author: PARRO, J. KUHN, J.,

text:
    Carl HOOD v. Mark M. COTTER, M.D.
    No. 2006 CA 1390.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2007.
    Writ Granted April 18, 2008.

      Normand F. Pizza, Milling Benson Woodward L.L.P., New Orleans, LA, for Defendantr-Appellant, Louisiana Medical Malpractice Insurance Co.
    David A. Woolridge, Jr., Larry M. Roe-del, Roedel, Parsons, Koch, Blache, Bal-hoff & MeCollister, A.L.C., Baton Rouge, LA, for Intervenor-Appellee, Louisiana Patient’s Compensation Fund Oversight Board.
    Before CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDonald, McClendon, hughes, and WELCH, JJ.
   PARRO, J.

|2A medical malpractice insurer appeals from the portion of a district court judgment that granted an intervener’s motion for summary judgment on an insurance-type coverage issue. For the following reasons, the judgment of the district court is reversed in part and affirmed in part, and this matter is remanded.

Factual Background and Procedural History

Louisiana Medical Malpractice Insurance Company (LAMMICO) provided a claims-made insurance policy to Dr. Mark M. Cotter for the period January 1, 2003, through January 1, 2004. Dr. Cotter also had concurrent claims-made coverage with the Louisiana Patient’s Compensation Fund (PCF) during this period. The alleged acts of malpractice toward' Carl Hood (Hood) occurred in April 2003 through September 5, 2003. Dr. Cotter voluntarily surrendered his. medical license on December 17, 2003, and did not purchase an extended reporting endorsement (tail coverage) from LAMMICO.

Hood filed a complaint with the PCF in February 2004, seeking the appointment of a medical review panel in connection with alleged acts of malpractice that occurred during the policy period. Initially, the PCF notified Hood that Dr. Cotter was a qualified health care provider. However, the PCF subsequently informed Hood that Dr. Cotter did not meet the qualification requirements. Hood then filed suit in district court against Dr. Cotter on April 29, 2004. On February 15, 2005, Hood filed an amending and supplemental petition that added LAMMICO as a co-defendant. LAMMICO then filed an answer and an exception urging the objection of no cause of action based on the fact that Hood’s claim had been made after the expiration of the policy period. The PCF Oversight Board (Board) filed a petition of intervention, averring that Dr.. Cotter |swas not at all pertinent times a qualified and enrolled member of the PCF in that he had failed to renew his LAMMICO insurance policy, failed to purchase tail coverage from LAMMICO, and failed to renew his PCF coverage.

Subsequently, LAMMICO filed a motion for a summary judgment, asserting that Dr. Cotter did not have coverage with it for Hood’s claim. The alleged lack of coverage was due to Dr. Cotter’s failure to honor the conditions of the LAMMICO policy when he surrendered his license, resulting in the termination of the policy, failed to purchase the tail coverage offered by LAMMICO, and failed to qualify under the Louisiana Medical Malpractice Act. LAMMICO’s motion also urged that Hood’s claim against LAMMICO was filed after the prescriptive period provided for by LSA-R.S. 9:5628. The Board also filed a motion for a summary judgment in which it maintained that Dr. Cotter was not a qualified health care provider when Hood filed his claim, because at that time Dr. Cotter did not have underlying liability coverage and the PCF surcharge had not been paid by or on behalf of Dr. Cotter:

The Board’s motion for summary judgment was granted, and LAMMICO’s motion was denied. Pursuant to an interim order of this court, the district court judgment was subsequently amended to declare that there was no PCF coverage for the claim made by Hood against Dr. Cotter and to dismiss the Board from the suit with prejudice. LAMMICO’s appeal from that portion of the judgment granting the Board’s motion for a summary judgment is currently before this court. On appeal, LAMMICO urged that the district court erred in: (1) finding that there was no PCF coverage for Hood’s claims, (2) finding LAMMICO provided coverage for Hood’s claims, (3) exposing LAMMICO to liability not covered by the policy or contemplated by the parties in derogation of jurisprudence and public policy, and (4) applying contrary standards in determining if there is coverage by LAMMICO and the PCF.

| ¿Denial of Motion for a Summary Judgment

In its appeal of the district court’s granting of the Board’s motion for a summary judgment on the issue of PCF coverage, LAMMICO challenges the district court’s denial of its motion for a summary judgment on the issue of coverage under the LAMMICO policy. The denial of a motion for a summary judgment is an interlocutory judgment that is not susceptible to being certified by a trial court as final for purposes of immediate appeal under LSA-C.C.P. art. 1915. See Young v. City of Plaquemine, 04-2305 (La.App. 1st Cir.11/4/05), 927 So.2d 408; Belanger v. Gabriel Chemicals. Inc., 00-0747 (La.App. 1st Cir.5/23/01), 787 So.2d 559, unit denied, 01-2289 (La.11/16/01), 802 So.2d 612. A party’s method of review of the denial of a motion for a summary judgment is either on review of an unrestricted final judgment or by an application for supervisory writs. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him in addition to the review of the final judgment being appealed. Judson v. Davis, 04-1699 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1112, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167; In re T.A.S., 04-1612 (La.App. 1st Cir.10/29/04), 897 So.2d 136, 139; see Young, 927 So.2d 408. Arguably, the present appeal is restricted to the issue of PCF’s coverage for the claims filed by Hood.

Nonetheless,'this court has allowed review of the denial of a motion for a summary judgment filed by the appellant in conjunction with its review of the granting of a motion for a summary judgment against the appellant where the issues involved were identical. Dean v. Griffin Crane & Steel, Inc., 05-1226 (La.App. 1st Cir.5/5/06), 935 So.2d 186, unit denied, 06-1334 (La.9/22/06), 937 So.2d 387 (the resolution of both motions involved a determination of the third-party plaintiffs right to contractual indemnification by the third-party defendants); see Louisiana Power and Light Co. v. Slaughter, 04-2361 (La. App. 1st Cir.11/4/05), 917 So.2d 532, 536, writ denied, 06-0217 (La.4/24/06), 926 So.2d 550; Campbell v. Market American Ins. Co., 00-1448 (La.App. 1st Cir.9/21/01), 822 So.2d 617, 619-20, writ denied, 01-2813 (La.1/14/02), 805 So.2d 204. In the instant case, the issues involved in the granting of a summary | ¿judgment in the Board’s favor are directly related to the issues presented by LAMMICO’s motion for a summary judgment. Therefore, we will consider them to be directly related to the final judgment that granted the Board’s motion for summary judgment. See Bennett v. Krupkin, 00-0023 (La.App. 1st Cir.3/28/02), 814 So.2d 681, 685, writ denied, 02-1208 (La.6/21/02), 819 So.2d 338; Hedgepeth v. Guerin, 96-1044 (La.App. 1st Cir.3/27/97), 691 So.2d 1355, writ denied, 97-1377 (La.9/26/97), 701 So.2d 983. Accordingly, we find that a review of the issue of LAMMICO’s coverage in connection with the instant appeal is appropriate.

LAMMICO’s Coverage

Pertinent to our resolution of the issue of LAMMICO’s coverage is the case of Hedgepeth, 691 So.2d 1355.' The policy in question in Hedgepeth limited the malpractice insurer’s coverage to those claims occurring and first made during the policy period. By policy definition, a claim was first made either when the insured first gave written notice to the insurer that a claim had been made or when the insured first gave written notice to the insurer of specific circumstances involving a particular person which may result in a claim. The medical procedure giving rise to plaintiffs’ malpractice action in Hedgepeth occurred in October 1985, which was clearly while the policy was in force. The plaintiffs’ claim for medical malpractice was initiated on July 23, 1986, against the health care provider and the insurer, and reported to the insurer on August 7, 1986, which dates were outside the policy period. These facts served as the basis for the insurer’s motion for summary judgment on the issue of coverage, which was denied by the trial court. Following a trial on the merits, the trial court awarded damages to the plaintiffs against the insurer despite the lack of evidence that the insured had complied with the notice provision of the insurance contract. The insurer appealed contending, that the trial court erred in ignoring. the unambiguous terms of the “claims made” policy regarding notice. This court agreed. Since the claim in Hedgepeth had not been “first made” during the policy period, this court found that under the language of the liability policy, there was no coverage. Hedgepeth, 691 So.2d at 1359. However, because, under the facts of Hedgepeth, the policy provision ^effectively reduced the prescriptive period for making a claim against the insurer to less than the statutorily mandated period of LSA-R.S. 22:629, LSA-R.S. 9:5628(A), and LSA-R.S. 40:1299.45, the provision was found to be in violation of the statutory law that prohibits the limiting of a right of action against an insurer to less than one year. Hedgepeth, 691 So.2d at 1364.

Accordingly, those portions of the insurer’s “claims made” policy in Hedge-peth, limiting the liability of the insurer to those claims which occurred and were reported while the policy was in force, were found to be unenforceable and without effect with respect to those acts of malpractice that occurred during the policy period for which a claim was filed within one year from accrual of the cause of action and were reported to the insurer within one year from accrual of the cause of action. Hedgepeth, 691 So.2d at 1364.

|7The facts of this case are similar to those of Hedgepeth in that the alleged acts giving rise to Hood’s malpractice action occurred in April 2003 through September 5, 2003, which was clearly while the policy was in force. Hood’s claim for medical malpractice was initiated against Dr. Cotter on April 29, 2004, and against LAMMI-CO on February 15, 2005, which dates were outside the policy period.

