author: THIBODEAUX, Chief Judge.

text:
    Wiley STEWART v. CALCASIEU PARISH SCHOOL BOARD, et al.
    No. 05-1339.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Rehearing Denied June 28, 2006.

      Johnnie A. Jones, Sr., Jones & Jones Attorneys at Law, Baton Rouge, LA, for Plaintiff/Appellant — Wiley Stewart.
    Charles V. Musso, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Secondary Defendants/Appellants' — Calcasieu Parish School Board, Administrative Services of Lake Charles, and Washington National Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

1 t Defendants, Calcasieu Parish School Board, Administrative Services of Lake Charles, and Washington National Insurance Company (hereinafter collectively referred to as “CPSB”), appeal the trial court’s award of penalties and attorney fees to the Plaintiff, Wiley Stewart (Mr. Stewart), based on the trial court’s determination that CPSB wrongfully and arbitrarily terminated Mr. Stewart’s health insurance benefits. Mr. Stewart appeals the trial court’s previous grant of CPSB’s motion for partial summary judgment on the issue of damages. For the following reasons, the trial court’s award of penalties and attorney fees is reversed, and Mr. Stewart’s appeal is dismissed.

I.

ISSUE

Did the trial court commit manifest error when it awarded penalties and attorney fees to Mr. Stewart?

II.

FACTS

Mr. Stewart filed a petition in district court in November of 1993, asking the court to order CPSB to reinstate his health insurance coverage, to assess damages against CPSB due to the cancellation of his insurance coverage, and to assess penalties and attorney fees against CPSB. As a retired CPSB employee, Mr. Stewart continued to enjoy health insurance coverage through CPSB. While actively employed, the premium payments had been deducted from his payroll checks. Once retired, the premium payments were made by Mr. Stewart in person. The dispute between the parties concerned whether Mr. Stewart was late with his premium payment. CPSB alleged that the premium payment was offered after the deadline for | ¡^payment and that is why it canceled his health insurance coverage. Mr. Stewart alleged that his insurance benefits were discontinued prematurely before the policy lapsed into nonpayment, and that CPSB therefore erroneously refused to accept his premium payment when offered.

After seven years of extensive legal arguments in the trial court, this appellate court, and the Louisiana Supreme Court, a judgment was finally rendered that indeed the insurance policy was canceled prematurely, and that Mr. Stewart should be reinstated in the CPSB health insurance plan. Stewart v. Calcasieu Parish Sch. Bd., 99-1193 (La.App. 3 Cir. 3/1/00), 762 So.2d 38, writ denied, 00-930 (La.6/2/00), 763 So.2d 597. This court also ordered the trial court to conduct a trial to determine the amount of damages owed to Mr. Stewart for any insurance claims which accrued during the period of cancellation.

CPSB filed a motion for partial summary judgment on the issue of damages. It alleged that given the information already in the voluminous record, there was no genuine issue of material fact in dispute regarding the issue of damages. The trial court denied CPSB’s motion. CPSB appealed the denial of its motion for partial summary judgment to this court. Based on the evidence in the record, and Mr. Stewart’s counsel’s repeated lack of participation and cooperation with both the trial court and CPSB in terms of producing any other bills or claims to prove his general demand for damages, this court in an unpublished writ opinion reversed the trial court’s judgment, and ordered that the motion for partial summary judgment be granted. After Mr. Stewart’s petition for a writ of certiorari on the issue was denied by the Louisiana Supreme Court, the order of this court became the unappealable law of the case. Stewart v. Calcasieu Parish Sch. Bd., 05-824 (La.4/1/05), 899 So.2d 1. The trial court then entered a judgment granting the motion for partial summary judgment, and damages were owed to Mr. Stewart by CPSB in the amount of $7,549.38.

The only issues outstanding in this case were whether penalties and attorney fees, as authorized by La.R.S. 22:657, should be assessed against CPSB. After a number of attempts to get Mr. Stewart’s counsel to participate in a hearing on this issue, the trial court ordered that penalties representing 100% of the amount of damages were due to him, as well as attorney fees in the amount of $40,000.00. Mr. Stewart’s counsel refused to submit any evidence other than what was already contained within the trial record on either the issue of penalties, or documentation for attorney fees.

CPSB now appeals the trial court’s judgment awarding penalties and attorney fees to Mr. Stewart. Mr. Stewart’s counsel continues to inappropriately insist that summary judgment was the improper procedural vehicle to adjudicate the issue of damages. As such, his appeal focuses on the propriety of the granting of CPSB’s motion for partial summary judgment on the issue of damages.

III.

LAW AND DISCUSSION

Was the Trial Court’s Award of Penalties and Attorney Fees Manifestly Erroneous?

Appellate courts review findings of fact to determine if the district court committed manifest error or was clearly wrong in its judgment. Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court is required to review the case record in its | ¿entirety to determine whether the trial court reached a reasonable conclusion based on the facts and evidence in that record. Id.

Mr. Stewart based his claim for entitlement to an award of penalties and attorney fees on La.R.S. 22:657(A), which reads:

A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. Any court of competent jurisdiction in the parish where the insured lives or has his domicile, excepting a justice of the peace court, shall have jurisdiction to try such cases.

La.R.S. 22:657(A) (emphasis added).

An award of penalties and attorney fees under this statute serves as a punishment, and therefore must be applied with great care. “This section is penal in nature and is strictly construed. The burden is on the claimant to prove arbitrariness and capriciousness or lack of probable cause. Batiste v. Pointe Coupee Constructors, Inc., 401 So.2d 1263 (La.App. 1st Cir.1981), writ denied, 409 So.2d 615 (La.1981).” Marien v. Gen. Ins. Co. of Am., 02-545, p. 12 (La.App. 3 Cir.2002), 836 So.2d 239, 249 (quoting Sanders v. Wysocki, 92-1190, p. 8 (La.App. 4 Cir. 1/27/94), 631 So.2d 1330, 1335, writ denied, 94-506 (La.4/22/94); 637 So.2d 156), writs denied, 03-474 (La.5/9/03), 843 So.2d 396, 03-513 (La.5/9/03), 843 So.2d 397; See also Robin v. Allstate Ins. Co., 03-1009, 03-926 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, writ denied, 04-1383 (La.9/24/04), 882 So.2d 1143.

The determination as to whether an insurer acted arbitrarily or capriciously is a fact-based analysis, and therefore cannot be overturned by an appellate court absent a finding of manifest error, or that the trial court was clearly wrong. “ ‘The determination of whether an insurer’s handling of a claim is arbitrary or capricious is one of fact, which should not be disturbed on appeal unless it is manifestly erroneous.’ ” Robin v. Allstate, 870 So.2d at 410 (quoting Myers v. Broussard, 96-1634, p. 29 (La.App. 3 Cir. 5/21/97), 696 So.2d 88, 103).

The party claiming entitlement to penalties and attorney fees bears the burden of proving that the insurer had sufficient proof that payment on a claim was due as a basis for establishing that the insurer was arbitrary and capricious in denying the claim. Reed v. State Farm Mut. Auto. Ins. Co., 03-107 (La.10/21/03), 857 So.2d 1012.

The determination of whether the insurer acted arbitrarily or capriciously must be based, at least in part, on the information known to the insurer at the time the claim was made. If the insurer has a good faith, reasonable explanation for its failure to timely pay on a claim, then the penalty provisions should not apply. Myers, 696 So.2d 88. Also, when a reasonable disagreement exists between an insurer and an insured, it is not arbitrary and capricious or without probable cause on the part of the insurer to deny payment on the claim that is in dispute. Wiley v. Safeway Ins. Co., 99-161 (La.App. 3 Cir. 7/14/99), 745 So.2d 636. “Whether there are such just and reasonable grounds is a question of fact. The trial court’s findings of fact may not be disturbed on appeal absent manifest error.” Craig v. K & K Ins. Group, Inc., 00-1549, p. 3 (La.App. 3 Cir. 2/28/01), 780 So.2d 1249, 1251 (citation omitted), writ denied, 01-839 (La.5/11/01), 792 So.2d 738.

| (¡Does the Record Support the Trial Court’s Determination that CPSB was Arbitrary and Capricious in its Cancellation of Mr. Stewart’s Health Insurance?

