As presented on appeal by Rehabilitation Concepts, this lawsuit involves a seemingly straightforward suit on open account by Rehabilitation Concepts against Wills for the amount of $2,188.00. However, beneath the simple facade presented by Rehabilitation Concepts lies far more complicated content.

On January 24, 2003, Wills was involved in a motor vehicle accident, and he obtained treatment from Rehabilitation Concepts-a company that provides rehabilitation and therapy services. Wills received treatment from Rehabilitation Concepts from January 29, 2003 through February 26, 2003. As claimed by Rehabilitation Concepts, Wills failed to pay the amount due of $2,188.00, despite repeated demands for payment. Although the record contains Wills’ consent for treatment, there is no contract for services included that would provide what the terms for payment might have been.

Previously, Wills had filed suit in connection with his accident, which he ultimately settled with National Automotive Insurance Company (“National Automotive”) for $5,700.00. The settlement appears to have included the fees for services provided by Rehabilitation Concepts in the amount of $2,188.00. An initial concursus proceeding was instituted by National Automotive to determine how the settlement proceeds would be | .disbursed. The hearing on that matter took place at the trial court on September 28, 2005, and was the subject of an appeal to this court. See Wills v. National Automotive Ins., 41,034 (La.App. 2d Cir.04/12/06), 926 So.2d 771 {“Wills I”). In the initial concursus proceeding, the trial court entered judgment that allowed the withdrawal of Wills’ settlement proceeds and the payment to Rehabilitation Concepts (along with other creditors in the litigation) of Wills’ debt. However, in Wills I this court vacated that judgment due to procedural irregularities, and the matter was remanded for further proceedings.

On September 26, 2006, the second con-cursus proceeding was held. Although the judgment does not reflect that a representative for Rehabilitation Concepts appeared, the concursus record does contain the minutes from the trial court that show personal service being made on Rehabilitation Concepts on May 22, 2006. The trial court’s judgment dated October 4, 2006, dismissed the concursus proceeding and ordered the disbursement of the entire settlement proceeds to Wills. That judgment makes no mention of Rehabilitation Concepts and was not appealed by any party.

Rehabilitation Concepts filed its petition on open account on September 26, 2006— the same day as the second concursus proceeding. In its statement of claim, it noted that “[i]n a court proceeding this AM in the courtroom of Judge Bill Kelly, the proceeds of settle [sic] are being released to Mr. Wills.” Wills answered that he only owed Rehabilitation Concepts $500.00. Further, he moved for that proceeding to be removed from Small RClaims Court to City Court, which it was. On November 21, 2006, the trial court heard oral arguments and reviewed the presented evidence on Rehabilitation Concepts’ suit on open account. It considered the argument by Wills regarding the concur-sus proceeding and Rehabilitation Concepts’ failure to assert its claim. However, the trial court determined that the record of the concursus proceeding did not indicate that Rehabilitation Concepts had been served with notice so that Rehabilitation Concepts could assert its claim against the settlement proceeds. Based on that, the trial court determined that Wills owed Rehabilitation Concepts $2,188.00 on open account. This pro se appeal by Wills ensued.

Discussion

On appeal, Wills argues that Rehabilitation Concepts is precluded from asserting a claim against him, because it failed to assert its claim during the concursus proceeding. In essence, Wills argues that the concursus judgment is res judicata as to the subsequent claim on open account by Rehabilitation Concepts. We agree.

The peremptory exception of res judicata cannot be supplied by the court— it must be specially pleaded. La. C.C.P. art. 927 B; Knighten v. Knighten, 447 So.2d 534 (La.App. 2d Cir.1984), writ denied, 448 So.2d 1308 (La.1984). Although Wills, appearing herein and at the trial court pro se, has not filed specifically a pleading entitled “Exception of Res Judi-cata,” his argument, both before the trial court and now on appeal, is obviously such. Before both courts, Wills argued that Rehabilitation Concepts had an opportunity to make its claim in the concursus proceedings, but failed to do |4so, and should be precluded from later coming and asserting a claim against him. Whereas the words “res judicata” were never uttered by this pro se litigant, he sufficiently raises the issue of res judicata, and we will consider it on appeal. See Fox v. National Gypsum, Inc., 1996-25 (La.App. 5th Cir.04/30/96), 673 So.2d 1223.

As provided in La. C.C.P. art. 4651, “[a] concursus proceeding is one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.” Concur-sus is a form of procedure and has been characterized as a facility or means of applying the substantive law. The primary purpose of the concursus statute is to avoid a multiplicity of suits and actions, and it contemplates a proceeding leading to a single judgment which finally adjudicates all issues between the parties. Bienville Holding Co., Inc. v. Quality Mach. & Supply, Inc., 29,113 (La.App. 2d Cir.12/11/96), 685 So.2d 429, writ denied, 1996-3083 (La.02/07/97), 688 So.2d 507. The definition of the concursus proceeding under La. C.C.P. art. 4651 requires that two or more competing claimants to a fund or other property be impleaded to made defendants in the action. Id. Each defendant in a concursus proceeding is considered as being both a plaintiff and a defendant with respect to all other parties. La. C.C.P. art. 4656.

In this matter, a review of the court minutes from the second concursus proceeding shows clearly that Rehabilitation Concepts received personal service of notice of the proceedings on May 22, 2006. It is unclear |show the trial court made a determination that Rehabilitation Concepts did not have notice of those proceedings-a finding that was the basis for its ultimate determination that Rehabilitation Concepts should prevail in its claim against Wills. On September 26, 2006, the second concursus proceeding was conducted. Although the judgment rendered following that proceeding does not indicate an appearance by Rehabilitation Concepts, Charles Jackson, the owner and agent of Rehabilitation Concepts, admitted at the trial on the claim for open account that he had knowledge of and was present at the concursus proceeding. Moreover, in the Statement of Claim filed at the trial court by Rehabilitation Concepts and signed by Jackson on September 26th, it noted that the concursus proceeding had taken place that morning, signifying knowledge of the proceeding. Finally, appeal counsel for Rehabilitation Concepts confirmed that Jackson was present at the September 26th concursus proceeding.

Louisiana R.S. 13:4231, which addresses the issue of res judicata, states as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
|⅜(2) If the judgment is in favor of the defendant, all causes of action existing at that time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Further, as stated in the La. Civil Law Treatise, 1A Civil Procedure-Special Proceedings 52, § 4.3:

Res judicata, literally “the thing adjudged,” bars relitigation of claims that have been processed to final judgment in an action between parties. The societal policies underlying the doctrine are obvious: judicial efficiency and fairness to the parties. However, a final judgment should not bar all claims between parties, but only those claims which were or should have been litigated in the suit. The general common law rule is that the judgment bars all claims “which might have been pleaded” in the suit.

In determining the issue at hand, we consider the stated concept of res judi-cata as it pertains to the concursus proceeding, noting that the procedural tool of concursus contemplates a proceeding leading to a single judgment which finally adjudicates all issues between parties. Here, although the trial court erroneously determined otherwise, the record clearly shows that Rehabilitation Concepts was properly served with notice of the second concursus proceeding and Jackson, by his own admission, was present at the hearing on behalf of Rehabilitation Concepts. It was given an opportunity to appear and assert its claim for the funds it was owed as a result of providing medical treatment to Wills. If Rehabilitation Concepts, which appeared through its owner, Jackson (presumably a non-lawyer), was ignorant as to the nature of those proceedings, it was incumbent upon it to |7secure legal counsel to offer advice and to protect its legal rights. Failure to do so, in this case, only served to deprive Rehabilitation Concepts of that portion of the settlement proceeds that it might have otherwise been entitled to. Rehabilitation Concepts’ failure to assert its claim properly during the concursus proceeding served to prevent it from subsequently revisiting the very same issue (i.e., payment of its claim for treatment of Wills’ injuries) against him. Rehabilitation Concepts got its bite at the apple at the concursus proceedings, and it cannot have a second bite on its suit on open account. So considering, we conclude that the judgment rendered by the trial court following the second concursus proceedings is res judicata as to Rehabilitation Concepts’ claim for payment in connection with Wills’ personal injury litigation against National Automotive-claim that clearly existed at the time of the second concursus proceeding.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of Rehabilitation Concepts Plus, Inc. and against Clarence Willis is reversed. Costs of these appeal proceedings are assessed to Rehabilitation Concepts.

REVERSED.

GASKINS, J., dissents with written reasons.

PEATROSS, J., dissents with written reasons.

GASKINS, J.,

dissenting.

hi respectfully dissent from the majority’s reversal of the trial court judgment. I would affirm the trial court, which found that Rehabilitation Concepts was not previously given the opportunity to make its claim against the proceeds in the concur-sus trial.

Rehabilitation Concepts was personally served with the Rule to Show Cause in the concursus claim. On the court date of the Rule to Show Cause, the trial judge ruled on motions and granted a trial on the merits for a later date. From the record, it appears the September 26, 2006, trial date was set by the plaintiff, Clarence Wills, outside of court. A letter was sent by the clerk’s office to Rehabilitation Concepts, notifying it of the September 26 trial date. La.Code of Civil Procedures article 1313 states that “[I]f a pleading or order sets a court date, then service shall be made by registered or certified mail or as provided in Article 1314.” Nothing in the file indicates the letter was sent by registered or certified mail, or that it was served by the sheriff.