Notably, although Hood’s claim against Dr. Cotter was filed within one year from the accrual of the cause of action, as in Hedgepeth, LAMMICO was not added as a defendant in that proceeding until more than one year from the date of the acts giving rise to the medical malpractice action. Hood urged that the timely filing of suit against Dr. Cotter, who allegedly was solidarity liable with LAMMICO, was sufficient to satisfy the requirements of Hed-gepeth relative to the filing of the claim against LAMMICO within one year from the accrual of the cause of action.

He who conspires with another person to commit an intentional or willful act is answerable in solido with that person for the damage caused by such act. LSA-C.C. art. 2324(A). If liability is not soli-dary pursuant to LSA-C.C. art. 2324(A), then liability for damages caused by two or more persons shall be a joint and divisible obligation. LSA-C.C. art. 2324(B). Therefore, Hood’s assertion that Dr. Cotter and LAMMICO are solidary obligors is inaccurate. Nonetheless, the interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. LSA-C.C. art. 2324(C). Accordingly, the timely filing of Hood’s cause of action against Dr. Cotter would also serve as the basis for the timely filing of his cause of action against someone who is jointly liable with Dr. Cotter, such as LAMMICO.

^Because the policy provision at issue in this case effectively reduced the prescriptive period for making a claim against LAMMICO to less than the statutorily-mandated period, the policy provision is in violation of the statutory law that prohibits the limiting of a right of action against an insurer to less than one year. See Hedgepeth, 691 So.2d at 1364. Under the rationale of Hedgepeth, that portion of LAM-MICO’s claims-made policy which limited its liability to those claims that occurred and were reported while the policy was in force, is unenforceable and without effect as to those acts of malpractice that occurred during the policy period for which a claim was filed within one year from accrual of the cause of action and was also reported to the insurer within such time. Therefore, the trial court correctly determined that the LAMMICO policy afforded coverage for Hood’s claims.

Qualification of a Health Care Provider

The Louisiana Medical Malpractice Act (MMA), LSA-R.S. 40:1299.41 et seq., confers upon qualified health care providers two major advantages in actions against them for malpractice. Bennett, 814 So.2d at 685. First, the liability of a qualified health care provider for all injuries or death for any one patient may not exceed $100,000, and the total amount recoverable from all defendants (including the PCF) for all malpractice claims for injuries or death for any one patient, exclusive of future medical care and related benefits, may not exceed $500,000, plus interest and costs. LSA-R.S. 40:1299.42(B). Second, no action for malpractice against a qualified health care provider or his insurer may be commenced in a court of law before the complaint has been presented to a medical review panel and the panel has rendered its expert opinion on the merits of the complaint, unless the parties agree to waive this requirement. LSA-R.S. 40:1299.47(A); Bennett, 814 So.2d at 685.

Health care providers may take advantage of these benefits only if they “qualify” and only for as long as they remain qualified under the MMA by meeting the statutory requirements of LSA-R.S. 40:1299.42(A), which provides:

|9To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to La. R.S. 40:1299.44.
(3) For self insureds, qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.

In O’Bryan v. Louisiana Patient’s Compensation Fund Oversight Board, 01-0728 (La.App. 1st Cir.11/8/02), 832 So.2d 438, a health care provider, Dr. Michael O’Bryan, filed an action for declaratory judgment against the Board concerning his obligation to post financial security to be insured under the PCF. Before he became self insured, Dr. O’Bryan was insured pursuant to a claims-made policy. Citing Abate v. Healthcare International, Inc., 560 So.2d 812, 817 (La.1990), this court in O’Bryan noted that any lapse in the malpractice liability insurance policy filed as proof of financial responsibility, through either its effective period or its form (occurrence or claims-made), rendered the health care provider unqualified during the period of the lapse. O’Bryan, 832 So.2d at 442. Thus, to be qualified, Dr. O’Bryan must have paid the proper surcharge and filed the proper proof of financial responsibility with the Board both on the date of the alleged malpractice and on the date that the claim was filed. O’Bryan, 832 So.2d at 444.

In addressing whether Dr. O’Bryan was a qualified health care provider on the date that the claim was filed, this court noted that if a health care provider chose not to obtain an extended reporting endorsement (tail coverage), then, relative to his claims-made policy for which a claim was made after he qualified as a self-insured for acts that occurred when the health care provider was qualified under a claims-made policy, the health care provider would not be covered under the MMA for that claim. This ruling was based on the health care provider’s inability to satisfy the financial responsibility |inprong of LSA-R.S. 40:1299.42(A). O’Bryan, 832 So.2d at 444.

The O’Bryan case does not reference this court’s decision in Hedgepeth. Therefore, we assume that in arriving at its decision in O’Bryan, this court was not asked to consider the impact of the timely filing of a claim by a patient under LSA-R.S. 22:629, LSA-R.S. 9:5628(A), and LSA-R.S. 40:1299.45 after the termination of the claims-made policy as in Hedgepeth. Therefore, under the facts of this case, we do not find the holding in O’Bryan to be dispositive of the issue of coverage by the PCF. Since such an issue resulting from our holding in Hedgepeth was addressed by this court in Bennett, 814 So.2d 681, we find it helpful in our consideration of the instant case to review the facts and holdings of the Bennett case.

In Bennett, the plaintiffs filed a medical malpractice suit in district court against Dr. Robert Krupkin and his insurer, St. Paul Fire & Marine Insurance Company (St. Paul). Dr. Krupkin filed an exception raising the objection of prematurity, contending that he was a qualified health care provider under the MMA and that, as such, plaintiffs were required to first present their claim to a medical review panel. See LSA-R.S. 40:1299.47. The Board filed a petition of intervention, seeking a determination of whether Dr. Krupkin was enrolled as a member of the PCF pursuant to the MMA. The Board urged that Dr. Krupkin was not a qualified health care provider because, although he had paid the appropriate surcharge to the PCF for the period encompassing the date of the alleged malpractice, he had failed to pay a surcharge to the PCF for the period encompassing the date the claim had been filed as required by LSA-R.S. 40:1299.42(A). Bennett, 814 So.2d at 683-84. Subsequently, St. Paul filed a motion for a summary judgment, contending that it did not provide coverage to Dr. Krupkin for that claim since Dr. Krupkin had not renewed his claims-made policy, which had lapsed, and he had failed to purchase an optional reporting endorsement to extend that coverage. Accordingly, St. Paul contended that there was no continuing coverage as of the date the plaintiffs filed their initial complaint against Dr. Krupkin in accordance with LSA-R.S. 40:1299.47, seeking to have their complaint submitted to a medical review panel. Bennett, 814 So.2d at 684.

| n Subsequently, the plaintiffs in Bennett filed a motion for a partial summary judgment on the issue of coverage under the St. Paul policy relying on Hedgepeth, 691 So.2d 1355. A third motion for a summary judgment was filed in which the Board sought a determination that Dr. Krupkin was not a qualified health care provider under the MMA because Dr. Krupkin had failed to pay a surcharge deemed due by the Board as applicable to the extended claim period resulting from our holding in Hedgepeth. Bennett, 814 So.2d at 684.

After denying St. Paul’s motion for a summary judgment in Bennett, the trial court held a hearing on the motions for summary judgment that had been filed by the plaintiffs and the Board, as well as Dr. Krupkin’s objection of prematurity. In separate judgments, the trial court (1) granted a final partial summary judgment in favor of the plaintiffs, ruling that the St. Paul policy provided coverage for this alleged act of malpractice, (2) denied the Board’s motion for summary judgment, and (3) sustained Dr. Krupkin’s exception and dismissed him from the suit without prejudice, finding that Dr. Krupkin was a qualified health care provider under the MMA. Bennett, 814 So.2d at 684. Two appeals followed — one by St. Paul and the other by the Board.

St. Paul appealed the trial court’s partial final judgment granting the plaintiffs’ motion for summary judgment. This court affirmed the trial court’s judgment on the issue of coverage under the St. Paul policy. Bennett v. Krupkin, 99-2702 (La.App. 1st Cir.12/22/00), 779 So.2d 923. Once the supreme court denied writs, the judgment finding that Dr. Krupkin was covered by the St. Paul policy at the time the plaintiffs filed their claim became a final judgment. Bennett v. Krupkin, 01-0193 (La.3/30/01), 788 So.2d 1190.

The Board’s appeal in Bennett challenged the judgment sustaining Dr. Krup-kin’s [^exception. This court in Bennett, 814 So.2d 681, recognized that Dr. Krupkin was qualified under the MMA prior to and at the time of the alleged malpractice — he had purchased a policy of insurance from St. Paul, and St. Paul had collected and remitted to the PCF the surcharge associated with that policy. Recognizing that there had been a final determination that coverage under the St. Paul policy remained in effect through the time when the plaintiffs filed their claim, this court found that the St. Paul policy period and attendant PCF coverage, for which Dr. Krupkin had previously paid, provided protection to him for a “legally-governed period of time” encompassing the plaintiffs’ claim. Bennett, 814 So.2d at 687. Accordingly, this court in Bennett found that Dr. Krupkin was a qualified health care provider under the MMA with respect to the plaintiffs’ claim; thus, the exception raising the objection of prematurity was properly sustained. Bennett, 814 So.2d at 688.