As the party claiming an entitlement to penalties and attorney fees, Mr. Stewart had the burden of proving that CPSB was arbitrary and capricious in its cancellation of his health insurance benefits. Mr. Stewart presented no evidence whatsoever at the trial on this issue, even after repeated requests for him to do so from the trial court. He was even given more time by the trial court to assemble evidence on the issue of whether CPSB was arbitrary and capricious. He refused the trial court’s offer.

Therefore, we must examine the record to determine if there is evidence of arbitrary and capricious behavior by CPSB that would support the trial court awarding penalties and attorney fees to Mr. Stewart. In his oral reasons for judgment, the trial court judge stated that his basis for assessing penalties and attorney fees was, “[T]hat is was improper to deny coverage based upon failure to make a payment, when the school board should have made the payment for him taking it out of his check, that is. That it was unreasonable for the school board to have denied payment of the claim presented by Mr. Stewart. And accordingly, Mr. Stewart is entitled to double the payments that has [sic] been adjudicated.... ”

Our review of the record reflects that reasonable persons could conclude that there was a genuine and good faith basis for CPSB’s cancellation of Mr. Stewart’s health insurance. There were a number of documents reflecting different due dates by which Mr. Stewart had to pay his monthly insurance premium in order for his health insurance benefits to stay active and not get canceled. In fact, all but one document reflected a due date of December 4,1992.

Therefore, it would have been a reasonable and good faith decision on the part of CPSB to deny Mr. Stewart’s attempt to pay his insurance premium when |7he presented it on February 4, 1993. The trial court found that there was enough evidence to grant a motion for summary judgment in favor of CPSB, stating that there was no genuine issue of material fact as to whether the insurance premiums were canceled correctly. A jury also rendered a verdict stating the same conclusion. This court reversed both of those judgments, stating in each case that an internal memo from the CPSB Finance Department indicated that the insurance payment was not late unless received after February 5, 1993.

In the judgment reversing the trial court’s grant of summary judgment in favor of CPSB, we stated that although there was prima facie evidence that CPSB prematurely canceled the insurance policy, “reasonable persons could disagree as to whether the School Board acted properly in canceling his insurance policy.” Stewart v. Calcasieu Parish Sch. Bd., 97-904, p. 4 (La.App. 3 Cir. 2/4/98), 707 So.2d 487, 488. If reasonable persons could disagree, then CPSB did not act arbitrarily and capriciously when it canceled Mr. Stewart’s health insurance.

It is important to note that no court rendering judgment on the issues in this case over the course of the thirteen years this case has been adjudicated has ruled that CPSB was required by law to take Mr. Stewart’s health insurance premium payment out of his retirement benefit check, and was therefore arbitrary and capricious for not doing so. Based on our review of the record, and what it contains and does not contain, the trial judge committed manifest error when he awarded penalties in the amount of $7,549.38 to Mr. Stewart.

The plain language of La.R.S. 22:657(A) states that penalties “together with attorney’s fees” are payable to the insured as a punishment for the insurer’s failure to comply with the provisions of that section of the statute. La.R.S. 22:657(A). “The words ‘together with attorney’s fees’ indicate attorney’s fees may only be assessed when grounds exist to award penalties. See Miley v. Fireside Mut. Ins. Co., 200 So. 505 (La.App. 1st Cir.1941). Having determined no grounds existed to award the statutory penalty, it was clearly wrong for the trial court to award attorney’s fees.” Lucito v. La. Hosp. Serv., Inc., 892 So.2d 700, 703 (La. App. 3 Cir.1980). Thus, if penalties were erroneously awarded to Mr. Stewart by the trial court, so were attorney fees.

CPSB’s assertion that the trial court’s award of attorney fees in the amount of $40,000.00 was manifestly erroneous, and its contention that the trial court’s award of legal interest on the award of attorney fees was manifestly erroneous, are both made moot by our judgment.

Appeal by Mr. Stewart

Mr. Stewart’s counsel has missed the point. Despite many entreaties and attempted guidance by the trial court directing him to address the now final issue of damages, and the current issue of penalties and attorney fees, he has adamantly refused to heed that advice. The trial court’s judgment granting CPSB’s motion for partial summary judgment on the issue of damages was entered on the order of this court, after Mr. Stewart appealed this issue up to the Louisiana Supreme Court, and his writ for grant of certiorari on the issue was denied. Stewart, 899 So.2d 1. As such, it is final and no longer appealable. Therefore, his appeal of the judgment of the trial court granting CPSB’s motion for partial summary judgment on the issue of damages is dismissed.

TV.

CONCLUSION

Under La.R.S. 22:657(A), an insured party making a claim for penalties and attorney fees against their insurer bears the burden of proving that the insurer either denied coverage or failed to pay a claim when confronted with proof that it was l9due, and that the insurer did so without probable cause, in an arbitrary and capricious manner. Mr. Stewart’s counsel failed to present any evidence, and therefore did not meet his burden of proving that CPSB acted either arbitrarily or capriciously when it canceled Mr. Stewart’s health insurance. Because Mr. Stewart did not meet his burden of proof, the trial court committed manifest error when it awarded him penalties and attorney fees pursuant to La.R.S. 22:657(A). The trial court’s judgment is reversed, and all costs of this appeal are cast to Mr. Stewart.

Mr. Stewart’s attempt to revive the already-decided issue of damages is dismissed. All costs of the entire appeal are cast to Mr. Stewart.

REVERSED AND RENDERED. APPEAL OF WILEY STEWART DISMISSED.

      . "The trial court errjsd in denying relators’ Motion for Partial Summary Judgment. Plaintiff failed to submit evidence in opposition to relators' motion as required by La. Code Civ.P. art. 966 et seq. Accordingly, the trial court’s ruling is hereby reversed and set aside and the trial court is hereby instructed to enter judgment in accordance with the above expressed opinion.” Stewart v. Calcasieu Parish Sch. Bd., CW 04-1665 (La.App. 3 Cir. 3/2/05).

      . Mr. Stewart’s counsel continued to insist on trying the issue of damages, despite our prior writ decision ordering the trial court to enter a judgment on damages.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    Allie P. BERGERON v. Donald WILLIAMS, Allstate Insurance Co., and State of Louisiana, Department of Public Safety & Corrections, Office of Motor Vehicles. Patrick Pellegrin, Joycelyn Pellegrin, Individually and on Behalf of Their Minor Child, Faith Pellegrin v. Donald Williams, Allstate Insurance Co., and State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles.
    Nos. 2005 CA 0847, 2005 CA 0848.
    Court of Appeal of Louisiana, First Circuit.
    May 12, 2006.

      Danny J. Lirette, Dexter A. Gary, Dennis John Elfert, Houma, Counsel for Plaintiff/lst Appellant Allie P. Bergeron.
    Gregg J. Graffagnino, Houma, Counsel for Plaintiffs/2nd Appellants Patrick Pel-legrin, et al.
    James L. Donovan, Jr., Metairie, Counsel for Defendant/3rd Appellant Donald Williams.
    Christopher H. Riviere, Nicholas J. Ze-ringue, Thibodaux, Counsel for Defen-danVAppellee Audubon Indemnity Company.
    Charles C. Foti, Attorney General, Baton Rouge, Kenneth M. Henke, Nicole A.M. Fontenot, Special Assistant Attorneys General, Lafayette, Counsel for Defendant/Appellee State of Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   HUGHES, J.

IsThis appeal arises from a personal injury suit following an automobile accident and raises issues concerning insurance subrogation claims and the trial court’s assignment of fault, particularly that of the state for alleged negligent issuance of a driver’s license. For the reasons that follow, we affirm the judgment of the trial court, in part, and reverse in part.