At the trial on the open account claim, which is the instant case, the trial judge found no service had been made on Rehabilitation Concepts for the September 26, 2006, concursus trial. It is unclear whether the trial judge did not see the notice letter sent by the clerk’s office or found the letter to be inadequate since it was mailed without registration or certification.

Mr. Jackson, the agent for Rehabilitation Concepts, testified about the concur-sus lawsuit:

Now every time we were subpoenaed to come to court I came here myself and I get right in court. There was never there was nothing ever said about us asserting our claims to 2188. We set through this proceeding and left and went back to the office. We never had were never given the opportunity to assert our claims of 2188 that’s owed to Rehab Concepts. But I was every time we were subpoenaed I was here. Now however this was handled in court I have nothing to do with | ¡.that but I was here. Every single time this came up we were subpoenaed I was here sitting right here in this courtroom.

Mr. Wills emphatically testified that Mr. Jackson was not in court for the concursus trial. The minutes and judgment for that date both list the appearances in court, and neither Mr. Jackson, nor Rehabilitation Concepts, is named.

The majority finds that Mr. Jackson’s testimony means Mr. Jackson was in court on the date of the concursus trial, and failed to assert his claim. I think this statement indicates Mr. Jackson was in court every time he was notified, but that it is unclear whether he was present for the concursus trial. The trial court found that Rehabilitation Concepts was not properly notified of the concursus trial date and did not have the chance to present its claim. Although not specifically named as such, this second lawsuit sought to nullify the concursus judgment. See La. C.C.P. art. 2002(A)(2).

I would affirm the trial court’s judgment, based on Rehabilitation Concepts not receiving adequate notice of the con-cursus trial, and not being allowed to present its claim.

PEATROSS, J.,

dissenting.

_JjThis case involves the language of La. C.C.P. art. 4651 to the effect that “[a] concursus proceeding is one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.” (Emphasis added.) This case turns on the definition of “claims” as used in this article and what the consequence would be of not asserting such “claims.”

The majority takes the position that the claim is the debt between the parties and the debt is essentially waived or extinguished by not asserting it in the previous concursus proceeding against the money, property or mortgages or privileges on property at issue in concursus (“the fund”). I disagree. As I read the statute and appreciate the purpose of a concursus, the claim, as referred to in the article, is only the right of a party to collect money from “the fund” and the penalty for not asserting this right as required in the article is to be precluded from getting that claim paid out of “the fund.” A failure to assert a claim in concursus has no effect on the underlying debt from which the claim arises. Such a failure does not extinguish the debt or affect a debtor’s obligation to pay it.

In many cases, the loss of payment from the concursus fund is essentially loss of any recovery because the debtor may have no additional 12assets to pay the creditor or may have already spent any recovery he collected from “the fund.” Such situations fall under general provisions regulating debtor-creditor relations. In addition, in many situations, such as a dispute over life insurance proceeds or property held by the stakeholder, the only issue between the parties is their conflicting claims to “the fund.” No party has any additional actionable issue to later assert against the opposing party beyond their claim to “the fond.” Loss of their claim in concursus is loss of any recovery.

While case law is surprisingly sparse on whether a debt not asserted in concursus can be brought as a suit on an open account, the case law on concursus supports my view that concursus is about disposition of “the fund,” not about resolving the debt between the parties, unless, of course, by paying the debt out of “the fund” deposited in the registry of the court. For example, in Pearson Distributors, Inc. v. St. Tammany Motors, Inc., 417 So.2d 415 (La.App. 1st Cir.1982), plaintiff filed suit on an open account and defendant sought to convert it into a concursus proceeding. Defendant asserted that there was only a limited fund to pay his many creditors and sought to have that fund equitably distributed. On appeal, the court held that the defendant did not satisfy the requirement for concursus of “competing or conflicting claims” because plaintiff was not seeking payment of any particular fund. The court further held that creditors merely seeking payment from the same debtor does not satisfy the concursus requirement for “competing or conflicting claims.” Thus, the court acknowledged that a concursus proceeding mainly concerns “the fund” at J^issue and not the debtor-creditor relationship between the parties. The court so held even while recognizing that a purpose of concursus is to avoid multiple litigation.

The language used by the majority in the case sub judice further lends itself to be interpreted that all claims arising from the transaction or occurrence that eventually lead to the concursus proceeding must be asserted in the concursus. The majority states that the primary purpose of con-cursus is to avoid a multiplicity of suits and actions, citing Bienville, supra. The majority emphasizes that “concursus contemplates a proceeding leading to a single judgment which finally adjudicates all issues.” While this is standard language found in opinions involving concursus and is certainly true when considered as to claims related to “the fund,” I cannot agree that all the parties in concursus are supposed to bring every dispute they have between them that arose from the same transaction or occurrence that underlies the concursus proceeding.

The limited case law, however, holds to the contrary. In Super Construction Co., Inc. v. New Orleans Levee Board, 286 So.2d 134 (La.App. 4th Cir.1973), writ denied, 288 So.2d 643 (La.1974), the court rejected a defendant’s argument that a previous concursus proceeding was res ju-dicata on the appealed suits. The defendant-general contractor had been the stakeholder in a concursus proceeding and had placed funds that it held belonging to a subcontractor in the registry of the court. The plaintiff-materialman was one of the claimants who had asserted a claim against those funds in the concursus. In the subsequent suit that was the subject of |4the appeal, the plaintiff-materialman sued the defendant-general contractor asserting the same debt that was subject to its claim in the concursus. The court, on appeal, reasoned that:

The concursus judgment was only in relation to the outstanding claims against the funds for the credit of [subcontractor] deposited by [defendant-general contractor] in the registry of the court. The concursus proceeding only resolved the issue of funds in the possession of [defendant-general contractor] belonging to [subcontractor] against which plaintiff made a claim. It did not resolve and did not have before it any claim that [plaintiff-materialman] may have had against [defendant-general contractor] [f]or [defendant-general contractor’s] liability; therefore, res judica-ta is not applicable against [defendant-general contractor] and [its] insurer.

Id. (Emphasis added.) Thus, the court reasoned that the concursus only resolved the issue of “the fund” in the registry of the court and not any other claims between the parties.

The majority also overlooks the primary purpose of concursus, which is often cited as “to protect the stakeholder from multiple liability, from conflicting claims, and from the vexation attending involvement in multiple litigation in which the stakeholder may have no direct interest.” Allen & Norman, L.L.C. v. Chauvin, 04-0519 (La. App. 1st Cir.6/29/05), 916 So.2d 1071; Marquez v. Porgessive Ins. Co., 06-1024 (La.App. 3d Cir.12/6/06), 944 So.2d 876. The effect of a concursus proceeding on subsequent proceedings should be considered in light of this purpose, as well as to generally avoid a multiplicity of lawsuits. It reflects that the purpose and |sfunction of concursus is to resolve the issues concerning distribution of “the fund.”

I further foresee a number of impractical consequences from the majority position. Under the majority’s holding, a creditor with a $100,000 claim against a debtor must enter a concursus proceeding, along with all claimants with significantly smaller claims, over $10,000/$20,000 insurance proceeds placed in the registry of the court. After being unable to satisfy the debt from the concursus fund, the creditor must then sue the debtor for the remainder. In such a situation, the majority’s holding only serves to create a multiplicity of lawsuits. This is, in my mind, neither the purpose of a concursus proceeding, nor does it promote judicial efficiency. To further understand the burden this holding creates on the creditor, finding a court date for the concursus proceeding for which the many claimants are available is daunting and can be nearly impossible. This issue alone can delay the resolution of the concursus for a significant amount of time. Under the majority’s ruling, the satisfaction of the creditor’s claim must wait first for the resolution of the concur-sus and then the completion of a second suit. This result, to me, is unacceptable.

In addition, the creditor might attempt to collect his entire debt from the debtor within the concursus proceedings by means of a cross-claim. This cross-claim would subject the other claimants and the stakeholder to the additional legal proceedings and expense involved with the cross-claim that has nothing to do with their individual claim to the concursus fund. 11 ^submit that such a complex situation is not mandated by the code of civil procedure.

For these reasons, I respectfully dissent

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Why Rehabilitation Concepts did not make a claim at the second concursus proceeding is unknown and unexplained. It is especially perplexing in light of the fact that it' did receive its share of the proceeds at the initial concursus proceeding, which judgment was subsequently vacated by Wills I. On appeal, Rehabilitation Concepts makes no mention of the concursus proceeding and does not address Wills’ argument as to such, focusing solely on the issue of the open account.

      . Wills has also requested additional reimbursement of expenses he claimed to have incurred in connection with his appeal. Said expenses are not recognized costs of the appeal and are not considered herein.

      . I emphasize that, under these facts, the second concursus proceeding did not actually determine any matters related to the debt owed by Wills. The res judicata effect of matters actually argued and decided in the concursus proceeding is not before us.

      . Note that the court allowed a claimant from the concursus to later sue the stakeholder. Thus, this case also supports, by analogy, that a concursus claimant would also be able to later sue another claimant.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Archie GILLILAND, Jr., Plaintiff-Appellant v. CITY OF MONROE, Defendant-Appellee.
    No. 42,458-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 10, 2007.
    Rehearing Denied Nov. 29, 2007.