The facts of the instant case parallel those of Bennett in that Hood filed a medical malpractice suit in district court against Dr. Cotter, who, like Dr. Krup-kin, had not renewed his “claims-made” policy, which had lapsed, and who had failed to purchase an optional reporting endorsement to extend that coverage. Although LAMMICO had paid the appropriate surcharge to the PCF on behalf of Dr. Cotter for the |13period encompassing the date of the alleged malpractice, LAMMI-CO failed to pay a surcharge to the PCF for the period encompassing the date Hood’s claims were filed as required by LSA-R.S. 40:1299.42(A). In the instant case, LAMMICO, like St. Paul, sought a summary judgment on the issue of coverage under its policy. In both, the Board intervened in the district court proceeding and sought a determination by way of a motion for a summary judgment of whether the health care provider was qualified under the MMA.

In Bennett, although raised by St. Paul in its motion for summary judgment, the issue of St. Paul’s coverage was determined by a partial final judgment which granted the plaintiffs’ motion for a summary judgment based on a finding that the St. Paul policy provided coverage for the alleged act- of malpractice. The same conclusion was effectively reached as to coverage by LAMMICO’s policy in .the instant case by virtue of an interlocutory judgment which denied LAMMICO’s motion for a summary judgment.

As to the issue of PCF coverage, the district court in Bennett found that Dr. Krupkin was a qualified health care provider under the MMA and denied the Board’s motion for a summary judgment, while sustaining Dr. Krupkin’s exception pleading the objection of prematurity. In the instant ease, a contrary decision was reached by the district court based on a finding that the PCF did not afford coverage for Hood’s claims.

In reviewing the district court’s decision to sustain Dr. Krupkin’s exception regarding prematurity, this court in Bennett, after considering the coverage afforded by the St. Paul policy, found that Dr. Krupkin was covered by the MMA as a qualified health care provider at the time the plaintiffs instituted their claim. Bennett, 814 So.2d at 688. That determination was based on a finding that once a health care provider had qualified under the MMA, the health care provider’s qualification under the MMA was concurrent with the coverage under the underlying insurance policy. Bennett, 814 |14 So.2d at 686-87; see LSA-R.S. 40:1299.42(E)(1); see also LAC 37:III.905. Although the merits of the district court’s ruling on the issue of LAMMICO’s coverage was considered in this appeal, a- final definitive judgment on this issue is lacking.

Applying the rationale of Bennett, which this court is constrained to follow, we conclude that it is impossible to determine at this time whether Dr. Cotter was qualified as a health care provider under the MMA, as such qualification is concurrent with the coverage under the- underlying insurance policy issued by LAMMICO. , See Bennett, 814 So.2d at 686-87; LSA-R.S. 40:1299.42(E)(1); see also LAC 37:111.905. Therefore, the district court improperly rendered a summary judgment in favor of the Board.

Decree

For the foregoing reasons, those portions of the district court’s amended judgment granting the Board’s motion for summary judgment, decreeing that there was no PCF coverage for the claims- made by Hood against Dr. Cotter, and dismissing the Board from the suit relative to LAM-MICO are reversed. That portion of the judgment denying LAMMICO’s motion for a summary judgment is affirmed. This matter is remanded for further proceedings consistent with this opinion. Costs of this appeal in the amount of $686.46 are assessed to the Louisiana Patient’s Compensation Fund Oversight Board.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

McDONALD, J., dissents for reasons assigned by Judge KUHN.

KUHN, J., dissents and assigns reasons.

McCLENDON, J., voluntarily recused.

KUHN, J.,

dissenting.

hi disagree with the majority’s conclusion that Louisiana Medical Malpractice Insurance Company (“LAMMICO”) provided coverage for Carl Hood’s claims against Mark M. Cotter, M.D., or that the record fails to establish that the former healthcare provider was not a qualified provider under the Louisiana Medical Malpractice Act (MMA). I would reverse the trial court’s denial of LAMMICO’s motion for summary judgment.

The majority relies on Hedgepeth v. Guerin, 96-1044 (La.App. 1st Cir.3/27/99), 691 So.2d 1355, to conclude that the claims-made policy issued by LAMMICO to Cotter is unenforceable and without effect because it violates La. R.S. 22:629A(3), R.S. 9:5628A, and R.S. 40:1299.45. The Hedgepeth court reasoned:

These statutes guarantee a medical malpractice claimant a period of not less than one year within which to institute a claim against a health care provider and/or his insurer. However, a “claims made” policy, requiring that a claim be made within the policy period, may effectively reduce the time period within which a medical malpractice claimant may institute his action against the insurer.

I disagree with an application of this rationale under the facts of this case.

According to La. R.S. 22:629A(3):

pNo insurance contract delivered or issued for delivery in this state ... shall contain any condition, stipulation, or agreement ... [ljimiting right of action against the insurer ... to a period of less than one year from the time when the cause of action accrues in connection with all other insurances unless otherwise specifically provided in this Code. (Emphasis added.)

The record establishes that tail coverage was offered by LAMMICO to Cotter to insure any claims against him that arose after the expiration of the claims-made policy term. Cotter chose not to purchase this insurance coverage. Thus, under the plain language of La. R.S. 22:629A(3), the insurance contract LAMMICO delivered to Cotter did not contain a condition that limited a potential right of action against the insurer to a period of less than one year from the time when the cause of action accrued in connection with all other insurances. Cotter could have purchased tail coverage, but chose not to. Therefore, in connection with all other insurances that LAMMICO made available to Cotter in conjunction with the insuring of the risks associated with malpractice, LAMMICO did not deliver an insurance contract that contained a condition, stipulation, or agreement limiting Hood’s right of action against the insurer to a period of less than one year from the time which, according to the allegations of his petition, the canse of action would have accrued.

Nothing in the facts of Hedgepeth suggests that the insurer, Pacific Insurance Company (Pacific), made tail coverage available to its insured, Dr. Guerin. Indeed, it was Pacific who cancelled the medical malpractice claims-made policy. Thus, it appears that, unlike the policy delivered by LAMMICO, Hedgepeth truly involved a situation which “in connection with all other insurances,” the policy delivered to Dr. Guerin effectively limited Julia Hedge-peth’s claim for malpractice to a period of less than one year from the time her cause of action accrued. Therefore, Hedgepeth is ^factually distinguishable and not controlling under the facts of the case before us.

Moreover, the Direct Action statute, see La. R.S. 22:655B(1), does not preclude summary judgment in favor of LAMMI-CO. The Direct Action statute, which provides an injured person, at his option, to have a right of direct action against the insurer of a tortfeasor, expressly limits that action “within the terms and limits of the policy.” Thus, any liability LAMMI-CO may have had as a matter of the insurance contract, and any right of direct action against LAMMICO that Hood may have had pursuant to the Direct Action statute, ended on January 1, 2004, when the terms and limits of the claims-made policy that Cotter chose to purchase terminated. LAMMICO — whose potential liability to Hood would have arisen as a matter contract, i.e., the policy of insurance it issued to the alleged tortfeasor— did not cause the damages Hood incurred and, therefore, is not a “joint tortfeasor” with Cotter as the majority holds. See La. C.C. art. 2324C.

This court should overrule its opinion in Bennett v. Krupkin, 99-2702 (La.App. 1st Cir.12/22/00), 779 So.2d 923, insofar as it holds that a claims-made policy is unenforceable and without effect because it violates La. R.S. 22:629A(3), R.S. 9:5628A, and R.S. 40:1299.45 when the insurer has clearly made tail coverage available but the insured chose not to purchase it. When an insurer has delivered a policy allowing the insured to purchase tail coverage, and the insured chooses not to, opting instead to assume the risk of any claims against him made after the expiration of the claims-made policy term, La. R.S. 22:629A(3) has not been violated.

For these reasons, there is no coverage under the claims-made policy Cotter elected to purchase from LAMMICO, and the former health care provider is no longer qualified under the MMA at the time Hood instituted |4his lawsuit. See La. R.S. 40:1299.42E(1) and LAC 37:III.905A. I believe the trial court’s denial of LAMMI-CO’s motion for summary judgment should be reversed and, like the PCF Oversight Board, the insurer should be dismissed from this lawsuit. Accordingly, I dissent.

      . Under a "claims-made” policy, coverage is effective only if the negligent harm is discovered and reported within the policy .term. This is contrasted with an "occurrence” policy, where the coverage is effective if the negligent harm occurs within the policy period, regardless of the date of discovery. Hedgepeth v. Guerin, 96-1044 (La.App. 1st Cir.3/27/97), 691 So.2d 1355, 1359, writ denied, 97-1377 (La.9/26/97), 701 So.2d 983.

      . This extension, referred to as tail coverage, covers occurrences within the policy period that produce claims within the specified extended reporting period. See Anderson v. Ichinose, 98-2157 (La.9/8/99), 760 So.2d 302.

      . LAMMICO filed an application for a supervisory writ seeking review of the denial of its motion for summary judgment, which was denied. Hood v. Cotter, 06-1086 (La.App. 1st Cir.9/5/06)(unpublished writ action). The Board filed a memorandum in response to LAMMICO's writ application urging this court to grant writs. LAMMICO’s writ application addressed the timeliness of Hood’s action against it.

      . We note that neither Hood nor Dr. Cotter appealed from the judgment that ordered the Board's dismissal from Hood's suit.