FACTS AND PROCEDURAL HISTORY

This automobile accident occurred on July 31, 1996 on La. Highway 3185 in Lafourche Parish. Plaintiffs, Allie P. Ber-geron and Patrick Pellegrin, had stopped their respective vehicles on the side of the highway, while on the job for Blue Water Rubber and Gasket Company, to exchange some gaskets. Allegedly plaintiffs’ vehicles were partially protruding onto the roadway. While plaintiffs were so positioned, defendant Donald F. Williams, Sr., drove his vehicle into them, causing them serious injury.

On July 8, 1997, Allie P. Bergeron filed suit against Donald Williams, his automobile insurer, Allstate Insurance Company (Allstate), and the State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles (State). In addition to the negligence of Mr. Williams, it was alleged that the State was negligent in issuing a driver’s license to Mr. Williams. On July 29, 1997 Patrick Pellegrin, along with his wife Joycelyn Pellegrin, individually and on behalf of their minor daughter, Faith Pellegrin, filed a separate suit for damages naming the same defendants as Mr. Bergeron. The two suits were subsequently consolidated.

|4In response to the lawsuit(s), the Louisiana Workers’ Compensation Corporation (LWCC) filed an intervention seeking to recover workers’ compensation benefits paid to Mr. Bergeron and Mr. Pellegrin. The plaintiffs’ employer’s UM insurer, Audubon Indemnity Company (Audubon), answered the suits denying coverage, and in the alternative, asserted contributory negligence on the part of plaintiffs, as well as a cross claim against Donald Williams and the State for their alleged negligence. The State also answered the suits and filed cross claims against Mr. Williams and Allstate for indemnity and contribution.

On December 23, 1996, Audubon deposited $1,000,000 into the registry of the trial court. In March of 1998 Audubon entered into a settlement with Mr. Bergeron for one-half of the sums on deposit with the court, and thereafter with Mr. Pellegrin and his family for the remaining one-half. All of the deposited funds were withdrawn from the court’s registry by early 1999. In April of 2001, plaintiffs and the LWCC dismissed their claims against Mr. Williams and Allstate.

A bench trial was held on April 26-27, 2004 and judgment was subsequently signed on September 17, 2004 assessing Mr. Williams with 70% fault and Mr. Ber-geron and Mr. Pellegrin each with 30% fault (as to their respective injuries), rendering judgment in favor of Audubon against Mr. Williams for $1,000,000, and dismissing plaintiffs’ claims against the State. In reasons for judgment the trial court stated that each plaintiffs damages amounted to approximately $4,000,000.

1 sMr. Bergeron appeals the trial court judgment and makes the following assignments of error:

1. The trial court erred when it did not follow [Bozeman v. Reed, 92-0858 (La.App. 1 Cir. 3/11/94), 633 So.2d 944], holding the Department of Motor Vehicles liable for failing to follow its own guidelines that require an applicant to be sent to an eye doctor for a detailed medical report.
2. The trial court erred when it failed to make a credibility determination between two experts whose opinions directly contradict each other by calling them equally credible.
3. The trial court erred by not giving greater weight to the treating physician.
4. The trial court erred when [it] held that Mr. [Williams’] [peripheral] vision was more likely than not 80 degrees [temporal] and 50 degrees [nasal of the left eye] (as opposed to 20 degrees [temporal] and 10 degrees [nasal of the left eye]).
5. The trial court err[ed] when it failed to give Allie Bergeron the benefit of a negative inference against [the State] DMV.

Mr. Pellegrin also appeals the trial court judgment, urging the same errors as Mr. Bergeron and making the following additional assignment of error:

The trial court erred when it did not properly determine the fault of the [State] Department ... of Motor Vehicles by performing the necessary duty/ risk analysis to the case at issue.

Mr. Williams also appeals the judgment of the trial court, making the following assignments of error:

1) The trial court erred in determining Audubon had a right of uninsured motorist subrogation against Donald Williams under the terms and conditions of the policy and facts of the case.
2) The trial court erred in determining Audubon met its burden of proof at trial in establishing the essential elements of its case of subrogation against Donald Williams.
3) The trial court erred in determining that the [State] did not breach its duty to plaintiffs.
|fi4) The trial court erred in assessing Donald Williams with 70% fault for the motor vehicle accident.

These assignments of error present essentially three issues for resolution by this court: (1) whether the trial court erred in finding the State was without fault in causing the accident at issue in this case; (2) whether Donald Williams was properly assessed with 70% fault in causing the accident; and (3) whether Audubon properly prevailed on its claim of subrogation against Donald Williams.

LAW AND ANALYSIS

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The supreme court has announced a two-part test for the reversal of a factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). See also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, through Dept. of Transp. and Development, 617 So.2d at 882. Where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact’s findings demand great deference. Boudreaux v. Jeff, 2003-1932, p. 9 (La.App. 1 Cir. 9/17/04), 884 So.2d 665, 671; Secret Cove, L.L.C. v. Thomas, 2002-2498, pp. 6-7 (La.App. 1 Cir. 11/7/03), 862 So.2d 1010, 1016, writ denied, 2004-0447 (La.4/2/04), 869 So.2d 889. 17Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d at 844.

Fault of the State

In ruling that no fault was proven on part of the State, the trial court made the following findings of fact:

Policy/Procedure Statement # 9.0 states that “applicants blind in one eye, with or without corrective lenses, must have 20/40 vision in the good eye.” Applicants failing to meet this standard must be referred to a vision specialist of the applicant’s choice. The January 7, 1993, renewal application for a Louisiana operator’s license stated that Donald Williams had no sight in his right eye and visual acuity, with corrective lenses, of 20/50 of his left eye and 20/40 of both eyes.
The evidence proves that it is more likely than not that Donald Williams’ visual acuity at the time of his license renewal on January 7,1993, was 20/50 in his left eye and 20/50 in both eyes. Dr. Van Michael Ardoin and Dr. Laurence W. Arend testified that the combined visual acuity could not be greater than the visual acuity of the only eye which has sight.
The regulations of the Department of Motor Vehicles require that an applicant with a visual acuity of 20/50 must be examined by an eye specialist in order to determine whether the applicant can safely operate a motor vehicle. Form 2002 makes the following inquiry of the examining eye specialist: “In your opinion, from a visual stand point, can this patient safely operate a motor vehicle.”
In order to prove fault on the part of the Office of Motor Vehicles, the petitioners must prove by a preponderance of the evidence that an examining eye specialist would have concluded that Mr. Williams could not have safely operated a motor vehicle, and thus, the Office of Motor Vehicles would have either denied the issuance of a driver’s license or issued a more restrictive driver’s license.
The exhibit identified as Joint Exhibit Number 2 contains a Form 2002 completed by Dr. G.T. Tufty, dated September 9, 1996, which reflects that Mr. Williams had a corrected visual acuity of 20/40 and a horizontal visual field of 20 degrees temporal and 10 degrees nasal of his left eye. Dr. Tufty indicated no opinion as to whether Mr. Williams could safely operate a motor vehicle with corrected vision.
Dr. Van Michael Ardoin testified that in his opinion Mr. Williams could not safely operate a motor vehicle if his |scorrected visual acuity was 20/40 and he had a horizontal visual field of his left eye of 20 degrees temporal and 10 degrees nasal. In contrast, Dr. Paul J. Azar, Jr. testified that he would render an opinion that Mr. Williams could safely operate a motor vehicle if his corrected visual acuity was 20/40 and his horizontal field of vision was 20 degrees temporal and 10 degrees nasal in the left eye.
The Form 2002 completed by Dr. Lionel E. Boudreaux dated January 8, 1997, reflects that Mr. Williams had a corrected visual acuity of 20/40 — 2 and a horizontal field of vision of his left eye of 80 degrees temporal and 50 degrees nasal. Dr. Boudreaux determined that Donald Williams could safely operate a motor vehicle.
The uncontradicted testimony of Dr. Azar was that it is medically impossible for Mr. Williams’ horizontal field of vision to improve from 20 degrees temporal and 10 degrees nasal in September 1996 to 80 degrees temporal and 50 degrees nasal on January 8, 1997. Dr. Azar concluded that either the test result of September 1996 was in error or the test result of January 8,1997, was in error. The discrepancy of the tests could not be resolved. Dr. Azar testified that it was impossible for him to determine which test result was in error. Dr. Azar also testified that an individual with a corrected visual acuity of 20/40— 2 and a horizontal field of vision of the left eye of 80 degrees temporal and 50 degrees nasal could safely operate a motor vehicle.
The August 8, 1996, medical notation of Donald Williams’ treating ophthalmologist, Dr. Laurence W. Arend, indicated that Mr. Williams’ horizontal field of vision was “mildly constricted.” This medical record tends to support the horizontal field of vision recorded by Dr. Lionel E. Boudreaux on January 8,1997.
Because of the discrepancy in the horizontal field of vision reported by Dr. Tufty during September 1996 and reported by Dr. Boudreaux on January 8, 1997, this court can not determine that it is more probable than not that an eye specialist would have determined that Mr. Williams had a horizontal field of vision in his left eye of 20 degrees temporal and 10 degrees nasal at the time of his application to renew his license during January 1993. It is equally probable that Mr. Wilhamsf] horizontal field of vision was 80 degrees temporal and 50 degrees nasal.
Furthermore, even if this court could determine that it is more probable than not that Mr. Williams had a corrected visual acuity of 20/40 and a horizontal field of vision of his left eye of 20 degrees temporal and 10 degrees nasal, the trial court could not conclude that it is more likely than not that an examining eye specialist would have rendered an opinion that Mr. Williams could not operate a motor vehicle safely with corrected vision, or rendered an opinion that greater restrictions should be added to his driver’s license. Doctors Ar-doin and Azars [sic] rendered conflicting opinions, and Dr. Tufty declined to render an opinion. Based upon the testimony of Dr. IsArdoin and Dr. Azar the trial court can not give greater weight to the testimony or opinion of either testifying expert. The trial court determines that both testifying experts were qualified by education and experience, both experts set forth reasonable facts, data and medical knowledge underlying their respective opinions and both testifying experts were credible.
The opinions of four ophthalmologists were presented to the trial court concerning whether Donald Williams could safely operate a motor vehicle. Dr. G.T. Tufty offered no opinion. Dr. Van Michael Ardoin was of the opinion that Mr. Williams could not safely operate a motor vehicle. Dr. Paul J. Azar, Jr. and Dr. Lionel E. Boudreaux were of the opinion that Donald Williams could safely operate a motor vehicle. Because of the conflicting opinions of these doctors, the trial court determines that the issue of whether Donald Williams could safely operate a motor vehicle is one which ophthalmologists may reach different opinions.
For the foregoing reasons, the trial court can not conclude that it is more likely than not [that] an eye specialist examining Mr. Williams in January 1993 would have determined that Mr. Williams could not safely operate a motor vehicle.
Poliey/Procedure Statement # 9.0 states that “applicants blind in one eye, with or without corrective lenses, must have 20/40 vision in the good eye.” Applicants failing to meet this standard must be referred to a vision specialist of the applicant’s choice.
Form 2002, the Driver Vision Test, requests that the vision specialist include suggested restrictions and limitations upon the applicant’s driver’s license. Policy/Procedure Statement # 9.0 provides that if an applicant blind in one eye presents a completed Driver Vision Test from any eye specialist and whose vision is 20/50 to 20/70, with or without glasses or contact lenses, the examining officer of the Department of Motor Vehicles may impose limited driving privileges, daylight driving only and/or any other restrictions recommended by the eye specialist.
Policy/Procedure Statement # 23.0 states:
Specialist reports indicating that an applicant’s vision acuity in one eye or both eyes cannot be improved better than 20/50 to 20/70 may be given limited driving privileges. Restriction 03 will always be given with this acuity. In the usual case, an 01 restriction will be required and other restrictions if applicable.
The evidence proves that Donald Williams was issued a driver’s license with restrictions of 01, 03 and 04. Restriction 01 requires that Mr. Williams must wear eye glasses or contact lenses while driving. Restriction 03 requires that Mr. Williams’ vehicle have an outside, rearview mirror on the driver’s side of the vehicle. Restriction 04 recognizes that Mr. Williams’ vision could not be improved.
hnThe evidence proves that Donald Williams was wearing corrective lenses at the time of the accident. The remaining two restrictions are not relevant to the causation of the accident.
The evidence also proves that neither the Form 2002 prepared by Dr. Tufty on September 9, 1996, nor the Form 2002 prepared by Dr. Boudreaux on January 8, 1997, included any suggested restrictions or limitations. Furthermore, Dr. Paul Azar, Jr. testified that if an applicant had a visual acuity less than 20/40, he would recommend the following restrictions:
a. No driving during night.
b. Driving only within 25 miles of home.
c. No driving on interstate highways.
d. Side rearview mirrors.
Based upon this evidence, the trial court can not conclude that it is more probable than not that an eye specialist examining Mr. Williams in January 1993 would have suggested greater restrictions than Restrictions 01, 03, and 04. Furthermore, even if greater restrictions were placed upon Mr. Williams’ driver’s license, it is more likely than not that such restrictions would be similar to the restrictions opined by Dr. Azar, which would not have prevented the accident. The evidence proves the accident occurred during the daylight, within 25 miles of Mr. Williams’ home and on a secondary highway.
In summary, the court can not conclude that it is more likely than not that an eye specialist examining Mr. Williams in January 1993 would have determined that Mr. Williams could not safely opei'ate a motor vehicle; nor can the court conclude that it is more probable than not that an eye specialist would have recommended greater restrictions be imposed upon Mr. Williams’ driver’s license. It is for these reasons that the court determines that the State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles was not at fault in causing damages to the petitioners.

The trial court’s well-reasoned decision for ruling that no fault could be assessed to the State for causing the accident at issue in this case, was based on his conclusion that it was not proven by a preponderance of the evidence that any omission by the State caused this accident. After a thorough review of the record presented on appeal, we are unable to say that a reasonable factual basis does not exist for the finding of the trial court on this issue.

To the contrary, Dr. Arend, Dr. Ardoin, and Dr. Azar all testified that, despite his visual impairment, there was no reason Mr. Williams could notlnhave seen a vehicle stopped partially in his lane of travel if he had been looking straight ahead. Mr. Williams admitted at trial that at the time of the accident his attention was focused on a truck hauling a trailer that was approaching his vehicle in the opposite or oncoming lane of travel, and that he was not paying attention to his own lane of travel.

The trial court found that any restrictions that would have been placed on Mr. Williams’ driver’s license following referral to an eye specialist were already imposed by the State on the driver’s license actually issued to Mr. Williams. Thus, the court found that any breach of duty by the State, in failing to order an additional eye examination prior to issuing Donald Williams’ driver’s license, did not cause the accident. The court found as a matter of fact that Mr. Williams could have seen the plaintiffs and their vehicles upon the roadway, but due to his inattention failed to do so, and that this inattention by Mr. Williams was the primary cause of the accident. We find no error in the dismissal of the claims against the State. Assessment of 70% Fault to Donald Williams

Mr. Williams asserts in brief to this court that the State should have been assessed some portion of fault for the accident, and that he and the plaintiffs should at least have been assessed with equal fault. Mr. Williams claims that the plaintiffs “bear an equal responsibility, having parked one | ^vehicle slightly in the roadway and by standing a foot and a half into the road when ample room existed to be off the road.”