      Street & Street by C. Daniel Street, Monroe, for Appellant.
    Nanci S. Summersgill, for Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   CARAWAY, J.

|TAfter plaintiffs withdrawal from the workforce in 1997 following many years of service as a firefighter, he developed lung disease and brought this workers’ compensation claim against the defendant pursuant to La. R.S. 33:2581, which addresses occupational diseases of firemen. From the medical evidence, the Workers’ Compensation Judge (“WCJ”) concluded that plaintiffs lung disease was manifested by symptoms arising after employment and did not develop during employment. Plaintiff appeals the denial of workers’ compensation benefits. We find that despite the presumptions of occupational disease for firemen under the statute, the WCJ’s conclusions are not manifestly erroneous. We affirm.

Facts

Archie Gilliland (“Gilliland”) was employed by the City of Monroe (the “City”) in the fire department for 33 years, from 1964 until 1997. He stopped working in April 1997, at age 58, and began receiving state retirement benefits. In addition to his employment as a fireman, Gilliland worked other part-time jobs to supplement his income between 1964 and 1987.

In January 1999, Gilliland was diagnosed with lung cancer and underwent a thoraco-tomy and partial lobectomy on January 23, 1999. He also suffered from emphysema, and a pulmonologist diagnosed chronic obstructive pulmonary disease (“COPD”) shortly after his surgery.

After receiving the lung cancer diagnosis and undergoing surgery, Gilliland began receiving workers’ compensation benefits in the form of | {.supplemental earnings benefits (“SEBs”) from the City. The City paid him $394/week from April 19, 1999, until it discontinued benefits on September 6, 2005. Three weeks later, Gilliland filed this claim with the Office of Workers’ Compensation (“OWC”).

The Form 1008 alleged a “Heart/lung act claim — lung cancer — surgery” and described Gilliland as a “Fireman disabled by lung cancer.” Gilliland sought penalties and attorney’s fees for wrongful discontinuance of indemnity benefits and the City’s failure to approve necessary medical treatment. Gilliland claimed entitlement to SEBs and/or permanent total disability (“PTD”), legal interest and all costs. The City’s answer disputed Gilliland’s claim, alleging that his disability arose after his retirement from employment.

At trial, the parties stipulated that benefits were paid until September 6, 2005. Gilliland testified and discussed generally his exposure to smoke in carrying out his duties through the years. Gilliland acknowledged that he chewed tobacco and smoked cigarettes, but apparently stopped smoking a short time before his 1999 chest x-ray revealed an opacity in his lung. Numerous medical records and the deposition of one of Gilliland’s doctors were introduced.

In the ruling, the WCJ considered the effect of La. R.S. 33:2581 on Gilliland’s workers’ compensation claim, in particular the statutory presumption that diseases of the heart and lung contracted by firefighters develop during and are caused by the firefighter’s employment. The WCJ found that the City successfully overcame this statutory presumption of ^causation by showing medical evidence, and that Gilli-land’s COPD was also related to his smoking.

The WCJ also found, alternatively, that under the jurisprudence, Gilliland had voluntarily withdrawn from the workplace for retirement in 1997. As a retiree, assuming disability occurred in 1999, he was only entitled to 104 weeks of SEBs under La. R.S. 23:1221(3)(d)(Hi). The WCJ found the City paid SEBs from April 19, 1999, through September 6, 2005 (approximately 333 weeks), and had satisfied any obligation for payment of workers’ compensation benefits to Gilliland. In reaching this conclusion, the WCJ also rejected Gilli-land’s argument that he was permanently and totally disabled under La. R.S. 23:1221(2)(c).

Gilliland appeals the judgment, raising the following issues:

1. Were the presumptions provided by the Heart and Lung Statute, La. R.S. 33:2581, overcome by the evidence presented by the City in this case?
2. Did Appellant prove with clear and convincing evidence that he is totally and permanently disabled?
3. Alternatively, did Appellant prove that he is entitled to supplemental earnings benefits?
4. In the event that Appellant is not totally and permanently disabled, was it proven that he voluntarily retired so as to limit his supplemental earnings benefits to one hundred four weeks?
5. Was this claim reasonably controverted so as to avoid the imposition of penalties and attorney fees?

Discussion

La. R.S. 33:2581 provides for firemen the Heart and Lung Act (the “Act”), as follows:

|4Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, pri-ma facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

The Act’s classification of the two health infirmities as occupational diseases entitles the fireman to workers’ compensation benefits, and the general workers’ compensation law applies. McElwee v. City of Bossier City, 34,345 (La.App. 2d Cir.12/6/00), 775 So.2d 588, writ denied, 01-0049 (La.3/9/01), 786 So.2d 737.

As originally enacted in 1968, the last sentence of the Act gave only a legal presumption that the lung or heart disease “developed during employment,” after the fireman’s first five years of employment. The first case that addressed the Act, Bates v. Bituminous Cas. Corp., 266 So.2d 556 (La.App. 3d Cir.1972), asserted that this initial legal presumption of the Act did not extend to the question of whether such diseases were presumed to be caused by the nature of the work of the fireman. The court concluded that the plaintiffs doctor was unable to express an opinion regarding whether the plaintiffs work as a fireman for ten years was the probable cause of his heart attack. The plaintiff was given the burden of proof; the ]¿fireman’s heart condition was determined not to be work related; and workers’ compensation benefits were denied.

The narrow ruling in Bates can be criticized because the clear import of the first sentence of the Act, which remains unchanged from its original enactment, is that the development of the disease alone during employment results - in an occupationally “connected” disease. See, Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4th Cir.1976), unit denied, 329 So.2d 760 (La.1976) (which refused to follow Bates, finding that the Act as originally enacted provided a rebuttable presumption that the nature of the work caused the disease). Nevertheless, in an apparent reaction to the Bates ruling, the Act was amended in 1975 to make clear that the Act provided a presumption of work-related causation after the first five years of employment.

Significantly, the language of the Act highlights a distinction between the development and manifestation of the disease. Gilliland asserts in this case the statute’s presumption that his lung disease developed during his employment as a fireman even though the actual manifestation of his cancer occurred when he was no longer a fireman. He asserts that this presumption of the time of development of his disease and the work-related causation presumption were not recognized and applied properly by the WCJ. Citing jurisprudence of this court, Gilliland asserts that the Act shifted the burden of proof to the City and that it “had the difficult, almost impossible burden of proving the negative-that [Gilli-land’s] infirmity of the [lung] could not have resulted from his service as a fireman.” McCoy v. City of Shreveport, 26,181 (La.App. 2d Cir.1/25/95), 649 So.2d 103, 109; Coats v. City of Bossier City, 31,164 (La.App. 2d Cir.10/30/98), 720 So.2d 1283, writ denied, 99-0019 (La.2/12/99), 738 So.2d 581. See also, McClure v. City of Pineville, 06-0279 (La.App. 3d Cir.12/6/06), 944 So.2d 795, writ denied, 07-0040 (La.3/9/07), 949 So.2d 445.

The legal presumption contained in the Act is an evidentiary presumption, bringing into play Code of Evidence Articles 301, et seq., which define the foundation, weight and other effects of such presumption. Upon the enactment of this legislation in 1997, the official comment to Article 301 observed:

(a) True evidentiary presumptions address evidentiary facts, not legal conclusions, and are classically styled in the form: “If A, then B,” or more explicitly “If [evidentiary fact] A [is established], then [evidentiary fact] B [shall be considered established,] unless the opponent meets a certain specified burden....

Article 304 provides that “[presumptions regulated by this Chapter are rebuttable presumptions and therefore may be controverted or overcome by appropriate evidence.” To the contrary, a conclusive presumption set by legislation may not be controverted or overcome by evidence to the contrary. La. C.E. art. 303 and its Official Comment.

Article 302 provides the following definitions pertinent for the measure of the presumption afforded by the Act, as follows:

(1) The “burden of persuasion” is the burden of a party to establish a requisite degree of belief in the mind of the trier of fact as to the' existence or nonexistence of a fact. Depending on the circumstances, the degree of belief may be by a preponderance of the evidence, by clear and convincing evidence, or as otherwise required by law.
| ?(2) A “predicate fact” is a fact or group of facts which must be established for a party to be entitled to the henefits of a presumption.
(3) A “presumption” is an inference created by legislation that the trier of fact must draw if it finds the existence of the predicate fact unless the trier of fact is persuaded by evidence of the nonexistence of the fact to be inferred. As used herein, it does not include a particular usage of the term “presumption” where the content, context, or history of the statute indicates an intention merely to authorize but not to require the trier of fact to draw an inference.
(4) An “inference” is a conclusion that an evidentiary fact exists based on the establishment of a predicate fact.

With these definitions, Article 306 provides as follows: ■

If the trier of fact-finds the existence of the predicate fact, and if there is evidence controverting the fact to be inferred, it shall find the existence of the inferred fact unless it is persuaded by the controverting evidence of the nonexistence of the inferred fact.