      . After Hedgepeth, the Louisiana Supreme Court decided Anderson v. Ichinose, 98-2157 (La.9/8/99), 760 So.2d 302. In a claims-made policy, the claim “is the event and peril being insured and subject to policy language, regardless of when the occurrence took place.” Anderson, 760 So.2d at 305. Unless there is a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions on the policy obligations they contractually assume. Id. at 306. The right given to a plaintiff by the Direct Action Statute is "the right to sue the insurer directly when the liability policy covers a certain risk.” Id. at 307. The supreme court found that under the circumstances of Anderson, the Direct Action Statute did not extend any greater right to third-party tort victims who were damaged b.y the insured. Id. Therefore, the provisions of the claims-made policy did not violate the Direct Action Statute. Id'.

        Anderson's holding was limited to the facts of that case and only discussed an alleged violation of the Insurance Code as it related to the Direct Action Statute. In Anderson, the supreme court did not cite, discuss, overrule, or distinguish this court’s decision in Hedge-peth. Following Anderson, this court in Bennett v. Krupkin, 99-2702 (La.App. 1st Cir. 12/22/00), 779 So.2d 923, writ denied, 01-0193 (La.3/20/01); 788 So.2d 1190, again examined a claims-made policy provision that allegedly violated LSA-R.S. 22:629. Bennett, 779 So.2d at 923. A plaintiff in Bennett found out that her doctor allegedly misdiagnosed her breast cancer on October 25, 1996. The doctor had a claims-made policy that "covered only claims which were made during the policy period and arose from events which occurred during the retroactive period covered by the policy.” Id. at 924. The policy was in effect at the time of the misdiagnosis but not at the time the claim was made. Id. at 925. Premiums -were paid on the policy through January 15, 1997. On the face of the policy, the doctor was not covered for the plaintiffs’ claims because the policy provision required that the Bennetts' claims be made prior to January 15, 1997. Id. at 925. This court found that the Bennetts’ filing of their claims with the Commissioner of Insurance on March 20, 1997, and their suit less than one month later were well within the one year time frame envisioned by LSA-R.S. 22:629. Bennett, 779 So.2d at 926. Thus, this court found that the trial court. correctly applied this court's decision in Hedgepeth to the Bennett facts and properly granted summary judgment in favor of the Bennetts, stating:
      Under the undisputed facts of this case, the instant policy provision likewise effectively reduces the prescriptive period such that the Bennetts effectively had less than one year from the date of the accrual of their cause of action to commence the action against St. Paul. Because "[tjhis would be a clear violation of the statutory law, which prohibits limiting a right of action against an insurer to less than one year,” Hedgepeth, 96-1044 at p. 14, 691 So.2d at 1364, the district court properly granted summary judgment in favor of the Bennetts on the issue of coverage in this case.

        Bennett, 779 So.2d at 926. This court found the facts of Bennett to be "highly distinguishable” from those of the Anderson case. This court interpreted the cause of action in Anderson as accruing after the policy period expired on October 25, 1996, the date that the plaintiff found out that the earlier biopsy had been incorrectly reported, instead of the date of the original misdiagnosis. Bennett, 779 So.2d at 925. The facts of Bennett were found to be distinguishable in that the Ben-netts’ cause of action accrued while the policy was in effect, as opposed to after the policy expired.

      . An injured person, at his option, shall have a right of direct action against the insurer within the terms and limits of the policy. Such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido. LSA-R.S. 22:655(B)(1).

      . We note that LAMMICO’s extended coverage resulting from our holding in Hedgepeth is effective only to the extent that the alleged acts of malpractice occurred, or the cause of action accrued, within the one-year period prior to April 29, 2004, the date Hood's suit was filed.

      . The Board's rules equate self-insurance with occurrence coverage. O'Bryan, 832 So.2d at 445.

      . As previously stated, this court in Hedgepeth held that a provision of a claims-made policy requiring that a claim be made within the policy period is without effect if it reduces the prescriptive period for making a claim against the insurer to less than one year, in violation of LSA-R.S. 22:629.

      . The appeal was dismissed. Bennett v. Krupkin, 00-0023 (La.App. 1st Cir.12/22/00) (unpublished opinion). However, the dismissal was reversed by the supreme court, and the matter was remanded to this court for consideration of the merits of the Board’s appeal. Bennett v, Krupkin, 01-0209 (La.10/16/01), 798 So.2d 940.

      . See LSA-R.S. 40:1299.44(A)(3)(b).

      . See Bennett, 788 So.2d 1190.

      . Louisiana Revised Statute 40:1299.42(E)(1), governing methods of establishing proof of financial responsibility, provides in pertinent part:
      Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with qualification under this Section taking effect and follow-mg the same form as the policy of malpractice liability insurance of the health care provider....
      Additionally, LSA-R.S. 40:1299.45(A)(1) provides that only while malpractice liability insurance remains in force are the health care provider and his insurer liable to a patient, or his representative, for malpractice to the extent and in the manner specified in the MMA. Bennett, 814 So.2d at 686. Thus, once a health care provider has qualified under the MMA, the health care provider's qualification under the MMA is concurrent with the coverage under the underlying insurance policy, i.e., qualification takes effect and follows the same form as the policy of insurance. Id. at 686-87.

      .LAMMICO was joined as a defendant in an amending petition by Hood.

      . In the instant case, Hood did not file such a motion.

      . With respect to health care providers that are qualified for enrollment with the PCF by evidence of liability insurance pursuant to LAC 37:111.505, the PCF shall be liable for compensation for claims asserted against the health care provider only within the scope of coverage afforded by, and subject to the limitations and exclusions of, the policy of professional liability insurance evidencing the health care provider’s financial responsibility, subject to the limitation of liability prescribed by the MMA. LAC 37:III.905(A).

      .In so ruling, we render no opinion as to the legal implications that the failure, of Hood and Dr. Cotter to appeal from the judgment that granted the Board’s motion for summary judgment and dismissed the Board from the suit, with prejudice, may have on the issue of the liability of the PCF.

      . See La. R.S. 40:1299.41-1299.49.

      . Despite the majority’s reversal of the trial court's grant of the PCF Oversight Board’s motion for summary judgment, that portion of the judgment was not appealed by any party and, therefore, is not properly before us.

      . When read alone, nothing in the provisions of either La. R.S. 9:5628A (which sets forth a period of time for a claimant to institute a claim against specified health care providers) or R.S. 40:1299.45 (providing for the scope of malpractice coverage necessary for participation in the MMA) guarantees a medical malpractice claimant a period of not less than one year within which to institute a claim against the insurer of a health care provider.


source: Caselaw Access Project

author: GAIDRY, J. McDONALD, J., McCLENDON, J.,

license: Public Domain

text:
    Wesley and Gwendolyn PAYNE v. Keefe HURWITZ.
    No. 2007 CA 0081.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 16, 2008.

      Michelle Mayne Davis, Mandeville, LA, for Plaintiffs/Appellees, Wesley and Gwendolyn Payne.
    Prescott L. Barfield, Covington, LA, for Defendant/Appellant, Keefe Hurwitz.
    Before GAIDRY, McDONALD, and McClendon, jj.
   GAIDRY, J.

|¡,The prospective purchasers of a home under a purchase agreement sued the prospective seller, alleging the seller’s noncompliance with the agreement and refusal to consummate the sale. The trial court rendered judgment in favor of the prospective purchasers for the return of their deposit, a contractual penalty, and attorney fees, expenses, and costs. The seller appeals and the prospective purchasers have answered his appeal, asserting error by the trial in failing to grant them specific performance. For the following reasons, we amend the judgment to grant the prospective purchasers specific performance, vacate the awards for the deposit return and contractual penalty, affirm the judgment in all other respects, and remand the case for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

The plaintiffs, Wesley Payne and Gwendolyn Payne (the Paynes), decided to purchase a smaller home, and in July 2005 began searching for one. Using the Internet, they eventually located a home for sale at 4018 Willow Lane in Madisonville, Louisiana. The owner was Keefe Hurwitz. After viewing the home, the Paynes made an offer that was acceptable to Mr. Hur-witz, and a purchase agreement for the price of $241,500.00 was signed on August 22, 2005. On the same date, the Paynes wrote a check in the amount of $1,000.00, representing the required deposit, made payable to Houlemarde Realty, the real estate agency representing Mr. Hurwitz. The purchase agreement provided for a closing date for execution of the act of sale of September 26, 2005, or sooner if mutually agreed. However, it also provided for an automatic extension of the closing date for up to sixty days in the event repairs were necessary.

|sOn August 29, 2005, Hurricane Katrina made landfall, causing extensive damage to property in southeast Louisiana, including Madisonville. Mr. Hurwitz’s home sustained substantial roof damage from the hurricane winds and a fallen tree, as well as water damage to the sheetrock, windows, and other interior fixtures of the left side of the home. The costs of repair were estimated by Mr. Hurwitz, a self-employed contractor with experience as an insurance adjuster, at approximately $60,000.00.

Due to disruption of electronic communications systems and mail service following the hurricane, the Paynes, who had evacuated to Kansas City, Missouri, experienced considerable difficulty in contacting Mr. Hurwitz regarding the status of the sale of the home. On September 9, 2005, they hand-delivered a letter containing their contact information to Michelle Poliski, Mr. Hurwitz’s wife, and attempted to contact Mr. Hurwitz by e-mail directed to Angela Houlemarde, Mr. Hurwitz’s agent. The Paynes also contacted their loan officer, who suggested that they ask the lender’s title attorney to attempt to contact Mr. Hurwitz regarding the status of the closing date and a proposed extension of that date, as authorized by the agreement.