In his reasons for assessing Mr. Williams with 70% percent fault and each plaintiff with 30% fault, with respect to his own injuries, the trial court stated as follows:

Dr. Paul Azar, Jr. testified that if Donald Williams’ visual acuity was 20/50 with a horizontal field of vision of 20 degrees temporal and 10 degrees nasal of the left eye, that Mr. Williams could see a motor vehicle at a distance of one mile, and see people at a distance of one-half mile. The evidence proves that the roadway was straight for a distance greater than one mile at the site of the accident. Donald Williams testified during examination by [counsel] that “I wasn’t paying attention to what was going on directly in my lane.” The testimony of Trooper Darryl Williams proves that Allie Bergeron and Patrick Pelleg-rin were standing approximately one foot, five inches within the travel lane occupied by Mr. Williams’ vehicle.
For these reasons, the trial court concludes that Donald Williams was at fault in the causation of the accident.
* * *
.. .The testimony of Trooper Darryl Williams proves that the shoulder of the highway at the site of the accident had adequate width for Mr. Bergeron and Mr. Pellegrin to park their vehicles and still have room to stand on the shoulder rather than on the roadway.
Based upon this evidence the court determines that Allie Bergeron and Patrick Pellegrin were also at fault in the cause of the accident. The court determines that Donald Williams was seventy pei'cent at fault, and Allie Bergeron and Patrick Pellegrin were each thirty percent at fault.

As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault; therefore, an appellate court should only disturb the trier of fact’s allocation of fault when it is clearly wrong or manifestly erroneous. Duncan v. Kansas City Southern Railway Co., 2000-0066, pp. 10-11 (La.10/30/00), 773 So.2d 670, 680. Based on the evidence presented to the trial court, we cannot say the assessment of 70% fault to Donald Williams in causing this accident was error.

Subrogation Claim of Audubon Against Donald Williams

|13Mr. Williams asserts on appeal that the trial court erred in awarding Audubon $1,000,000 against him on its claim of sub-rogation. In support of this assertion, Mr. Williams argues that the Audubon policy provisions do not provide subrogation under the circumstances of this case, and that alternatively, Audubon failed to prove all the elements of its subrogation claim.

With respect to uninsured/underinsured motorist coverage, LSA-R.S. 22:680(4) provides for subrogation in favor of the insurer as follows: “In the event of payment to any person under the coverage required by this Section and R.S. 22:1406 and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of. any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for 'the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.” (Emphasis added.)

The general provisions of the Audubon commercial automobile policy issued to plaintiffs’ employer provided as follows:

TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US
If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after “accident” or “loss” to impair them.

The policy endorsement entitled “Louisiana Uninsured Motorists Coverage — Bodily Injury” contained the following additional provisions:

CHANGES IN CONDITIONS
The CONDITIONS are changed for UNINSURED MOTORISTS COVERAGE as follows:
ju3. TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO U.S. does not apply to vehicles described in paragraph b. of the definition of “uninsured motor vehicle”.
TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO U.S. is changed by adding the following:
If we make any payment and the “insured” recovers from another party, the “insured” must hold the proceeds in trust for us and pay us back the amount we have paid. We shall be entitled to subrogation only after the “insured” has been fully compensated for damages by another party.

(Emphasis added.) An “uninsured motor vehicle” is defined by the policy as follows:

“Uninsured motor vehicle” means a land motor vehicle or trailer:
a. For which no liability bonds or policy at the time of an “accident” provides at least the amounts required by the applicable law where a covered “auto” is principally garaged;
b. Which is an underinsured motor vehicle. An underinsured motor vehicle means a land motor vehicle or trailer to which a liability bond or policy affording coverage for “bodily injury” applies at the time of the accident but the amount paid for “bodily injury” under that bond or policy to an “insured” is not enough to pay the full amount the “insured” is legally entitled to recover as damages;
c. For which an insuring or bonding company denies coverage or is or becomes insolvent; or
d. Which is a hit-and-run vehicle and neither the driver nor owner can be identified....

(Emphasis added.)

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). See also Jenkins v. CNA Ins. Co., 98-0022, pp. 4-5 (La.App. 1 Cir. 12/28/98), 726 So.2d 71, 74. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular | ^meaning of the words used in the policy, unless the words have acquired a technical meaning. Id. Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Id.

The subrogation available to an uninsured motorist carrier under LSA-R.S. 22:680(4) is by its own provisions “subject to the terms and conditions of such coverage.” The terms and conditions of the Audubon policy clearly and unambiguously state that the “TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO U.S.” does not apply to vehicles described in paragraph b. of the definition of “uninsured motor vehicle.” Paragraph b. describes “an underinsured motor vehicle.” Since Mr. Williams’ vehicle was an under-insured motor vehicle, Audubon, in the provisions of the policy of insurance it issued, covering the plaintiffs, opted not to obtain the contractual subrogation of claims against underinsured motorists. Therefore, we find that the trial court erred in making an award to Audubon against Mr. Williams on the basis of subro-gation.

CONCLUSION

For the reasons assigned, we reverse the judgment of the trial court in favor of Audubon Indemnity Company against Donald Williams, and hereby dismiss the claims asserted by Audubon Indemnity Company against Donald Williams; in all other respects, the judgment of the trial court is affirmed. Audubon Indemnity Company is to bear the costs of Donald Williams’ appeal; the remaining appellants are to bear their own costs of this appeal.

REVERSED IN PART; AFFIRMED IN PART.

      . Mr. Bergeron suffered a traumatic amputation of his left leg below the knee, dislocation of his right leg, a crushed pelvis, a fractured left shoulder, a fractured neck, and other internal injuries. Mr. Bergeron required numerous post-accident surgeries to treat his injuries, including an above-the-knee surgical amputation of the left leg. Mr. Pellegrin suffered a closed head injury, broken legs, broken left arm, broken pelvis, and broken ankle. He also required numerous post-accident surgeries.

      . Following resolution of this issue by summary judgment against the LWCC, their claims were dismissed as to the plaintiffs and Audubon. The judgment of the trial court finding that the Audubon policy excluded reimbursement of workers' compensation benefits either directly under the policy or from the insureds was affirmed by this court in Bergeron v. Williams, 99-0886 (La.App. 1 Cir. 5/12/00), 764 So.2d 1084, writ denied, 2000-1697 (La.9/15/00), 768 So.2d 1281.

      . Mr. Williams does not assert that the fact that plaintiffs had subrogated some part of their claim for damages to Audubon was concealed from him.

      . We find the case cited by appellants, Bozeman v. Reed, 92-0858 (La.App. 1 Cir. 3/11/94), 633 So.2d 944, to be distinguishable on its facts and therefore not authoritative in the instant case. In Bozeman v. Reed, the motorist/tortfeasor was suffering from multiple sclerosis, which is a progressively degenerative disorder that can impact the sufferer’s ability to respond quickly and smoothly to a motorist's crisis. 633 So.2d at 952. In that case, the trial court found that the State’s failure to request a detailed medical report on the tort-feasor's known condition prior to renewal of his driver’s license, was a cause-in-fact of the accident; this court could find no manifest error under the facts of that case. 633 So.2d at 949-50. Causation was found in Bozeman v. Reed relating the omission of the State to the occurrence of the accident at issue. However, in the instant case, the factfinder determined that the inattention of the motorist/tortfeasor, along with the negligence of the plaintiffs in positioning themselves on the edge of the roadway, caused the accident; any omission by the State was not found to be a causative factor in the accident.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Robert DUBOSE v. The PLANT DEPOT.
    No. 2005-CA-1149.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 2006.
    Triseelyn Landor-McDonald, Trinity Law Center, L.L.C., New Orleans, LA, for PlaintifflAppellee.
    Val P. Exnicios, Liska, Exnieios & Nun-gesser, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

_JjThis is a workers’ compensation case. On February 1, 2001, the Office of Workers’ Compensation (OWC) rendered a default judgment awarding workers’ compensation benefits to Robert Dubose. However, the default judgment was not rendered against his employer, the Plant and Palm Depot, Inc. Rather, the judgment was rendered against the Plant Depot, the entity Mr. Dubose incorrectly named as his employer in his 1008 claim. To correct the error, Mr. Dubose filed a motion to amend the default judgment. The Plant and Palm Depot not only opposed the motion, but also filed an exception of prescription. The OWC overruled the exception of prescription and granted the motion to amend. From that judgment, the Plant and Palm Depot appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 4, 2000, Mr. Dubose allegedly was injured in the course and scope of his employment with the Plant and Palm Depot. On August 15, 2000, Mr. Dubose timely filed a 1008 claim with the OWC seeking workers’ compensation benefits. As noted, Mr. Dubose erroneously listed his employer as the Plant RDepot. A mandatory mediation conference was scheduled for November 3, 2000, and Mr. Dubose’s employer was represented at the conference by Jimmy Costello. At the mediation conference, Jimmy Costello signed as agent for the Plant Depot and waived service and citation.