In this case, the undisputed “predicate fact” was Gilliland’s employment as a fireman for over five years. The “presumptions” the Act creates are two “inferences” which are the evidentiary facts supporting Gilliland’s claim. It may be inferred (i) that Gilliland’s lung disease developed during his employment, and (ii) that the disease was caused by his work as a fireman.

Significantly, these two inferred facts giving the plaintiff an evidentiary benefit are nonetheless circumstantially produced “inferences.” They are not products of direct evidence pinpointing the exact timing of development of the disease or its etiology in relation to an identified risk encountered on the job. Moreover, since the statute provides no conclusive presumption but only an evidentiary benefit, Article 306 provides that the |,⅞trier of fact need not credit the inference gained from the Act if “it is persuaded by the controverting evidence of the nonexistence of the inferred fact.” That controverting evidence, likewise, may be circumstantial evidence, as would be expected for the frequently difficult task of identifying the development and cause of heart or lung disease. Thus, in a given case the trier of fact may choose circumstantial evidence that tends to disprove the statutory inferences gained under the Act. For example, a fireman who worked for five years and leaves employment with the department at age 30, would find the statutory inferences of the Act for an occupational disease claim greatly overshadowed by other inferences concerning his heart disease first experienced at age 75.

There being no conclusive presumption given by the Act, dictum in the jurisprudence of the “almost impossible burden of proving a negative” does not accurately comport with the evidentiary considerations that were before the WCJ after the clarifying 1997 legislation in Articles 304 and 306 providing for the evidentiary treatment of rebuttable presumptions. That dictum in many of the cases was expressed in a context where the fireman was disabled by the manifestation of the heart or lung disease during employment or immediately after retirement. Yet, with the passage of time after termination of work as a fireman, controverting evidence, circumstantial or otherwise, can arise that may alter the evidentiary equation allowing the statutory classification of the diseases as inferentially occupational to be overcome.

IgFinally, before reviewing the competing inferences from the evidence before the WCJ, we note that the Act has never been interpreted by our highest court and that the majority of reported cases do not involve the manifestation of the disease after the termination of work. No case has ever employed the 1997 Code of Evidence provisions for the measure of the evidence in rebuttal of the Act’s evidentia-ry presumptions. With this backdrop, we must determine whether, as asserted by appellant, the WCJ was manifestly in error in crediting evidence that inadequately controverts the inferred facts of the statute supporting the fireman’s claim. Edwards v. Sawyer Indus. Plastics, Inc., 99-2676 (La.6/30/00), 765 So.2d 328, citing Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992); Peters v. General Motors Corp., 39,279 (La.App. 2d Cir.1/26/05), 892 So.2d 717. The manifest error/clearly wrong standard of appellate review applies in workers’ compensation actions even when the tribunal’s decision is based solely upon written reports, records, or depositions. Peters v. General Motors Corp., supra.

Gilliland’s 1008 claim form alleged an occupational disease of his lungs beginning in October 1998. Although Gilliland’s cancer was specifically identified as the disease, the medical evidence at trial revealed two lung diseases: (1) COPD; and (2) carcinoid tumor of the right lung. After his lung surgery on January 23, 1999, claimant continued to experience symptoms of shortness of breath (or dyspnea) and breathing problems. The cancer related to the removed tumor remains in remission.

_hfOPD

Appellant’s family physician, Dr. Warren Daniel, treated claimant beginning in 1984. In his testimony, Gilliland reported having bronchitis and breathing problems as early as the 1980s. On December 14,1996, Gilli-land was in a motor vehicle accident and hurt his back. He retired in the spring of 1997. In mid-October 1997, appellant complained of shortness of breath when seeking treatment for a sore throat. Significantly, the 1997 chest x-ray was “negative for pulmonary disease.” When Gilli-land saw Dr. Daniel on March 10, 1998, again for chest pain, he reported smoking one pack of cigarettes per day.

On January 4, 1999, he saw Dr. Daniel and complained of pain in his mid-chest and shortness of breath with minimal activity, lasting two months. The result of a chest x-ray that day showed emphysema-tous lungs and an “ill-defined opacity” in the right lower lung. A January 7, 1999 CT scan revealed “an ill-defined area of increased density” with “a somewhat nodular appearance ... extending] outward to the periphery of the lung.”

Thereafter, Dr. Thomas J. Gullatt, a pul-monologist, saw claimant by referral on January 13, 1999. Dr. Gullatt obtained medical history that Gilliland reported having been a one pack per day smoker for 25 years, but stopped smoking the year before. He diagnosed two problems: ex-ertional dyspnea of uncertain etiology, and an inflammatory area in the right infrahi-lar region. The results of a pulmonary function test led to Gilliland being diagnosed with “some mild COPD,” which Dr. Gullatt considered |11“mild” in relation to the amount of symptoms Gilliland was experiencing. Dr. Gullatt felt the “mild to moderate COPD ... could be an aspect of the patient’s occupational exposure as a fireman and being exposed to pollutants, hazardous materials, smoke, etc.”

In August 2001 and after the removal of a portion of the lung, Dr. Gullatt diagnosed the worsening exertional dyspnea as a chronic, recurrent problem. A pulmonary function study suggested “marginal reduction in FEV-l/FVC ration,” “borderline obstructive impairment,” and “no evidence of restrictive impairment.” Two years later, on August 6, 2003, Dr. Gullatt evaluated Gilliland again after a spirogram and wrote, “his pulmonary function indicates significant limitations to his ability to exert himself and undergo vigorous activity.”

Also in February 1999, Dr. Coy Gam-mage, an oncologist, began treating Gilli-land post-operatively. Dr. Gammage defined COPD as a lung problem most commonly associated with cigarette smoking, that may also occur with other “pulmonary-type exposures” to smoke.

Dr. Ronald Hammett treated Gilliland after Dr. Gullatt’s practice closed, beginning on February 15, 2005. Pulmonary function testing on February 16, 2005, showed “mild obstructive or restrictive ventilatory dysfunction.” Dr. Hammett prescribed home oxygen for Gilliland to wear while sleeping and to alleviate exer-tional dyspnea. Dr. Hammett’s letter dated December 21, 2005, stated he treated Gilli-land for chronic lung disease and that claimant was “chronically debilitated as a result of’ his 1999 surgery and therapy, and also suffered from hypertension. Claimant’s |12two check-up visits to Dr. Hammett in 2006, on April 12 and July 5, showed little change. His last pulmonary function test on July 20, 2006, found the same problem, “mild or minimal obstructive ventilatory dysfunction.” Dr. Daniel’s letter dated February 23, 2006, also stated that claimant was “chronically debilitated.”

Carcinoid Tumor

The bronchoscopy performed by Dr. Gullatt in January 1999 revealed a poly-poid lesion in the lateral segment of the right lower lung, and a biopsy showed positive pathology for a carcinoid tumor. Dr. William Ferguson, a thoracic surgeon, operated on claimant’s right lung and removed the tumor. Dr. Ferguson’s admission note reflects that he was “not convinced that the endobronchial lesion that was seen by Dr. Gullatt in biopsy and proved to be a carcinoid tumor is necessarily related to all his symptoms.” The doctor noted Gilliland had been a fireman and expressed some question about the long-term inhalation of smoke. Dr. Ferguson thought this could be a “possible etiology” of his problem and also noted his history of smoking until one year before his lung surgery.

Dr. Gammage testified by deposition that claimant did not need adjuvant therapy after his thoracotomy. Routine testing conducted periodically never revealed any recurrence of metastatic disease in Gilli-land’s lungs. By 2005, claimant’s chest x-ray was characterized as “radiologically stable.”

As for when the excised tumor developed, Dr. Gammage stated there were two basic types of tumors. An atypical variety is aggressive and [^rapidly growing, and the more typical carcinoid tumors which grew more slowly. In his opinion, claimant had the slow-growing type, which was also suggested by his remaining cancer-free since 1999. In Dr. Gammage’s opinion, the cancer could possibly have taken years to grow large enough to have been identified. Nevertheless, he said, “exactly how long it takes from some kind of exposure, genetic change, ... to eventually lead to a malignancy development, is kind of up to debate.”

Concerning the issue of whether the tumor was work-related, Dr. Gammage expressed the following:

So we basically really don’t have a good understanding of what may or may not actually lead to the development of a carcinoid tumor. So, you know, we — you know, they are fairly certain that cigarette smoke does not. But whether other types of chemical exposures will, nobody knows that. It’s generally thought that some potential risk factors are, you know, related to genetics, specifically about a condition called multiple endocrine neoplasia. But as regards to some sort of chemical toxic exposure, nobody knows.

Finally, Dr. Gammage stated that claimant was not disabled from cancer because he is in remission. Nevertheless, he opined that Gilliland was disabled from working as a fireman due to his diminished pulmonary capacity resulting from COPD and the partial lobectomy. At the time of his 2006 deposition, Dr. Gammage agreed that, even at age 65, Gilliland could perform a part-time, sedentary job.