On September 20, 2005, Mr. Hurwitz emailed the lender’s title attorney, acknowledging a conversation of that date and stating:

Per our conversation today I was blunt that the house was in need of major repair due to storm damage. It will take months to get this work completed. I will not be interested in selling for the same amount when and if I decide to sell my house. Naturally the house goes up in value each day. Your client states on the contract a sale for cash. That means no bank loan or approval is needed. I understand that Katrina was an inconvenance [sic ] to every one[.] I’m sorry at this time I cannot afford to sell my house under the previous terms and conditions or the present status of my house and my life at this time. I thank you for your understanding. KH

|40n October 3, 2005, the Paynes filed a petition seeking specific performance and damages, alleging that Mr. Hurwitz breached the terms of the purchase agreement. On October 28, 2005, Mr. Hurwitz answered the petition, alleging that the agreement was unenforceable due to Hurricane Katrina and that his performance was impossible due to force majeure. He also alleged that the property could not be repaired within the automatic sixty-day extension for closing, or by November 24, 2005.

The matter was tried on May 8, 2006. At the conclusion of the trial, the trial court took the matter under advisement after ordering the submission of posttrial memoranda. On September 11, 2006, the trial court issued its judgment, incorporating its written reasons. The court ruled in favor of the Paynes, awarding them the return of their $1,000.00 deposit and an equal amount representing a contractual penalty, as well as costs, fees, expenses and reasonable attorney fees, as provided in the agreement.

The Paynes answered the appeal, seeking amendment of the trial court’s judgment to grant them the alternative remedy of specific performance in lieu of the return of their deposit and the contractual penalty.

ASSIGNMENTS OF ERROR

|sMr. Hurwitz designates four assignments of error on the part of the trial court:

(1) The trial court erred in determining that he breached the terms and conditions of the purchase agreement;

(2) The trial court erred in determining that the home could have been repaired in time to accomplish the closing;

(3) The trial court erred in determining that the obligation was not rendered null and void due to force majeure or an “Act of God”; and

(4) The trial court erred in determining that he was in bad faith under the terms and conditions of the purchase agreement.

In their answer to the appeal, the Paynes assign the following error on the part of the trial court:

(5) The trial court erred in holding that the Paynes were required to set a closing or to “put the seller in default,” in order to be entitled to the remedy of specific performance authorized by the terms of the purchase agreement.

DISCUSSION

The purchase agreement at issue was signed by the Paynes on August 19, 2005 and presented in the form of an offer, and was accepted and signed by Mr. Hur-witz on August 22, 2005. It consisted of a two-page form agreement entitled “Agreement to Purchase or Sell,” and bore language stating that it was produced through the use of a computer software program. The first page, bearing the parties’ signatures, confirmed that the Paynes’ offer was submitted to Angela Houlemarde, Mr. Hurwitz’s designated real estate agent. The purchase agreement contained the following provision relating to the effect of necessary title work or repairs upon the date of the act of sale:

CURATIVE WORK/REPAIRS In the event curative work in connection with the title is required, and/or if repairs are a requirement for obtaining the loan(s) upon which this ^agreement is conditioned, the parties agree to and do extend the date for passing the Act of Sale to a date not more than fifteen (15) days following completion of curative work/repairs; but in no event shall extension exceed sixty (60) days without the written consent of all parties.

The purchase agreement also included the following pertinent provisions:

BREACH OF AGREEMENT BY SELLER In the event SELLER fails to comply with this agreement, for any reason other than inability to deliver a merchantable title, within the time specified, PURCHASER shall have the right to demand specific performance; or, at PURCHASER’S option, PURCHASER shall have the right to demand the return of his deposit in full, plus an equal amount to be paid as penalty by SELLER. In either event, PURCHASER shall have the right to recover any costs and/or fees, including expenses and reasonable attorney’s fees, incurred as a result of this agreement or breach thereof.
DEADLINES Time is of the essence and all deadlines are final except where modifications, changes, or extensions are made in writing and signed by all parties.

Mr. Hurwitz testified at trial that no repairs had been made by the original scheduled closing date of September 26, 2005. According to Mr. Hurwitz, the roof repair began on October 21, 2005, and was completed on October 28, 2005. He received the final supplemental check from his insurer for the estimated cost of repairs on November 15, 2005. He also testified that additional needed repairs were still incomplete at the time of trial.

Louisiana Civil Code article 2623 sets forth the requisite elements of a contract to sell, or purchase agreement:

An agreement whereby one party promises to sell and the other promises to buy a thing at a later time, or upon the happening of a condition, or upon performance of some |7obligation by either party, is a bilateral promise of sale or contract to sell. Such an agreement gives either party the right to demand specific performance.
A contract to sell must set forth the thing and the price, and meet the formal requirements of the sale it contemplates.

Delivery of an immovable is deemed to take place upon execution of the writing that transfers its ownership. La. C.C. art. 2477. Louisiana Civil Code article 2489 expresses the obligation of the seller as to the condition of the thing sold at time of delivery:

The seller must deliver the thing sold in the condition that, at the time of the sale, the parties expected, or should have expected, the thing to be in at the time of delivery, according to its nature.

Under article 2489, the seller must care for and preserve the thing sold as a reasonably prudent administrator, in accordance with the overriding obligation of good faith. La. C.C. art. 2489. Revision Comments — 1993, (b). Thus, Mr. Hurwitz as seller bore the risk of any damage to the home pending the sale, and had the legal duty to restore it to its expected condition prior to delivery to the buyers. As the obligor in that respect, the extensions provided for in the “Curative Work/Repairs” provision of the purchase agreement were primarily for his benefit as seller, to assist him in fulfilling that obligation.

Our Civil Code provides that “[a]n obli-gor is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible.” La. C.C. art. 1873. A fortuitous event is one that, at the time the contract was made, could not have been reasonably foreseen. La. C.C. art. 1875. Our jurisprudence uses the terms “fortuitous event” and force majeure (irresistible force) interchangeably. La. C.C. art. 1873, Revisions Comments — 1984, (c). Force majeure is defined as “an event or effect that can be neither anticipated nor controlled.” Black’s Law Dictionary 673-74 | s(8th ed.2004). It includes such acts of nature as floods and hurricanes. Id. It is essentially synonymous with the common law concept of “act of God,” and the latter term has also found its way into our jurisprudence. See Saden v. Kirby, 94-0854, p. (La.9/5/95), 660 So.2d 423, 428; Bass v. Aetna Ins. Co., 370 So.2d 511, 513 n. 1 (La.1979); and A. Brousseau & Co. v. Ship Hudson, 11 La.Ann. 427 (La.1856). The parties concede, as we do, that Hurricane Katrina undoubtedly was a. force majeure. But this is only part of the contractual defense of impossibility of performance.

To relieve an obligor of liability, a fortuitous event must make the performance truly impossible. La. C.C. art. 1873, Revision Comments — 1984, (d). The nonperformance of a contract is not excused by a fortuitous event where it may be carried into effect, although not in the manner contemplated by the obligor at the time the contract was entered into. Dallas Cooperage & Woodenware Co. v. Creston Hoop Co., 161 La. 1077, 1078-79, 109 So. 844 (La.1926). In other words, if the fortuitous event prevents the obligor from performing his obligation in the manner contemplated at the time of contracting, he must pursue reasonable alternatives to render performance in a different manner before he can take advantage of the defense of impossibility. West v. Cent La. Limousine Serv., Inc., 03-373, p. 2 (La. App. 3rd Cir.10/1/03), 856 So.2d 203, 205. An obligor is not released from his duty to perform under a contract by the mere fact that such performance has been made more difficult or more burdensome by a fortuitous event. Schenck v. Capri Constr. Co., 194 So.2d 378, 380 (La.App. 4th Cir. 1967). The fortuitous event must pose an insurmountable obstacle in order to excuse the obligor’s nonperformance. 5 |9 Saúl Litvinoff, Louisiana Civil Law Treatise: The Law of Obligations, § 16.17, at 476 (2nd ed.2001).

The leading commentator cited above has also made the following observations relevant to the situation of this case:

A question arises when a fortuitous event prevents the timely performance of an obligation without making that performance impossible in an absolute sense. That is the case of a fortuitous event of limited duration that temporarily prevents the use of but does not destroy the means on which the obligor was counting in order to perform the obligation....
If the obligation is [such] that a delayed performance is still useful to the obligee, then the obligor remains bound to perform once the impediment ceases and owes no damages for the delay caused by the fortuitous event.

Id., § 16.62.

Louisiana Civil Code article 1759 provides that good faith governs the conduct of both the obligor and the obligee in whatever pertains to the obligation. Similarly, La. C.C. art. 1983 provides that contracts, or conventional obligations, must be performed in good faith. Thus, a party to a contract has an implied obligation to put forth a good faith effort to fulfill the conditions of the contract. Bond v. Allemand, 632 So.2d 326, 328 (La.App. 1st Cir.1993), writ denied, 94-0718 (La.4/29/04), 637 So.2d 468.