On December 28, 2000, the matter proceeded to trial, but no one appeared on behalf of the employer. As noted, on February 1, 2001, the OWC rendered a default judgment against the Plant Depot awarding workers’ compensation benefits to Mr. Dubose. On August 17, 2004, Mr. Dubose filed a Motion to Amend 1008 and/or Motion to Enforce Judgment with the OWC. In response,- the Plant and Palm Depot filed an exception of prescription and an opposition to Mr. Dubose’s motion to amend.

On December 1, 2004, a hearing was held on this matter. On December 14, 2004, the OWC rendered judgment denying the exception of prescription and granting the motion to amend the default judgment to correctly name the employer as the Plant and Palm Depot, Inc., d/b/a Plant Depot. In its reasons for judgment, the OWC recited the following findings of fact:

Claimant filed a 1008 against “Plant Depot” ATTN: Jimmy Costello.” At the mediation conference, Jimmy Costello appeared and signed as agent for “Plant Depot” and waived Service and Citation. The “Plant Depot” had no workers’ compensation insurance in effect at the time of the accident.
|,Jimmy Costello allowed claimant to confirm a default judgment against the “Plant Depot.” After Notice of Judgment, defendant did not file for a New Trial nor an Appeal.
Only when claimant sought to enforce the judgment did an attorney for the “Plant & Palm Depot, Inc.” appear challenging the judgment and any attempts to correct the defendant’s true name to “Plant & Palm Depot, Inc. d/b/a the Plant Depot.”
The “identity” of the defendant was certain. The identity was “Plant Depot” which was a d/b/a of “Plant & Palm Depot, Inc.” All actions by and pertaining to the “Plant Depot” was by Jimmy Costello, who was one of the directors of the “Plant & Palm Depot, Inc.” Jimmy Costello was the same one who did not purchase workers’ compensation insurance and who failed to keep the “Plant & Palm Depot, Inc.” in good standing with the Louisiana Secretary of State. Hence, correcting the defendant’s name from the “Plant Depot” to the “Plant & Palm Depot, Inc. d/b/a the Plant Depot,” is of little moment.” Wagenvoord [Broadcasting Co. Inc. v. Rurton Blanchard, 261 So.2d 257 (La.App. 4 Cir.1972) ].

This timely appeal followed. On appeal, the Plant and Palm Depot argue the OWC erred in (i) allowing Mr. Dubose to alter the default judgment, (ii) failing to impose the burden of proof on Mr. Dubose to show that he worked for the Plant and Palm Depot, and (iii) denying its exception of prescription.

DISCUSSION

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Const., 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. In applying the manifest error or clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Hudson v. Housing Authority of New Orleans, 2004-0744, p. 7 (La.App. 4 Cir. 10/27/04), 909 So.2d 607, 611, citing Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164. Where two permissible views of the evidence exist, a fact Rfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556.

Assignment of Error No. 1: Error in Amending Judgment

The Plant and Palm Depot submits that the amendment of the default judgment by the OWC to correct the name of the employer is a substantive change prohibited by La. C.C.P. art. 1951. Based on our review of the record, we find the OWC correctly applied the procedural law regarding the amendments of judgments. In this regard, the OWC stated in its reasons for judgment:

[T]he analysis (and which is consistent with all case law on this point of changing the defendant’s name) revolves around a fact determination. Specifically, was the party who was served, who was aware of the lawsuit, who chose to defend or ignore the demands and/or lawsuit, who was involved in the actions that were the basis of the cause of action of the lawsuit — was that party the one and the same in reality as the defendant whose name was misspelled or incorrect on the judgment?
In cases where the answers to these questions was “no,” then the change of the name of the defendant was a “substantive change” and therefore could not be changed in a final judgment.
In cases where the answer to those questions were “yes,” then the change of the name was not substantive. See Wagenvoord, supra; and Sherman[Shearman] v. Simpson, (3rd C.A.La.1972) 264 So.2d 713; and Thompson v. Matthews, (4th C.A.La.1979)[,] 372[374] So.2d 192.
Succinctly stated, “Was the identity of the defendant fixed with certainty” so that the error in spelling his name (or incorrect name) is of little moment?

1 ,The jurisprudence the OWC cited accurately reflects that when the identity of the defendant is fixed with certainty, the amendment of the judgment to correctly reflect the name of the defendant is not a substantive change. Thompson, 374 So.2d at 193. In the present case, the record supports the OWC’s factual finding that the identity of the employer was certain. Therefore, we find no error in the OWC’s decision to allow the default judgment to be amended.

Assignment of Error No. 2: Failure to Impose Burden of Proof on Mr. Dubose

The Plant and Palm Depot argues that at no time during the trial or pretrial proceedings did Mr. Dubose allege or establish that he worked for it. This appeal, however, relates solely to the issue of Mr. Dubose’s error in naming his employer in the petition. The merits of the underlying workers’ compensation claim are not at issue. Regardless, the Plant and Palm Depot has never disputed that Mr. Dubose worked for the business entity operated by Mr. Costello, which was the Plant and Palm Depot.

Assignment of Error No. 3: Failure to Grant the Exception of Prescription.

The Plant and Palm Depot argues that Mr. Dubose’s claim has prescribed pursuant to La. R.S. 23:1209, which requires an injured employee to file a formal complaint with the OWC within one year from the date of the accident. Mr. Dubose filed his initial workers’ compensation complaint within days of the accident. We do not find, nor does the Plant and Palm Depot cite any authority to support the argument, that Mr. Dubose’s subsequent request to amend the judgment falls within the parameters of the prescriptive period found in La. R.S. 23:1209.

| ¿DECREE

For the foregoing reasons, the judgment of the OWC denying the Plant and Palm Depot’s exception of prescription and granting Mr. Dubose’s motion to amend is affirmed.

AFFIRMED.

      . At the hearing in this matter, Mr. Dubose introduced a business card for the Plant Depot, which listed Jimmy Costello as the owner of the business.

      . Jimmy Costello is listed as one of two directors for the Plant and Palm Depot, Inc. in the corporation's "Domestic Business Corporation Initial Report.” Mr. Costello was also Mr. Dubose's immediate supervisor on the job.

      . Thereafter, Mr. Dubose filed a Petition to Recognize Judgment in the 24th Judicial District Court for the Parish of Jefferson. The petition was dismissed, however, because the name of the defendant was incorrectly listed in the default judgment.

      . The judgment further ordered the claimant's attorney to prepare the Amended Judgment. That judgment, dated February 2, 2005, reiterates the specifics of the Default Judgment regarding the award of compensation benefits.

      . La. C.C.P. art. 1951 provides: "A final judgment may be amended by the trial court at anytime, with or without notice, on its own motion or on motion of any party: (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.”


author: CHARLES R. JONES, Judge.

text:
    Jeff LAZARO v. NEW ORLEANS BRASS (Employer), Louisiana Insurance Guaranty Association and Gab Robins Risk Management Services, Inc.
    No. 2005-CA-0591.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 26, 2006.

      Robert L. Hackett, The Hackett Law Firm, Atlanta, GA, for Plaintiff/Appellant.
    Diana L. Tonagel, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

| tThis present matter arises out of a suit for disability payments. The Appellant, Jeff Lazaro, appeals the judgment of the Office of Workers’ Compensation, which denied acceleration of his benefit payments and statutory attorneys’ fees. WE AFFIRM.