Regarding the COPD, the WCJ placed great weight on Gilliland’s post-retirement chest x-ray in 1997 which showed no active pulmonary disease. Despite Gilliland’s testimony of his prior shortness of breath, the inferred fact gained by the Act’s presumption that COPD developed during | ^employment is reasonably disputed by the results of the chest x-ray. The presumption of the Act that the COPD had a work-related causation found support from some of the medical records. Nevertheless, Dr. Gammage in his testimony suggested that the most common cause of COPD was cigarette smoking. The manifestation of COPD in late 1998 was also complicated by the fact of Gilliland’s tumor and the lung surgery in early 1999. From this medical evidence, we find that there was sufficient controverting evidence of the time of the development of COPD and its work-related causation. The WCJ was not clearly wrong in rejecting COPD as an occupational disease.

Regarding Gilliland’s carcinoid tumor, Dr. Gammage’s testimony was clear that smoke-related causation was unlikely. He attributed genetics as the only known cause for such tumor. This testimony controverts the inferred fact of work-related causation provided by the Act. Also, the 1997 chest x-ray strongly indicates that the development of the tumor may not have even begun during Gilliland’s prior employment. Thus, the WCJ’s conclusion of no occupational disease regarding the tumor is not clearly wrong.

In summary, we recognize that the choice between the statutory “inferences” and the inferences tending to dispute Gilli-land’s disease as occupationally related makes this a close case and a difficult one for review under the manifest error standard. However, unless the statutory inferred facts or “inferences” receive higher evidentiary weight than the controverting inferences from the medical evidence discussed above, the |1KWCJ’s choice between the reasonable competing inferences was not clearly wrong. The Code of Evidence provisions on rebuttable presumptions do not require any higher burden of persuasion to overcome the statutory inferred facts. La. C.E. art. 306. Accordingly, we affirm the ruling of the WCJ finding the absence of an occupational disease.

Conclusion

For the foregoing reasons, the trial court judgment is AFFIRMED. Costs of the appeal are assessed to appellant.

AFFIRMED.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Gilliland's overall medical records support the conclusion that he stopped smoking in April 1998.

      . We are therefore not required to address the WCJ’s alternative ruling denying the further payment of SEBs under the authority of La. R.S. 23:1221 (3)(d)(iii). Because of the overwhelming evidence of Gilliland's retirement and withdrawal from the workforce in 1997, the ruling also appears correct. See, Peters v. General Motors Corp., 39,279 (La.App. 2d Cir. 1/26/05), 892 So.2d 717.


author: SAUNDERS, Judge.

text:
    John E. BEARD, et ux. v. COREGIS INSURANCE CO., et al.
    No. CA 07-314.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 2007.

      Daniel G. Brenner Bolen, Parker & Brenner, Alexandria, LA, for Defendants/Appellants, Coregis Ins. Co., St. Landry Parish School Board, Gloria D. Lalonde.
    Chad P. Pitre, Opelousas, LA, for Plaintiffs/Appellees, John E. Beard, Kay Beard.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

[ t This is a personal injury case arising from a collision between a pickup truck and a school bus near the shoulder of a four-lane highway. The injured driver of the pickup truck brought suit against the school bus driver, joining as defendants the bus driver’s employer and the carrier of the insurance policy covering the bus. At a trial on the merits before the 27th Judicial District Court in St. Landry Parish, a jury found for the plaintiff and awarded damages totaling $194,059.00. The plaintiff then moved for a Judgment Notwithstanding the Verdict (hereinafter “JNOV”) as to the amount of damages awarded. The trial judge granted the JNOV motion, increasing the damage amount by $135,000.00. The defendants appealed to this court, charging four assignments of error. The plaintiff has answered the appeal and asserts one assignment of error. For the reasons set forth below, we affirm the trial court’s decision in full.

FACTS AND PROCEDURAL HISTORY:

On January 23, 2004, Gloria Lalonde (hereinafter “Ms. Lalonde”) and John Beard (hereinafter “Mr. Beard”) were involved in an automobile accident on U.S. Highway 190 (hereinafter “190”), between the cities of Baton Rouge and Opelousas. Ms. Lalonde, the operator of a sixty-six passenger school bus belonging to the St. Landry Parish School Board (hereinafter “School Board”), was transporting children home from school in a westerly direction along 190 when she decided to stop at the home of her acquaintance, Mary Glossup (hereinafter “Ms. Glossup”), to use the restroom. Ms. Glossup’s home was located on the northern side of 190 at the end of a private driveway. Having returned to the driver’s seat, Ms. Lalonde began backing the school bus out of the driveway in an attempt to resume traveling west .on 190. As Ms. Lalonde backed out, Mr. Beard’s truck, traveling in the right lane of 190, | ¡.approached from the east. The two vehicles collided. After the accident, Mr. Beard consulted an orthopaedic surgeon, Dr. Louis Blanda, who diagnosed Mr. Beard with multiple herniated discs in his neck and lower back.

Mr. Beard brought suit on October 22, 2004, in the 27th Judicial District Court in St. Landry Parish, against Ms. Lalonde, the School Board, and Coregis Insurance Company (hereinafter “Coregis”) (collectively, “the defendants”), claiming damages for negligent personal injury. At trial, the jury heard testimony from Dr. Blanda in which he attributed Mr. Beard’s back and neck injuries to the accident in question. Dr. Blanda further testified that because Mr. Beard suffers from an unrelated heart condition, he is a poor surgical risk for the corrective procedure associated with his injuries. After a trial on the merits, the jury found for Mr. Beard on August 25, 2006, and awarded damages as follows: ;

1. Past Pain, Suffering, and Mental Anguish $10,000.00

2. Future Pain, Suffering, and Mental Anguish $20,000.00

3. Physical Disability $0

4. Loss of Enjoyment of Life $0

5. Past Medical Expenses $14,059.00

6. Future Medical Expenses $45,000.00

7. Past Economic Loss $35,000.00

8. Future Economic Loss $70,000.00

Mr. Beard subsequently filed a motion for JNOV, requesting the trial court to increase the amount of general damages awarded (i.e, past pain, suffering, and mental anguish; future pain, suffering and mental anguish; physical disability; and loss of enjoyment of life). The court granted Mr. Beard’s JNOV motion and modified the [ -¡relevant damage awards as follows:

1. Past Pain, Suffering, and Mental Anguish $30,000.00

2. Future Pain, Suffering, and Mental Anguish $80,000.00

3. Physical Disability $40,000.00

4. Loss of Enjoyment of Life $15,000.00

The defendants appealed suspensively from the trial court’s judgment, asserting four assignments of error. Mr. Beard has answered the appeal and asserts a fifth assignment of error.

ASSIGNMENTS OF ERROR:

1. Did the trial court commit manifest error in the use of a verdict form, which required the jury to consider both negligence and causation as to both drivers?
2. Did the trial court commit manifest error when the jury found both Ms. Lalonde and Mr. Beard negligent but then found Ms. Lalonde to be 100% at fault in causing the accident?
3. Did the trial court commit an error of law in granting Mr. Beard’s motion for JNOV?
4. Did the jury commit manifest error in awarding past lost earnings in the amount of $35,000.00 and future loss of earnings in the amount of $70,000.00?
5. Did the trial court commit manifest error in awarding an inadequate amount of general damages for multiple herniated discs?

ASSIGNMENT OF ERROR # 1:

The defendants argue that the trial court erred in using a verdict form containing interrogatories which asked the jury first to make a determination as to whether the relevant conduct of each driver was “negligent,” and then to make a separate determination as to whether each driver’s negligence was a “proximate cause” of'the accident in question. The defendants contend that such interrogatories |4were so misleading or confusing as to constitute reversible error.

By way of counter-argument, Mr. Beard asserts that the defendants have waived their right to object to the jury interrogatories at this stage in the proceedings. Because Mr. Beard raises the threshold issue of waiver, we address his argument first.

A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.

La.Code Civ.P. art. 1793(C). Where a party does not object to jury charges at trial, that party waives the right to so object on appeal. Libersat v. J & K Trucking, Inc., 00-192 (La.App. 3 Cir. 10/11/00), 772 So.2d 173, writ denied, 01-458 (La.4/12/01), 789 So.2d 598. “It is only when jury instructions or interrogatories contain a ‘plain and fundamental’ error that the contemporaneous objection requirement is relaxed and appellate review is not prohibited.” Campbell v. Hospital Serv. Dist. No. 1 Caldwell Parish, 37,876, p. 6 (La.App. 2 Cir. 12/10/03), 862 So.2d 338, 344, writ denied, 04-69 (La.3/19/04), 869 So.2d 852.

Here, the trial record indicates that the defendants failed to object to the jury instructions regarding “proximate cause” at any point prior to the jury’s retiring to consider the verdict or immediately thereafter. Thus, unless the jury instructions or interrogatories in the case at bar contain a “plain and fundamental” error, we must consider the defendants’ objection waived. Id.

The defendants contend that the lower court’s bifurcation of “negligence” and “proximate cause” determinations into separate jury interrogatories constitutes “plain and fundamental” error sufficient to preserve their right to object on appeal. In |Bsupport of this contention, the defendants cite Fowler v. Roberts, 556 So.2d 1 (La.1989). There, the Louisiana Supreme Court held:

The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).

Fowler, 556 So.2d at 4. Specifically, the defendants argue that a verdict form containing separate interrogatories regarding “proximate cause” and “negligence” is plainly erroneous, in that it is impossible to find negligence without proximate cause, as the latter is merely an element of the former. We find this argument without merit.

In Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557, the Louisiana Supreme Court considered the propriety of a similar jury verdict form in a personal injury trial stemming from an allegedly negligent pedicure. There, the form at issue asked the jury to determine first whether the defendant was “negligent” and then whether that negligence “caused” the plaintiffs injuries. In overruling the lower court’s finding that the verdict form violated Fowler, the Detraz court explained:

[I]n Fowler, this Court was not defining “negligence” but was instead defining “liability” in a negligence case. “Negligence” has been defined by this Court as follows: “conduct which falls below the standard of care established by law for the protection of others against an unreasonable harm.” Thus, the court of appeal erred in ruling that a finding that the defendants were negligent in performing the pedicure “enfolds all five of the Fowler factors, including causation.”

Detraz, 950 So.2d at 562.

In the instant case, Ms. Lalonde assigns as “plain and fundamental” error the [ r,trial court’s “dissecting proximate cause out of the negligence determination.” However, as Detraz makes clear, proximate cause and negligence are actually coequal factors in the overall determination of liability in a negligence case. The trial court cannot “dissect” out of negligence that which is not a component of negligence to begin with. Thus, the defendants’ argument must fail, and we must consider their objection to the jury verdict form waived.

ASSIGNMENT OF ERROR # 2:

The defendants’ contend that the jury committed an error of law in concluding that Mr. Beard was “negligent” but not a “proximate cause” of the accident. We disagree.

As discussed above, “proximate cause” is not subsumed by a finding of “negligence.” Detraz, 950 So.2d 557. “Proximate cause” is cause “which immediately precedes and produces the effect, as distinguished from remote, mediate, or predisposing cause[.]” Hinegardner v. Dickey’s Potato Chip Co., 205 So.2d 157, 161-62 (La.App.1967), writ denied, 251 La. 746,. 206 So.2d 94 (1968). Cause “from which the fact might be expected to follow without the concurrence of any unusual circumstance” is “proximate cause.” Id. at 162. “ ‘Proximate’ cause primarily inquires whether a party’s duty extends to the particular risk in question that causes injury to another party in a tort action.” Frost v. Albright, 460 So.2d 1125, 1127 (La.App. 2 Cir.1984), writ denied, 462 So.2d 1266 (La.1985) (emphasis in original).

In the instant case, the defendants argue that Mr. Beard proximately caused the accident by failing to change lanes upon observing Ms. Lalonde’s attempting to reverse her bus onto 190, yet the defendants cite neither case nor statute that extends such a duty to Mr. Beard. On the contrary, in such situations, it is the reversing party |7upon whom the law places the duty to avoid incident: “An unusual degree of care is required of motorists who drive vehicles from a private driveway into a highway, and this requirement is increased when the vehicle is being backed into the highway.” Josey v. Granite State Fire Ins. Co., 122 So.2d 303, 306 (La.App. 2 Cir.1960). “When executing such a maneuver, the motorist must proceed with utmost caution and use great care and attention to be sure that it can be accomplished without interfering with other vehicles.” Schackai v. Tenneco Oil Co., 436 So.2d 729, 732 (La.App. 4 Cir.1983). Further, this court has previously held that a driver who is already on the roadway has the right to assume that a motorist on a private driveway will not enter the roadway until the driver has already passed. Valin v. Barnes, 550 So.2d 352 (La.App. 3 Cir.), writ denied, 552 So.2d 399 (La.1989).

As an initial matter, this court finds it difficult to distinguish any basis for concluding that Mr. Beard was negligent at all. The record indicates that Mr. Beard was not driving at an excessive rate of speed, did not fail to maintain a proper lookout, and at no point exhibited anything less than complete control of his truck. It was Ms. Lalonde’s duty to exhibit an unusual degree of caution and attention in reversing her bus onto the highway, and it was Mr. Beard’s right to assume that Ms. Lalonde would not enter his lane until it was safe to do so. Ms. Lalonde’s failure to exhibit the requisite degree of care in entering the roadway was the cause that immediately preceded and produced the collision at issue here, and thus the jury did not commit an error of fact in concluding that Ms. Lalonde was the sole proximate cause of the accident, notwithstanding whatever negligence it may have attributed to Mr. Beard.

We are unable to determine what action on the part of Mr. Beard constituted | Rnegligence. We are, however, satisfied that the jury’s conclusion that Mr. Beard was not guilty of negligence that proximately caused the accident is supported by the record. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR # 3:

The defendants further argue that the trial court committed an error of law in granting Mr. Beard’s motion for judgment notwithstanding the verdict (JNOV). More to the point,' the defendants assert that the trial court failed to apply the appropriate standard of consideration in granting Mr. Beard’s motion.

Louisiana Code of Civil Procedure Article 1811 governs the use of JNOV. As outlined by the supreme court in Scott v. Hospital Service District No. 1, 496 So.2d 270, 274 (La.1986), JNOV is warranted when “the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict[.]” Id. (quoting Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969)). The motion should be granted “only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover.” Id. (quoting Robertson v. Penn, 472 So.2d 927, 929 (La.App. 1 Cir.)), writ denied, 476 So.2d 353 (La.1985). The motion should be denied if there is “evidence opposed to the motion [which is] of such quality and weight that reasonable [persons] in the exercise of impartial judgment might reach different conclusions^]” Id. (quoting Boeing, 411 F.2d at 374). However, “[i]n making this determination, the trial court should not evaluate the credibility of witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.” Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991).

Anderson went on to clarify the scope of this court’s review on appeal:

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.

Id.

In the instant case, the defendants argue that the trial court erred in granting Mr. Beard’s motion for JNOV, which thereby raised the total general damage award from $30,000.00 to $165,000.00. We disagree. In granting Mr. Beard’s JNOV motion, the lower court signaled its view that the facts and inferences of the case at bar point so strongly and overwhelmingly in favor of supplementing the general damages awarded to Mr. Beard that reasonable persons in the exercise of impartial judgment could arrive at no other conclusion. Such a view finds support in the record evidence.

Here, the more than $160,000.00 awarded for past and future medical expenses and economic losses indicates that the jury regarded the evidence presented by Mr. Beard regarding his back injury to be credible, yet the same jury declined to award any damages at all for Mr. Beard’s physical disability. Such a result seems incompatible with the record evidence, as the uncontroverted testimony of Mr. Beard’s medical expert, Dr. Blanda, proclaimed him to be “totally and permanently disabled.” At trial, rather than presenting the testimony of their own medical expert, Dr. Robert Morrow, the defendants chose instead to rest on her cross-examination of |inDr. Blanda, at which time she called the credibility of Dr. Blanda’s testimony into question. As outlined above, however, in ruling upon a motion for JNOV a trial court is not permitted to evaluate questions of witness credibility, but must constrain its evaluation to the facts contained in the record and the inferences to be made therefrom. Id. Even assuming that Ms. Lalonde’s cross-examination established a lower damage amount for Mr. Beard’s physical disability than otherwise would have been justified, such questioning does not represent countervailing evidence sufficient to justify a damage amount of zero. In failing to introduce into the record evidence contradictory to Dr. Blanda’s testimony, the defendants foreclosed the possibility of reasonable minds’ reaching different conclusions as to Mr. Beard’s physical disability. Thus, the trial court’s JNOV regarding physical disability must stand.

Similarly, the trial court’s decision to raise the damage award for Mr. Beard’s loss of enjoyment of life from zero to $15,000.00 is also valid. Mr. Beard’s un-controverted testimony indicates that although he was able to participate after the accident in his customary activities of hunting and gardening, he was unable to do so without experiencing additional and excessive pain. In light of such testimony, it seems inconceivable that reasonable men exercising impartial judgment could conclude that Mr. Beard’s injury in no way negatively impacted his enjoyment of life, such that his damages under this heading should be feed at zero. Thus, the trial court’s JNOV increasing these damages was proper.

Finally, the trial court was justified in increasing Mr. Beard’s damages for past and future pain, suffering, and mental anguish from $80,000.00 to $110.000.00. The defendants cite in opposition Wainwright v. Fontenot, 00-0492, (La.10/17/00), 774 So.2d 70, a tort case involving the calculation of general damages owed by a drug Instore for its negligent mislabeling of the proper dosage for a child’s prescription medication. There, the supreme court proclaimed:

The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Youn v. Maritime Overseas Corp., 628 So.2d 1257, 1260 (La.1993).

Wainwright, 774 So.2d at 74. Later in that same decision, however, the Wainwright court went on to synthesize a general rule of application for reviewing damage awards: “[W]hat the courts of appeal have done in cases such as this one is correct jury verdicts that were illogical and inconsistent ... Effectively, then, the ultimate question has been whether the factfinder made inconsistent awards and thus abused its discretion.” Id. at 75.

Here, the record indicates that as a consequence of the accident Mr. Beard has suffered severe back pain in the past, and because the circumstances of the injury preclude the alleviation of this pain through surgical repair, Mr. Beard will continue to endure such pain and suffering in the future. As evidenced by the damages awarded for past and future medical expenses and economic loss, the jury believed Mr. Beard’s continuing back pain to be severe enough not only to prevent him from working but also to necessitate additional medical treatment, yet the damages that the jury chose to award Mr. Beard for pain and suffering represent less than one-sixth of the total damages awarded. In light of such evidence, we agree with the trial court in concluding that the jury’s verdict regarding past and future pain, suffering, and mental anguish was illogieally and inconsistently low, and, accordingly, we affirm the trial court’s grant for JNOV regarding these damages.