The recent case of Associated Acquisitions, L.L.C. v. CarboneProperties of Audubon, L.L.C., 07-0120 (La.App. 4th Cir.7/11/07), 962 So.2d 1102, also arose in the aftermath of Hurricane Katrina. The defendant in that case also urged the defense of force majeure in an effort to excuse its nonperformance. The court there rejected the defense, observing that under settled Louisiana jurisprudence, “a party is obliged to perform a contract entered into by him if performance be possible at all, and regardless of any difficulty he might experience in performing it.” Id., 07-0120 at p. 9, 962 So.2d at 1107, citing Picard Const. Co. v. Bd. of Comm’rs of Caddo | 10 Levee Dist., 161 La. 1002, 1007, 109 So. 816, 818 (La.1926). The court concluded: “The unexpected and unforeseen damage of Hurricane Katrina does not change the agreement between these parties; therefore, this is an agreement which can still be performed.” Id. 07-0120 at p. 9, 962 So.2d at 1107-08.

Here, the only possible obstacle to Mr. Hurwitz’s performance under the purchase agreement was a temporal one: the completion of the necessary repairs and the closing within the automatic sixty-day deadline or any additional extension agreeable to the parties. The Paynes, as obli-gees, unequivocally expressed their willingness to agree to the latter extension, but Mr. Hurwitz did not, and preemptively rejected the consummation of the agreement as impossible of performance even before the expiration of the automatic sixty-day extension. Mr. Hurwitz could certainly have rendered performance in a different manner, that is, at a later time based upon a mutual written extension of the closing deadline. We agree with the trial court’s conclusion that the real basis of Mr. Hurwitz’s failure to perform was volitional in nature, rather than the type of insurmountable obstacle necessary to invoke the defense of force majeure. The determination of whether performance was truly impossible was a factual one, and the trial court expressly concluded in its reasons that Mr. Hurwitz was disingenuous in his explanation regarding the availability of materials and delay in repairs. Being based upon a reasonable credibility assessment, the trial court’s conclusion cannot be manifestly erroneous.

Inin summary, we conclude that none of Mr. Hurwitz’s assignments of error have merit. As to the Paynes’ assignment of error, however, we conclude that there is merit. Louisiana Civil Code article 1986 provides:

Upon an obligor’s failure to perform an obligation to deliver a thing, or not to do an áct, or to execute an instrument, the court shall grant specific performance plus damages for delay if the obligee so demands. If Specific performance is impracticable, the court may allow damages to the obligee.
Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court.

The factual situation before us clearly falls within the mandatory relief provided in the first paragraph of the article, rather than the discretionary relief authorized by the second paragraph. Additionally, both La. C.C. art. 2623 (relating to purchase agreements) and the express terms of the purchase agreement at issue grant the Paynes the right to seek specific performance. The record does not support a finding that specific performance is impracticable as a remedy under the circumstances of this case.

The trial court based its finding that the Paynes were not entitled to specific performance because they “failed to demand specific performance as provided for in the [contract by setting a closing date or otherwise ... putting [Mr. Hurwitz] in default.” We agree with the Paynes that the trial court erred in that regard as a matter of law. Putting the obligor in default is not a prerequisite to filing suit for specific performance because in such a case the judicial demand itself amounts to a putting in default. La. C.C. art.1989, Revision Comments — 1984, (d). And even if a put-ting in default might somehow be considered a prerequisite to obtaining specific performance, our jurisprudence holds that “there is no-need for a putting in default of a seller who has advised the buyer that he, the seller, will not appear to execute the 112final act of sale at the time fixed for that purpose.” 6 Saúl Litvinoff, Louisiana Civil Law Treatise: The Law of Obligations, Part II: Putting in Default and Damages, § 1.18 (1999). Similarly, if the seller simply refuses to agree to the fixing of a mutually acceptable date for the closing, and affirmatively repudiates his obligation to sell under a purchase agreement, it is quite clear that there is no requirement for a putting in default as a prerequisite to seeking specific performance. See id., § 1.19 at 23. Such is the situation here. We conclude that the'Paynes are entitled to specific performance under the facts before us, and will amend the judgment in their favor to grant them that relief.

DECREE

The judgment of the trial court is amended to vacate the award of $2,000.00, representing the return of the deposit of $1,000.00 and the penalty of $1,000.00, and in lieu thereof to grant the plaintiffs-appel-lees, Wesley Payne and Gwendolyn Payne, specific performance of the Agreement to Purchase and Sell, and to order the defendant, Keefe Hurwitz, to sell the immovable property to the plaintiffs-appellees for the sum of TWO HUNDRED FORTY-ONE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($241,500), in default of which the trial court shall render a judgment that shall stand for the act, pursuant to Louisiana Civil Code article 1988. In all other respects, the judgment is affirmed. This matter is further remanded to the trial court for the entry of an order setting a convenient date and time for the execution of the act of sale, or the entry of a judgment that shall stand for the act. All costs of this appeal are assessed to the defendant-appellant, Keefe Hurwitz.

ANSWER TO APPEAL MAINTAINED; JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED; CASE REMANDED.

McDONALD, J., concurs and assigns reasons.

McCLENDON, J., concurs with the result and assigns reasons.

McDONALD, J.,

concurring:

11 Under the facts of this case, Mr. Hur-witz was obligated to make a good faith effort to repair the property. He breached the contract when he unilaterally and erroneously concluded that Hurricane Katrina relieved him of his obligation, as evidenced by his e-mail of September 20, 2005 stating that he was no longer willing to sell the house. Mr. Hurwitz did not offer any evidence regarding the extent of the damage to the house or the time required to repair it. Although he testified that some of the repairs still had not been made at the time of the trial, the trial court found his testimony “disingenuous,” and I agree with this opinion’s conclusion that the failure to repair was volitional. The purchase agreement allowed the buyer to demand specific performance if the seller was in default. The buyer has made such a demand and there is no reason not to grant it. Therefore, I agree with the result reached, and respectfully concur in the opinion.

McCLENDON, J.,

concurs and assigns reasons.

| í After reviewing the particular facts of this case, I believe that the seller by virtue of his e-mail dated September 20, 2005 to the closing attorney, defaulted on the purchase agreement. Based on that finding, the application and ramifications of the 60 day provision need not be addressed. Although specific performance may not be the correct or appropriate remedy in all default cases following a devastating hurricane, such as Hurricane Katrina, the buyer herein was entitled to pray for specific performance pursuant to the clear language of the purchase agreement, and answered the appeal seeking an order of specific performance. For these reasons, I respectfully concur.

      . It was technically improper for the trial court to incorporate its reasons for judgment in the judgment itself, rather than in an opinion separate from the judgment. See La. C.C.P. art. 1918. Such does not affect the validity of the judgment, however, nor the appeal of the actual judgment, apart from the findings of fact and stated reasons.

      . We previously ordered the parties, ex pro-prio motu, to show cause by briefs why the Paynes’ answer to the appeal should not be dismissed as untimely. Considering the brief submitted by the Paynes and Mr. Hurwitz’s lack of opposition to the timeliness of the answer, we conclude that it was in fact timely, and accordingly maintain the answer to the appeal.

      . The record confirms that the Paynes obtained financing for the purchase from a lender, but there is no evidence that the loan was conditioned upon any repairs. Regardless of whether or not the Paynes’ loan was conditioned upon repairs being made, the parties have conceded the applicability of the extension provision.

      . See, e.g., Carrolton Cent. Plaza Associates v. Piccadilly Restaurants, LLC, 06-0731, p. 4 (La.App. 4th Cir.2/7/07), 952 So.2d 756, 758.

      . The trial court also observed that although Mr. Hurwitz testified that he had "fired” his real estate agent, Ms. Houlemarde, before Hurricane Katrina, and never listed the home for sale after the hurricane, testimony from another real estate agent at trial confirmed that the home was listed for sale as of September 29, 2005, on the MLS (Multi-Listing Service) accessible to realtors, with a new price of $287,000.00. That agent also testified that as of April 28, 2006, Ms. Houle-marde was still shown as the listing agent, with the home’s price at $287,000.00. The trial court also pointedly expressed its belief that Mr. Hurwitz did not feel obligated to fulfill his contractual obligations after the hurricane, and "thereby could profit from Katrina’s destruction by insisting on a higher sales price.”


author: CHARLES R. JONES, Judge.

text:
    Irving ROTH and Mrs. Gertrude Roth v. NEW HOTEL MONTELEONE, L.L.C.
    No. 2007-CA-0549.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2008.

      Robert J. Caluda, The Caluda & Reben-nack Law Firm, Metairie, LA, for Plaintiff/Appellant.
    John W. Waters, Jr., Kristina L. Junot, David E. Walle, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO, JR.).
   CHARLES R. JONES, Judge.

liThe Appellants, Gertrude Roth, wife of/and Irving Roth (hereinafter collectively referred to as “the Roths”), appeal the judgment of dismissal of their personal injury suit. We affirm.

The Roths checked into a hotel owned by the New Hotel Monteleone (hereinafter referred to as “the Monteleone”) -on September 11, 2003, to attend a reunion for World War II veterans, which was being held in the hotel. Mr. Roth, who was seventy-five (75) years-old at the time of his stay, suffers from ambulatory problems and walks with the assistance of a walker.