FACTS AND PROCEDURAL HISTORY

Mr. Lazaro was a professional hockey player for The New Orleans Brass (hereinafter the “NOB”). On or about January 3, 2002, Mr. Lazaro suffered an injury during a hockey game. Mr. Lazaro later filed a claim under the Louisiana Workers’ Compensation Act, L.S.A. 23:1021, et seq.

However, once Mr. Lazaro’s eligibility for Supplemental Earnings Benefits (hereinafter “SEB”) was determined, he alleges that the NOB and its insurer 12failed to forward payments. Mr. Lazaro subsequently filed a Motion to Accelerate Payments of Supplemental Earnings Benefits with the Office of Workers’ Compensation {hereinafter the “OWC”) on December 9, 2003. In Ms Motion, Mr. Lazaro averred that the ease on the merits concerning his eligibility for benefits resulted in a final judgment, signed on September 26, 2003. The Motion incorporates the provisions of the same judgment, which specifically awarded Mr. Lazaro SEBs, payable to him by the NOB from February 2, 2003, forward. The judgment further instructed Mr. Lazaro to provide earnings information to the NOB and its Workers’ Compensation carrier/insurer, Villanova Insurance Company (hereinafter “Villanova”), from February 2, 2003, forward. The judgment also indicated that Mr. Lazaro carried his burden of proof that he was permanently disabled and unable to return to his job as a hockey player as of February 8, 2003, and that he was unable to earn at least 90% of his former wages as a hockey player.

Mr. Lazaro’s Motion also indicated that the judgment became final for purposes of execution on October 26, 2003. Around this time, both parties filed devolutive appeals.

Nevertheless, Mr. Lazaro averred that he made several demands for payment of the SEBs from the NOB and its insurer, Villanova, but he indicated that the NOB and Villanova instead demanded that certain “1020 Forms” be submitted to them prior to paying the SEBs. Correspondence is contained in the record which reflects that the NOB would not forward payment to Mr. Lazaro because the “1020 [,.¡Forms” were needed to make unspecified deductions from the payments before forwarding any monies to Mr. Lazaro.

However, Mr. Lazaro’s Motion argued that the “1020 Form” provides that the Claimant would not have any responsibility to file the form unless and until the employer pays benefits in accordance with the law. Hence, Mr. Lazaro argues that the NOB’s failure to tender payment is a default which gives him the right to accelerate payment in accordance with La. R.S. 23.T333. He also alleged that such a failure to pay on the part of the NOB, through their insurer, was a “willful refusal” to pay.

The NOB subsequently filed a Motion to Reduce Benefits for Failure to Cooperate with Vocational Rehabilitation on December 10, 2003. In the Motion, the NOB alleged that Mr. Lazaro had been uncooperative in scheduling vocational rehabilitation with the vocational rehabilitation counselor, Ms. Dawn Ferriday. However, the Motion also indicated that Mr. Lazaro’s counsel allegedly informed the NOB that Mr. Lazaro was happy with his new job “selling insurance” and “was not willing to undergo vocational rehabilitation.” The NOB argued, therefore, that pursuant to L.A. R.S. 23:1226(E), that Mr. Lazaro’s benefits were subject to reduction.

On December 23, 2003, the NOB filed a Motion to Stay All Office of Workers’ Compensation Proceedings and Appeal, on the basis that Mr. Lazaro did not file the “1020 Forms,” as he was required by the OWC judgment of September 26, 2003. The NOB indicated that upon receipt of the forms from Mr. Lazaro, it forwarded same to the adjuster at GAB Robins Risk Management, (hereinafter “GAB”) the third-party administrator of Villanova. However, around the same time, the NOB was notified that their Workers’ Compensation carrier at the time of Mr. Lazaro’s accident, Villanova, had been ordered into liquidation. As a result of the liquidation order, Villanova had been declared defunct as of July 25, 2003.

On December 23, 2003, Mr. Lazaro in turn filed a Declinatory Exception of Lack of Jurisdiction Relative to Employer’s Motion to Reduce Benefits for Failure to Cooperate with Vocational Rehabilitation. In the Exception, Mr. Lazaro argued that the court had been divested of jurisdiction in the matter as set forth by Articles 925 and 2088 of the Louisiana Code of Civil Procedure. Additionally, Mr. 15Lazaro also filed a Motion for Summary Judgment on the same date. In his Motion, he alleged that there were “no questions of material fact relative to his demand for acceleration of Supplemental Earnings Benefit payments” as the NOB failed to make payments to him for over ten (10) months, and the payments were now subject to statutory acceleration. Attached to the Motion is an affidavit in which Mr. Lazaro attested to the fact that he submitted “all of his earnings records for all amounts earned since his career ending injury which occurred in January, 2002.” He further indicated that his earnings records were com-píete and that figures represented by the individual check stubs showing the amount of the individual checks were true and correct, and represented “gross amounts actually paid to Claimant since he was last paid salary by his employer through March, 2002.”

On the same date, Mr. Lazaro also filed his Opposition to Motion to Reduce Benefits for Failure to Cooperate with Vocation Rehabilitation. The Motion claimed in part that Mr. Lazaro had in fact contacted the NOB’s contract rehabilitation counsel- or, Cindy A. Harris, of Medinsight’s Inc., and that he believed that the NOB was merely delaying its obligation to pay the benefits through its Motion to Reduce Benefits.

LThe NOB filed a Memorandum in Opposition to Claimant’s Motion to Accelerate Payments of Supplemental Earnings Benefits on April 23, 2004. The motion claimed in part that Mr. Lazaro’s Motion to Accelerate Payments incorrectly represented that the NOB and their Insurer failed to pay benefits. The NOB pointed out that Mr. Lazaro never named the NOB’s insurer as a party defendant, and that the subject judgment, which awarded the SEB payments, was rendered solely against the NOB. The NOB further indicated that although they did not suspen-sively appeal the judgment, Mr. Lazaro’s Motion to Accelerate Payments incorrectly states that the “Employer/Insurer” chose not to appeal. Again, the insurer was not named as a party.

The NOB’s memorandum further indicated that although Mr. Lazaro had the legal right to proceed against its insurer, Villanova had been placed into receivership/liquidation by order entered on July 25, 2003.

Finally, the memorandum also indicated that the judgment which granted Mr. Lazaro’s SEBs did not set a fixed amount because of the failure of Mr. Lazaro to provide needed information. The NOB pointed out the OWC did recognize that Mr. Lazaro’s wage information needed to be provided to the NOB “from February 8, 2003 forward” and that “such information is required to be submitted on Form 1020....” However, the NOB indicated that Mr. Lazaro had not submitted his wage information as required, and as a result of this failure, Mr. Lazaro had not met his burden of proving that the NOB’s refusal to pay the SEBs was not a “willful refusal.”

|7By an Order dated January 7, 2004, the OWC, stayed the case for sixty (60) days due to the instigation of liquidation proceedings involving Villanova Insurance. Mr. Lazaro subsequently filed a Motion and Order to Reinstate Claim to Trial Docket on March 11, 2004, after the sixty (60) days expired. The matter was returned to the active OWC trial docket on March 17, 2004.

Another Order was signed by the OWC on April 29, 2004, that transferred all post-trial issues from the OWC case number 02-04545, to a new case number, 04-03553, since the post-judgment matters were filed on or after December 9, 2003.

Mr. Lazaro subsequently filed a Petition on May 20, 2004 in which he named the Louisiana Insurance Guaranty Association (,hereinafter “LIGA”) and GAB, the third party administrator, as defendants. In the Petition, Mr. Lazaro alleged that GAB “failed to provide the services, duties, and requirements as set forth by State law at La. R.S. 22:3031, et. seq ...” and that LIGA, by statutory mandate, is obligated to provide coverage in the case of a liquidated insurer.