I ^ASSIGNMENT OF ERROR # 4:

Finally, the defendants charge as error the trial court’s award to Mr. Beard of $35,000.00 in lost earnings and $70,000.00 in future loss of earnings. The defendants contend that these awards are unsubstantiated by the facts in evidence, in that Mr. Beard’s loss of past earnings, and ostensibly his loss of future earnings, is due to factors unrelated to the accident at issue here. We disagree.

“It is well settled that in reviewing damage awards the appellate court is not to decide what it considers to be an appropriate award on the basis of the evidence, but only to review the trier of fact’s exercise of discretion.” Collins v. Natchitoches Parish Hosp., 493 So.2d 902, 903 (La.App. 3 Cir.), writ denied, 496 So.2d 1041 (La.1986). For an appellate court to disturb a trier of fact’s award of damages, the record must clearly show it abused its discretion. Coco v. Winston Indus., 341 So.2d 332 (La.1977).

“[T]he burden is on the plaintiff to prove that he has or will suffer a loss of income.” Carter v. State Farm Mut. Auto. Ins. Co., 548 So.2d 53, 55 (La.App. 3 Cir.1989). Accordingly, this court has elsewhere held that a plaintiff must prove the length of time that he missed work due to an accident in order to recover damages under this heading. Boyette v. United Serv. Auto. Ass’n, 00-1918 (La.4/3/01), 783 So.2d 1276.

Ms. Lalonde contends that the jury abused its discretion in awarding these damages, in that economic factors affecting Mr. Beard’s employer are actually to blame for Mr. Beard’s lost earnings. In support of such contention, Ms. Lalonde points to Mr. Beard’s testimony that various periods of his post-accident unemployment are attributable to the expiration of one “job” at a time when a 1 ^subsequent replacement “job” was not scheduled. We find Ms. Lalonde’s argument without merit.

While Ms. Lalonde is correct in arguing that Mr. Beard should not be compensated for earnings lost to temporary work shortages rather than due to the accident at issue, it does not appear that the jury calculated Mr. Beard’s damages improperly. The wage information presented in this case established that Mr. Beard earned approximately $35,000.00 annually. Thus, the jury’s $35,000.00 award in lost earnings was meant to compensate Mr. Beard for approximately one year’s worth of unemployment. Mr. Beard testified at trial that he was able to continue working after the accident until the late spring of 2005, at which point Mr. Beard was forced to decline offers for further work because he was in too much pain to perform additional “jobs.” The record further shows that Mr. Beard remained continuously unable to work from that point until the jury returned its verdict on August 25, 2006, more than one year later. Thus, we find the jury to be well within its discretion in awarding Mr. Beard the equivalent of one year’s wages in earnings lost due to the accident.

Moreover, we find that the jury acted within its discretion in awarding $70,000.00, or approximately two years’ wages, for Mr. Beard’s loss of future earnings. “Awards for lost future income are inherently speculative, and are intrinsically insusceptible of being calculated with mathematical certainty. Thus, the courts must exercise sound judicial discretion in determining these awards, and render awards which are consistent with the record and which work an injustice on neither party.” Morgan v. Willis-Knighton Med. Ctr., 456 So.2d 650, 658 (La.App. 2 Cir. 1984). As discussed above, the record indicates that Mr. Beard’s injury left him unable to work for approximately one year prior to the jury’s verdict in the case at 114bar. In light of Mr. Beard’s inability to earn income prior to the jury’s verdict, it is not unreasonably inconsistent for the jury to conclude that Mr. Beard would continue to be so disabled for some time after the trial court’s judgment. Accordingly, we affirm the trial court’s award of $70,000.00 for Mr. Beard’s loss of future earnings.

Mr. Beard asks in the alternative that this court increase the damage amount awarded to him under this heading. We must deny such request. To the extent that the lower court’s determination was within its discretion as a trier of fact and was not inconsistent with the record, we find that court’s award for loss of future earnings to be valid.

ASSIGNMENT OF ERROR # 5:

Mr. Beard argues that the trial court erred in awarding an inadequate amount of general damages and requests that this court now increase the damage award. We disagree.

As discussed above, for an appellate court to disturb a trier of fact’s award of damages, the record must clearly show that the lower court abused its discretion. Coco, 341 So.2d 332. In the instant case, we find no such abuse of discretion contained in the record, and thus we reject the validity of this assignment of error.

Mr. Beard contends that the $165,000.00 awarded to him in general damages constitutes an unreasonably insufficient sum, yet Mr. Beard’s damage award reached the amount which he now challenges only after a $135,000.00 JNOV by the trial judge. In light not only of the great deference with which this court must regard the assessment of quantum, but also of the more than 500% increase of general damages already awarded by the lower court prior to this appeal, we find little basis now for disturbing the trial court’s award as an abuse of discretion.

| ^CONCLUSION:

For the reasons set forth above, judgment of the trial court is affirmed in all respects. All costs to be taxed to the defendants/appellants, Saint Landry Parish School Board and Gloria D. Lalonde.

AFFIRMED.


author: DREW, J. BROWN, C.J.,

text:
    STATE of Louisiana, Appellee v. Thomas M. DEW, Appellant.
    No. 42,392-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 17, 2007.
    Andrew S. Vallien, Natchitoches, for Appellant.
    Don M. Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.
    Before BROWN, DREW, and MOORE, JJ.
   DREW, J.

b The defendant was charged by bill of information with DWI 4th, contrary to La. R.S. 14:98(E). The trial court, without objection from either side, charged the jury that six possible verdicts were available to them:

• Guilty of DWI 4th;
• Guilty of Attempted DWI 4th;
• Guilty of DWI 3rd;
• Guilty of DWI 2nd;
• Guilty of DWI; and
• Not guilty.

The jury returned with a verdict of attempted DWI 4th, and the trial court in due course sentenced the defendant to the maximum 15 years at hard labor. We affirm the conviction for the reasons outlined hereinafter.

Is Attempted DWI a Crime?

We believe it is. This may be the first Louisiana appeal focusing on this question as the central issue.

This finding is not inconsistent with our previous holding in State v. Sloan, 32,101 (La.App. 2 Cir. 8/18/99), 747 So.2d 101, wherein we reversed, sua sponte, a jury verdict convicting Sloan of attempted communicating false information of planned arson, La. R.S. 14:54.1 and La. R.S. 14:27. The inchoate nature of that completed crime was established by the following excerpts of language from La. R.S. 14:54.1: “conveyance, ... | ?by the use of the telephone, ... of any threat or false information knowing the same to be false, including bomb threats ... concerning an attempt or alleged attempt being made, or to be made, to commit either aggravated or simple arson.” Proof of an attempt to communicate false information constituted proof of the offense itself.

The same occurred in State v. Eames, 365 So.2d 1361 (La.1978), cited by Sloan, supra. The attempt to incite to riot was included in the definition of the crime itself.

In State v. Dumas, 96-2748 (La.App. 1 Cir. 11/7/97), 703 So.2d 112, a jury convicted Dumas of attempted DWI 4th. Dumas did not raise that issue on appeal but complained about the propriety of the predicates. The first circuit observed no error patent on the conviction of attempted DWI 4th.

Attempted DWI, while certainly a rare event, is nonetheless a possible crime. In fact, the laws of at least three states have criminalized the attempt to commit a DWI.

A Kansas statute, KS ST § 8-1567, provides, with our emphasis added:

(a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person’s blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
|s(2) the alcohol concentration in the person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.
(b) No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.

A New Hampshire statute, N.H.Rev. Stat. § 265-A:2, states, with our emphasis added:

I. No person shall drive or attempt to drive a vehicle upon any way or operate or attempt to operate an OHRV:
(a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or
(b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.
II. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug or drugs, or while such person has an alcohol concentration of 0.08 or more or in the case of persons under the age of 21, 0.02 or more.

Finally, a Vermont statute, 23 V.S.A. § 1201, reads as follows, with our emphasis added:

(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:
14(1) when the person’s alcohol concentration is 0.08 or more, or 0.02 or more if the person is operating a school bus as defined in subdivision 4(34) of this title; or
(2) when the person is under the influence of intoxicating liquor; or
(3) when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely; or
(4)when the person’s alcohol concentration is 0.04 or more if the person is operating a commercial motor vehicle as defined in subdivision 4103(4) of this title.
(b) A person who has previously been convicted of a violation of this section shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway and refuse a law enforcement officer’s reasonable request under the circumstances for an eviden-tiary test where the officer had reasonable grounds to believe the person was in violation of subsection (a) of this section.
(c) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway and be involved in an accident or collision resulting in serious bodily injury or death to another and refuse a law enforcement officer’s reasonable request under the circumstances for an evidentiary test where the officer has reasonable grounds to believe the person has any amount of alcohol in the system.
(f) For purposes of this section and section 1205 of this title, the defendant may assert as an affirmative defense that the person was not operating, attempting to operate, or in actual physical control of the vehicle because the person:
(1) had no intention of placing the vehicle in motion; and
(2) had not placed the vehicle in motion while under the influence.