Upon arriving at the Monteleone, the Roths entered the hotel via its Royal Street entrance, which requires ascending steps in the foyer to enter the hotel lobby. Mr. Roth received assistance from the bellman to climb the steps upon his initial entrance. During the Roths four (4) day stay, they exited and entered the hotel through the Royal Street entrance. Mr. Roth testified that after checking into the Monteleone, he exited and entered the hotel approximately twice a day through the Royal Street entrance with the assistance of hotel personnel. The hotel, however, did have a handicap entrance on Bienville Street.

| ¡.Nevertheless, on the third day of their stay, Mr. Roth fell while attempting to descend the lobby steps with his walker. He was not being assisted by anyone, including Monteleone staff at the time of his fall. Mrs. Roth had already descended the foyer steps and was waiting outside of the hotel for her husband.

The Roths filed suit against the Montel-eone in Civil District Court on May 17, 2004, alleging that the Monteleone was liable for the damages the Roths sustained as a result of Mr. Roth’s fall. The Roths did not allege that the steps in question were defective. Rather, at a bench trial held on September 12, 2006, Mr. Roth testified that the Monteleone staff did not advise him that there was a handicap entrance. The Roths further averred that there were .no warning signs at the main entrance on Royal St. to indicate that a handicap entrance existed. Mr. Roth testified that he decided to descend the lobby steps alone because the hotel staff was busy assisting other guests.

The Monteleone does not contest that a sign was not posted at its main entrance. However, Ms. Sandra Erneker — the manager on duty at the time of Mr. Roth’s fall — testified that the hotel staff assigned to the Royal Street entrance are trained to inform handicapped patrons of the ramp at the Bienville Street entrance and to assist handicapped guests who choose to use the Royal Street entrance.

Ms. Erneker further testified that Mrs. Roth admitted to her that the couple knew about the Bienville Street entrance, but they opted not to use it because they did not want to walk through the hotel’s garage. Another Monteleone employee, Mr. Richard Condon — the executive in charge of loss prevention — testified that the hotel staff assigned to the main entrance are trained to tell visibly impaired patrons about the ramp at the Bienville Street entrance.

| oThe district court rendered judgment in favor of the Monteleone, finding no liability on its part and dismissing the Roths’ case with prejudice. It is from this judgment that the Roths have filed the instant appeal.

The Roths raise two (2) assignments of error on appeal. First, they allege that the district court committed legal error in finding that the Monteleone was not liable when the Roths proved by undisputed evidence that there were no directional signs on the handicap inaccessible main entrance of the hotel and where the breach of that duty caused the plaintiffs’ damages. In their second assignment of error, the Roths assert that the district court committed legal error by failing to invoke an adverse presumption against the Montel-eone because it did not call its employees as witnesses at trial.

Legal errors are subject to a de novo standard-of review. Overton v. Shell Oil Co., 05-1001, p. 8 (La.App. 4 Cir. 7/19/06), 937 So.2d 404, 410. Additionally, where there are conflicts in testimony then reasonable evaluations of credibility and reasonable factual findings should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

With regard to the Roths’ first assignment of error, they contend that the lack of a handicap sign at the front door is a violation of the Americans with Disabilities Act and LSA-R.S. 40:1731-1735. The Monteleone does not contest that it did not have a sign posted at its Royal Street entrance to direct handicapped persons to its ramp at the Bienville Street entrance. Instead, the hotel contends that its policy was for hotel personnel — especially those stationed at the front door — to inform handicapped persons of the Bienville Street entrance and to assist those | ¿handicapped persons who chose to use the Royal Street entrance in spite of being advised of the Bienville Street entrance.

The Roths assert that the Monteleone’s failure to post a sign notifying handicapped patrons that there is a handicap entrance makes them liable for Mr. Roth’s injuries. Their contention is that had Mr. Roth known of the handicap ramp, he would have used it. Nevertheless, the district court found that the Roths did know of the entrance. We agree.

Both parties testified regarding whether the Roths in fact knew that the hotel had a handicap entrance. Though the Roths testified that they were not informed that there was a handicap entrance, the Mon-teleone presented testimony from Ms. Er-neker and Mr. Condon that it was the hotel’s policy to verbally advise impaired patrons of the hotel’s handicap entrance and provide assistance for those patrons who nevertheless decided to utilize the Royal Street entrance.

In fact, the Roths testimony that Mr. Roth was assisted by hotel staff every time he used the Royal Street entrance corroborates the testimony of the Monteleone’s staff that it was their policy to assist handicapped patrons with the lobby steps.

According to the testimony provided by the Monteleone staff, there are two (2) categories of handicapped guests: those who use the Bienville Street ramp, and those who use the Royal Street entrance with the assistance of the Monteleone’s staff. Mr. Roth belonged to the latter category of persons. Mr. Roth was dependent upon hotel staff to assist him in exiting and entering the hotel. Indeed, he was assisted by them each time he entered and exited the hotel, except for the date of the accident. Yet, on the date in question, he decided not to wait for assistance because the staff at the front entrance was busy.

|RIn other words, Mr. Roth became inpatient and decided he was no longer going to wait. When asked how long he waited for someone to help him, Mr. Roth testified “I didn’t wait long at all. I waited a few minutes, there was nobody there, and I started down.”

We do not find that the district court erred in finding that the Monteleone was not accountable for the Roths’ damages where Mr. Roth: knew about an alternate handicap-accessible means of exiting the hotel; purposefully chose not to use said exit, and subsequently, injured himself after attempting to use the main entrance unassisted by anyone. It was Mr. Roth’s impatience, not a lack of signage, that caused him to fall. The Bienville Street entrance and a lack of signage is not what caused Mr. Roth’s fall. We find that this assignment of error lacks merit.

The second assignment of error that the Roths raise is that the district court committed legal error in failing to invoke an adverse presumption against the Monteleone for its failure to call employees who allegedly told the Roths that there was a handicap entrance. The Roths argue that an adverse presumption should have been applied against the Monteleone pursuant to the “uncalled witness rule.”

In Taylor v. Entergy Corp., 01-805 (La. App. 4 Gir. 4/17/02), 816 So.2d 933, this Court explained the uncalled witness rule as follows:

The “uncalled witness” rule has been defined as an adverse presumption that arises when “a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence” and fails to call such witnesses. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof, § 4.3 (1999). A party’s failure to call such witnesses gives rise to the presumption that “the witnesses’ testimony would be unfavorable to him.” Id. Although the advent of modern, liberal discovery rules has been recognized to limit this rule, it “remains viable.” Id. Indeed, this court has | ^recognized this rule applies when, as in this case, witnesses with peculiar knowledge of material facts pertinent to the case are not called. Stewart v. Great Atlantic and Pacific Tea Co., 657 So.2d 1327, 1330 (La.App. 4 Cir.1995); Gurley v. Schwegmann Supermarkets, Inc., 617 So.2d 41, 44 (La.App. 4 Cir.1993). We have also noted that “[t]he court may consider this presumption as it would any other relevant evidence in the case.” Id.

Id., pp. 14-15, 816 So.2d at 941.

We noted that the purpose of the adverse presumption is that “a court may consider the fact that a party did not call a witness, available only to that party, with knowledge of facts not testified to by any other witness, which are pertinent to the case. Once a party makes a showing of this, and the other party does not produce a reasonable explanation for its failure to call that witness, the court may presume that the witness’ testimony would have been unfavorable.” Gurley v. Schwegmann Supermarkets, 617 So.2d 41, 44 (La. App. 4 Cir.1993).

Upon reviewing the “uncalled witness,” we find that the application of an adverse presumption against the party who does not produce a witness is discretionary on the part of the district court. It was well within the discretion of the district court to decide not to apply an adverse presumption.

Furthermore, considering the evidence in the record indicates that there were witnesses who were no longer in the Monteleone’s employ and were dispersed by Hurricane Katrina, the uncalled witness rule is not applicable. The rule is intended to punish parties who are withholding witness testimony, not to penalize parties |7who do not have the power to produce witnesses to testify. Taylor, 01-0805, p. 14, 816 So.2d at 941. Therefore, we find this assignment of error to be without merit.

DECREE

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

AFFIRMED.


author: ROLAND L. BELSOME, Judge.

text:
    SDS, INC. v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2007-CA-0406.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2008.

      Randall A. Smith, L. Tiffany Davis, Smith & Fawer, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Gregory G. D’Angelo, Panzeca & D’Angelo, L.L.C., Metairie, LA, and Bernard L. Knobloch, Jr., Office of the General Counsel, Dept, of Transportation and Development, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 This case arises out of the State of Louisiana Department of Transportation and Development’s (DOTD) Howard Avenue Improvement Slip Ramp Project (the Project). The project involved the DOTD’s construction of an Interstate exit ramp from the Pontchartrain Expressway onto Howard Avenue.

SDS, Inc. (SDS) is the owner of land and improvements located at municipal address 4700 Howard Avenue, New Orleans, Louisiana (the property). The property is located on the east bound side of Interstate 10 near .the Jefferson Davis Parkway overpass and fronts Howard Avenue. Improvements on the property comprise an entire city block, bounded by Howard Avenue, South Clark Street, Dixon Street and South Genois Street.

The initial plan for the project called for the taking of access to Howard Avenue from the property, requiring an expropriation proceeding by DOTD. Although DOTD altered the design of the project and avoided the need for an expropriation proceeding, the completed project resulted in the loss of previously 12enjoyed property rights. More specifically, the property could no longer be accessed by 18-wheeler trucks, and therefore could not be used for its highest and best use as an industrial warehouse. Thus, on June 1, 2001, SDS filed an inverse condemnation suit against DOTD.

A jury trial was held on October 30 and 31 and November 2 and 3, 2006. At trial, SDS presented evidence relating to the damage to its property as a result of the project. The jury found in favor of SDS and awarded damages. The trial court also awarded SDS attorneys’ fees and costs. The DOTD appeals.

On appeal the DOTD raises the following assignments of error: 1) the trial court erred in its legal conclusion that there was a taking by the DOTD; 2) the trial court erred by denying DOTD’s motion for' directed verdict; 3) the damages awarded by the jury for inverse condemnation are not compensable; 4) the trial court erred in allowing the issue of property damages to go to the jury; 5) the jury’s award for construction damages was not based on sufficient evidence; and 6) the trial court’s award of attorneys’ fees, expert witness fees and costs is erroneous or excessive. In response, SDS seeks additional attorneys’ fees for the appeal process.

In the event we find that the trial court erred in its application of legal principles this court must-conduct a de novo review of the record to render an independent judgment applying the correct principles of law. See Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742; McLean v. Hunter, 495 So.2d 1298 (La.1986). Otherwise, this Court reviews the trial court’s |sand jury’s findings of fact under the manifestly erroneous/clearly wrong standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

The trial court denied the defendant’s motion for directed verdict on the issue of whether a taking by the DOTD had occurred. At trial SDS provided the trial court with expert testimony establishing that the highest and best use of the property was that of an industrial warehouse. The experts also testified that the property was no longer able to operate as an industrial warehouse because of the inability of 18-wheeler trucks to access the property. After being presented with all the evidence, the trial court proceeded to inform the jury that there had been a taking of SDS’ property in the constitutional sense. The trial court stated that SDS’:

... damage is more than inconvenience. It is more than traffic rerouting. It is 'more than inability to use the property during the construction of the project. It is more than traffic reconfigured at the end of the project. It is in fact damage in what the Court considers to be a constitutional sense.

' The Louisiana Constitution, Article 1, Section 4 provides for compensation to a landowner whose property rights are taken or damaged. When a landowner suffers a taking or damage in the absence of an expropriation proceeding he. may seek compensation through an inverse condemnation action. Constance v. State Through Dept. of Transp. and |4 Development, 626 So.2d 1151 (La.1993); and Reymond v. State Through Dept. of Highways, 255 La. 425, 231 So.2d 375 (1970). The Louisiana Supreme Court in State Through Dept. of Transp. and Development v. Chambers Inv. Co., Inc., 595 So.2d 598 (La.1992), acknowledged that under the Constitution compensation is required even though the State has not initiated an expropriation proceeding and physically taken property from the owner. Id.; also see Reymond, supra. The Chambers court went on to set forth a three prong test to assist in establishing whether a constitutional taking has occurred. The factors for the court to decide are as follows: 1) whether a person’s legal right with respect to a thing or an object has been affected; 2) whether the property, either a right or a thing, has been taken or damaged, in a constitutional sense; and 8) whether the taking or damaging was for a public purpose.

On appeal the DOTD argues that the trial court, when applying the Chambers test must also consider the provisions of La. Civil Code articles 667 and 668. The Chambers court viewed articles 667 and 668 as imposing limitations to a landowner’s right of ownership, stating that some | sinconvenience must be tolerated from the lawful use of a neighbor’s land. Chambers, 595 So.2d at 600. Hence, in the absence of personal injury or physical damage to property, there must be a showing of excessive or abusive conduct. Id. The Court went on to explain that “[i]n other words, as long as the activities on the State’s land do not exceed the level of causing the claimant ‘some inconvenience,’ there can be no taking or damaging.... ”

Prior to its opinion in Chambers, the Supreme Court discussed compensable damages for an inverse condemnation claim. Reymond, supra, held that liability can be assessed against a public body when the claimant can prove special damages peculiar to the particular property. That “special damage” principle set forth by Reymond still proves to be a valid consideration when determining if there has been a taking. See Constance, supra 626 So.2d at 1158.

Moreover, the conclusion of the Chambers opinion reads as follows:

Consequently, we conclude that the construction activities on the State’s land did not constitute a breach of the State’s duty under Civil Code article 667 or amount to an inconvenience greater than that Chambers was bound to tolerate under Article 668. Therefore, Chambers Investment was not entitled to compensation ... (emphasis added).

Chambers, supra, 595 So.2d at 606. The damage suffered by SDS in the case sub judice far exceeds “some inconvenience”. We cannot find that the Supreme Court’s intent of its analysis |6 fim Chambers was to allow the type of taking suffered by SDS. Further, to suggest that SDS is bound to tolerate such damage under article 668 is absurd. SDS has a constitutionally protected property right to use its property to its highest and best use; that property right has been permanently taken away.

Clearly, the particular facts of the case sub judice are distinguishable from Chambers (the property in question was vacant land and .the landowner suffered only a delay in development), Avenal (the plaintiffs were not landowners), and Constance (the alleged damage resulted from the temporary rerouting of traffic). Thus, upon review of the evidence presented in this case we find that SDS has suffered damage in the form of a taking in the constitutional sense warranting compensation. Accordingly, we find no legal error on the part the trial court in its application of the law. This determination is disposi-tive of the DOTD’s first three assignments of error.

Next DOTD claims that the trial court erred in allowing the jury to consider property damage or alternatively there was not sufficient evidence to award damages. We disagree.

SDS presented evidence of the physical damage to its building that did not exist prior to the project as well as an expert’s opinion on the repair costs. DOTD did not present any contradicting evidence to the jury. Thus, this court cannot find the jury’s finding of fact or award of damages to be clearly wrong or manifestly erroneous.

17 FinaIly, DOTD avers that the trial court erred in the award of fees and costs because La. R.S. 13:5111(A) does not apply if there is no “taking” or/alternatively the amount of the award was excessive. Since this Court has determined there was a taking, La.R.S. 13:5111(A) clearly applies.

The only issues that remain are whether the fees and costs awarded were excessive and whether the appellees are entitled to additional fees for this appeal. SDS provided the trial court with detailed billing statements memorializing the hundreds of hours that were spent developing and trying this case. The fees for the hours expended on this case totaled more than two hundred fifty thousand dollars ($250,-000.00). The trial court reduced those fees by more’ than fifty percent, awarding one hundred twenty-five thousand dollars ($125,000.00) in attorneys’ fees. Likewise, SDS’ expert witness fees exceeded fifty thousand dollars ($50,000.00), but SDS was only awarded thirty-five thousand dollars ($35,000.00). The amount of costs submitted were the same as was awarded, nine thousand four hundred fifty-nine dollars and ninety-four cents ($9,459.94).

There are a number of factors for the court to consider when determining the reasonableness of attorneys’ fees. The Louisiana Supreme Court set out the factors in State, Dept, of Transp. and Devel opment v. Williamson, 597 So.2d 439, 442 (La.1992), (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) lathe likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. Also see, Smith v. State Through Dept. of Transp. and Development, 2004-1317 (La.3/11/05), 899 So.2d 516.

In the instant case the attorneys used there experience and expertise in this area of law to succeed in proving to the jury that compensation was due SDS for inverse condemnation. Further, the attorneys put in a considerable amount of time in preparing and trying this matter over a six year period. This case involved complex litigation as evidenced by the testimony of the four expert witnesses specializing in real estate, traffic engineering and construction. The attorneys’ contract with SDS called for the attorneys to receive “the Court-awarded attorneys fees,” which amounted to $125.00 per hour. Given the statutory authority for attorneys’ fees, this Court cannot find the trial court abused its discretion in the amount awarded for attorneys’ fees.

A landowner is entitled to recover costs for expert witnesses under La. R.S. 13:5111(A). Smith, supra 899 So.2d at 530. The amount of fees the landowner is entitled to recover is directly related to the usefulness of the testimony to the trier of fact. State, Dept. of Transp. and Development v. Jacob, 491 So.2d 138 (La.App. 3 Cir.1986). The DOTD claims that the trial court erred in awarding SDS expert witness fees, because based on the award of damages the jury disregarded the | citestimony given by SDS’ experts. This Court rejects that argument. SDS was successful in proving its inverse condemnation case because it established such a taking through expert testimony. This assignment is without merit.

Lastly, this Court, considering SDS’ request for additional attorneys’ fees for defending this appeal. Considering the size of the record and the complexity of the litigation this Court has determined that attorneys’ fees in the amount of $10,000.00 for hours expended post trial are hereby awarded to the appellee, SDS, Inc.

For the reasons discussed we affirm the trial court’s determination of law, the jury’s award of damages, together with attorneys’ fees and costs. Additionally we award $10,000.00 in post trial attorneys’ fees.

AFFIRMED AS AMENDED.

      . Property shall not be .taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into the court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss ... La. Const. Art. I, § 4, cited in Avenal v. State of Louisiana and Dept. of Natural Resources, 03-3521, pp. 25-26 (La. 10/19/04), 886 So.2d 1085, 1103.

      . Article 667 read as follows:
      Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultrahazar-dous activity as used in this Article is strictly limited to pile driving or blasting with explosives.
      Article 668 reads: ■
      Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
      Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors's [neighbor's] house, because this act occasions only an inconvenience, but not a real damage.

      . La. R.S. 13:5111(A) reads as follows:
      A. A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as- are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.