In light of the instant case, the importance of these three statutes is to reflect that the legislatures of at least three states have made attempted DWI [ 5a crime. The definitions of DWI in these three statutes include attempt as a part of the offense itself. We find that it is of no moment that in Louisiana, the crime of attempted DWI requires the additional harmonization of the attempt statute, La. R.S. 14:27, with DWI, La. R.S. 14:98.

We also have no quarrel with State v. Campbell, 95-1409 (La.3/22/96), 670 So.2d 1212, which essentially held in a four to three decision, that our law cannot allow a conviction for the attempt to attempt a crime. We agree, but that is not the case here.

Our DWI statute is not unconstitutionally vague or overbroad. It does not take much imagination to envision scenarios wherein a person could attempt to drive while intoxicated. For example, a bar patron who has thrown back drink after drink may announce that he is about to drive home. The bartender warns him that he is in no condition to drive. The patron waves off the warning with the proclamation that he is certainly drunk but he drives while impaired all the time and it is not a problem. While he is struggling to get his key in the door, the police arrive, having been called by a concerned patron of the bar. Attempted DWI sounds like the right charge under this hypothetical scenario.

No objection was made to the trial court’s proposed charge, which arguably waived any objection on appeal. The trial court should have been given a chance to correct any perceived charging mistake.

DWI 4th is not a crime for which responsive verdicts are listed in La. C. Cr. P. art. 814. Louisiana C. Cr. P. art. 815, however, provides:

In all cases not provided for in Article 814, the following verdicts are responsive:
lfi(l) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and -the lesser offense a misdemeanor; or ■
(3) Not Guilty.

Our emphasis.

La. R.S. 14:27 provides in part:

(A) Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
(C) An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated • by such person in pursuance of such attempt.

Our emphasis.

This record is crystal-clear that Dew committed the crime of DWI 4th offense. No question. The .jury cut.him a huge break with this obvious compromise verdict.

A jury should be allowed to compromise on any of the possible verdicts included in the charge delivered by the trial court, so long as there is ample proof of the actual offense charged. The jury here showed Dew mercy in an unusual finding. .Just because the verdict is unusual and undeserved, however, does not mean that the verdict is illegal.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

BROWN, C.J., dissents with written reasons.

BROWN, C.J.,

dissenting.

hThe instant case is unusual in that the jury convicted defendant not as charged but of attempt to operate a vehicle while intoxicated, fourth offense. This is a case of first impression. There is only one reported case of a defendant charged with DWI being convicted of attempted DWI, State v. Dumas, 96-2748 (La.App. 1st Cir.11/07/97), 703 So.2d 112, and in that case, the defendant did not complain of any irregularity relating to the offense itself. There are no cases in which a defendant was charged with attempted DWI. We simply have no jurisprudential history in Louisiana to assist us in answering whether attempted DWI is a crime.

A recitation of the facts is necessary. Shortly after 11:00 a.m. on November 9, 2005, defendant was observed speeding (85 m.p.h.) northbound on U.S. Hwy. 171 in DeSoto Parish, Louisiana. A state police trooper clocked defendant’s speed on radar. The trooper noted that defendant smelled slightly of alcohol, somewhat failed nystagmus and field sobriety tests, and at 12:12 p.m. registered a blood alcohol level of 0.07 grams/percent. The state established defendant’s prior convictions for DWI.

In the instant case, defendant concedes his operation of the vehicle, but he denies impairment. He argues that because his blood alcohol level was .07% that the jury did not conclude that he was intoxicated but, following the judge’s instructions, found him guilty of attempt. The state argues that but for the attempt instructions the jury would have found defendant guilty as charged.

12The crime of DWI has two essential elements. First, the offender must be operating a vehicle and second, the operation must occur while the offender is intoxicated (as defined by statute). La. R.S. 14:98. DWI is a general intent crime: if one is operating a vehicle and most importantly, if that operation occurs while one is intoxicated, culpability attaches regardless of intent. Operating a motor vehicle is not against the law; what makes it a crime is that the operation occurs while the offender is intoxicated. It is a strict liability offense in that there is no requirement for the state to prove that an offender intended to be intoxicated.

An “attempt” requires two necessary elements. La. R.S. 14:27(A). First, the defendant must have been acting with a specific intent to commit the crime (in this case, DWI), and, second, he must have engaged in an overt act which constitutes a step toward commission of that crime. La. R.S. 14:27(B) further provides that mere preparation to commit a crime shall not be sufficient to constitute an attempt. An overt act is more than mere preparation.

Legislative Policy

As stated, DWI does not require an intent to violate the law. An attempt, however, always requires a specific intent to commit the crime. One cannot consciously intend to commit criminal negligence.

Un La. C. Cr. P. article 814, the legislature listed the only responsive verdicts for certain offenses. An “attempt” is not included as a responsive verdict for negligent homicide, vehicular homicide, vehicular negligent injury and first degree vehicular negligent injury. Significantly, vehicular negligent injury and first degree vehicular negligent injury are DWI offenses causing injury or serious injury. Thus, DWI is listed as a responsive verdict for both, but “attempted” DWI is not.

In addressing the social problem of drunk driving, the legislature enacted carefully crafted integrated statutes. These statutes prohibit certain unintended conduct. The legislature did not contemplate a separate offense for an “attempted” DWI.

Operating a Vehicle

An attempt requires an overt act. Mere preparation is not sufficient. In State v. Pooler, 96-1794 (La.App. 1st Cir.05/09/97), 696 So.2d 22, 45-16, writ denied, 97-1470 (La.11/14/97), 703 So.2d 1288, the court stated:

A mere statement of an intent to commit a crime does not become a criminal attempt or a conspiracy unless it is accompanied by some overt act. LSA-R.S. 14:26, 14:27. Criminal conspiracy or attempt requires that, in addition to the agreement to commit a crime, one or more of the parties must do something in furtherance of that agreement.

See also State v. Baxley, 93-2159 (La.02/28/94), 633 So.2d 142.

The breadth and scope of the word “operating” would subsume the overt act essential for “attempt.” “Operation” does not require movement or |4that the act have any effect on the engine. It is sufficient that the offender exercised some control or manipulation over the vehicle.

While Intoxicated

The majority opinion focuses its analysis on an attempt to operate a vehicle and ignores the question of intoxication. If attempt applies to the impairment element then a person who drinks and drives could arguably be convicted of an attempt to drive while intoxicated even if not impaired or intoxicated. For example, this would include a person who consumes a beer or glass of wine in a restaurant and then drives home. Such an interpretation is overbroad. In DWI offenses, the legislature has drawn impairment/intoxication as the line between criminal and non-criminal behavior. To criminally charge someone with attempted DWI who is not intoxicated crosses the line.

Error Patent

The majority opines that because no objection was made to the jury instructions, the jury could return any verdict permitted by the trial court, even if it is not an offense or a lesser offense. When the offense of which defendant has been convicted is not an offense or even a lesser included offense of the crime charged, the trial court has no jurisdiction to enter a judgment of conviction for that non-offense. In exactly that situation, our supreme court has found error patent in a conviction for attempted jury tampering. See State v. Campbell, 95-1409 (La.03/22/96), 670 So.2d 1212.

| ¿Conclusion

Under these circumstances, the trial court improperly instructed the jury on attempt and erred in listing attempted DWI, fourth offense, as a responsive verdict. There is no double jeopardy bar to defendant’s retrial after being convicted of a non-crime. See State v. Mayeux, 498 So.2d 701 (La.1986); State v. Anta, 01-1512 (La.App. 4th Cir.02/27/02), 811 So.2d 1146; State v. Nazar, 96-0175 (La.App. 4th Cir.05/22/96), 675 So.2d 780. I would reverse defendant’s conviction and sentence and remand the matter to the trial court for a new trial.

      . It is arguable that if attempted DWI is possible at all, the jury should also have been informed that they could return with these additional verdicts: attempted DWI 3rd, attempted DWI 2nd, and attempted DWI. Another argument would be that the jury should never have been charged with the possibility of coming back with any of the attempts. Regardless, if the defendant had a problem with the charge, he should have made an objection for the record.

      . Inciting to riot is the endeavor by any person to incite or procure any other person to create or participate in a riot. La. R.S. 14:329.2. (Emphasis added).

      . Of course, we do not know which assumption is valid. Clearly, the state should have objected to the instruction on attempt. Thereafter, had the trial court refused to give such an attempt instruction, I suggest that defendant would have been convicted as charged, and this court would have affirmed said conviction.

      . La. R.S. 14:12 provides that criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

      . As noted by the majority opinion some states have explicitly included attempted DWI in the definition of DWI. Obviously, this was not contemplated in Louisiana’s detailed statutory scheme. The highest court of states with similar statutes as Louisiana have found attempted DWI not to be a legally cognizable crime. Strong v. Texas, 87 S.W.3d 206 (Tex.App.-Dallas 2002, pet. ref'd.); People v. Prescott, 95 N.Y.2d 655, 722 N.Y.S.2d 778, 745 N.E.2d 1000 (2001).

      . The scenario portrayed by the majority opinion involves statements of intent until the time the offender took control of the vehicle.