LIGA answered the Petition and denied all of the allegations contained in Mr. Lazaro’s Petition. Specifically, LIGA responded that Mr. Lazaro failed to properly provide a notice of claim, and that he failed to satisfy the statutory requirements regarding notice of execution of judgment. As to medical payments, LIGA also denied that it was responsible for Mr. Lazaro’s medical payments in excess of $750.00, because the treatment he obtained was received without prior approval from the NOB. LIGA also averred an affirmative defense with respect to the “coverage” that Mr. Lazaro argued was statutorily mandated, and LIGA also | saverred an affirmative defense with respect to Mr. Lazaro’s entitlement to workers’ compensation benefits, or private disability benefits funded by the NOB. Finally, LIGA averred an affirmative defense with respect to Mr. Lazaro’s entitlement to benefits and further claimed that he “engaged in conduct in violation of Section 1208 of the Louisiana Workers’ Compensation Act thereby forfeiting his entitlement to any benefits he may have otherwise been entitled to under the Louisiana Workers’ Compensation Act.”

In response to Mr. Lazaro’s Petition, GAB filed an Exception of No Cause of Action on the grounds that the Louisiana Workers’ Compensation Act “does not afford a cause or right of action against third-party administrators by worker’s compensation claimants.”

On June 15, 2004, some months after Mr. Lazaro filed the Motion to Accelerate Payments, LIGA paid him the sum of $10,021.53, which represented the Supplemental Earnings Benefits for the time period specified by the September 26, 2003 judgment.

Mr. Lazaro then filed his First Stipple-mental and Amending Petition on June 27, 2004, in which he averred his status as a “third party beneficiary” pursuant to a contract which existed between GAB, as third-party administrator, and Villanova Insurance Company. Additionally, he claimed that he was denied notice as required by Title 23 and R.S. 22:3031, et seq., and as a result had suffered lengthy delays in payment of his workers’ compensation benefits. Mr. Lazaro also pointed out that his claim was impeded due to the fact that all of the adverse parties were represented by the same attorney, to his detriment. Mr. Lazaro then sought to [shave the firm of Rabalais, Unland, & Lorio disqualified from the ease via Motion filed on June 21, 2004.

On June 23, 2004, Mr. Lazaro filed an Opposed Motion and Order to Continue and Refix GAR Robins Risk Management Services, Inc. Exceptions of No Right/ Cause of Action to have the Motions filed by GAB continued and reset for hearing. Mr. Lazaro subsequently filed a Motion for Expedited Hearing and on July 15, 2004. The case was subsequently heard on July 19, 2004.

After a hearing on all matters, the OWC entered two (2) “Final Judgments” in the case on July 23, 2004. The first judgment specified the following: (1) that Mr. Lazaro’s Motion to Disqualify the law firm from representing both LIGA and the NOB was DENIED; (2) the Motion to Strike GAB’s Exception of No Cause of Action and in the alternative to Compel Discovery would not be heard due to insufficient notice; (3) GAB’s Exception of No Cause and Right of Action was GRANTED; (4) Mr. Lazaro’s Exception to Reduce Benefits for Failure to Cooperate with Vocational Rehabilitation was DENIED; (5) the NOB’s Motion to Reduce Benefits for Failure to Cooperate with Vocational Rehabilitation was taken under advisement; and (6) Mr. Lazaro’s Motion to Accelerate Benefits was DENIED due to Mr. Lazaro’s failure to carry his burden of proof with respect to showing that the NOB’s failure to pay was a “willful refusal to pay,” and that six consecutive installments were not due before the motion to accelerate was filed.

The second judgment, issued on July 23, 2004, as well, denied the NOB/LIGA’s Motion to Reduce Workers’ Compensation Benefits for failure to cooperate with vocational rehabilitation.

| ^Subsequently, an Order was signed on July 26, 2004, which, again, denied the NOB/LIGA’s Motion to Reduce Workers’ Compensation Benefits for failure to cooperate with vocational rehabilitation. Additionally, the Order directed Mr. Lazaro to participate in vocational rehabilitation, “if the defendant desires to set it up.” This timely appeal followed.

Specifically, Mr. Lazaro cites three assignments of error in his brief: 1) he argues that the OWC erred in dismissing his claims against GAB; 2) he argues that all penalties, interest, and fees be paid or, in the alternative, that the September 26, 2003, judgment (to date) and penalties be paid; and finally, 3) he argues that the OWC erred in not disqualifying the law firm which represented the NOB and LIGA.

Law and Discussion:

I. GAB’S EXCEPTION OF NO CAUSE/ RIGHT OF ACTION

By his first assignment of error, Mr. Lazaro argues that the OWC erred in dismissing his claims against GAB, thereby sustaining GAB’s Exceptions of No Cause/Right of Action.

We reiterated the standard of review for an Exception of No Cause of Action in Southern Tool Supply, Inc. v. Beerman Precision, Inc., 03-0960 (La.App. 4 Cir. 11/26/03), 862 So.2d 271, 277 as follows:

We review a trial court’s decision on an exception of no cause of action de novo “because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition.” City of New Orleans v. Board of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In so doing, we are confined to the allegations of the [ npetition. No evidence can be introduced to support or to controvert an exception of no cause of action. La. C.C.P. art. 931. Rather, we must accept as true the well pleaded factual allegations set forth in the petition. Based thereon, our job is to determine “whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). A defendant’s peremptory exception of no cause of action is designed to test the legal sufficiency of the plaintiffs petition. It poses the question “whether the law affords a remedy on the facts alleged in the pleading.” Id.

Southern Tool Supply, Inc. v. Beerman Precision, Inc., 862 So.2d at 277-278.

Similarly, the determination of whether the plaintiff has a right of action is [also] a question of law. Ralph v. City of New Orleans, 04-1270 (La.App. 4 Cir. 12/14/05) 921 So.2d 988, 995-96, citing Horrell v. Horrell, 99-1093, (La.App. 1 Cir. 10/6/00), 808 So.2d 363, 367-68. Appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. Ralph v. City of New Orleans, 921 so.2d at 996, citing Cangelosi v. Allstate Ins. Co., 96-0159, (La.App. 1 Cir. 9/27/96), 680 So.2d 1358.

The Supreme Court discussed the two exceptions at length in Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, at *2, 2006 WL 668724(La.), 929 So.2d 1211 (La.3/17/06), as follows:

Although these two exceptions are often confused or improperly combined with the same exception, the peremptory exceptions of no right of action and no cause of action are separate and distinct. La. C.C.P. art. 927(4) and (5); Industrial Cos., Inc. v. Durbin, 02-0665, p. 6 (La.1/28/03); 837 So.2d 1207, 1212. This court has recognized that one of the primary differences between the exception of no right of action and no cause of action lies in the fact that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant. Id.
The function of an exception of no right of action |1⅞⅛ a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927; Turner v. Busby, 03-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.
In contrast, an exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Industrial Cos., 02-0665 at p. 6, 837 So.2d at 1213. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Id. at p. 7, 837 So.2d at 1213; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1018 (La.1993). If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1236 (La.1993). Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Industrial Cos., 02-0665 at p. 7, 837 So.2d at 1213.

In the instant case, Mr. Lazaro’s Petition alleged that GAB “failed to provide the service, duties, and requirements set forth by State law at La. R.S. 22:3031, et seq.” In his Appellate Brief, Mr. Lazaro does not allege any wrong-doing by GAB for which a statutory remedy exists, nor does he specifically cite to any specific statute within the Workers’ Compensation Act which provides a civil remedy against GAB, as a third-party administrator. The general rule in Louisiana law is that an employee’s exclusive remedy for work-related personal injuries or occupational diseases is in Workers’ Compensation, not in tort. Zimko v. American Cyanamid, 03-0658 (La.App. 4 Cir. 6/8/05) 905 So.2d 465, 475, writ denied 925 So.2d 538, 2006 WL 1050043 (La.3/17/06) See La. R.S. 23:1032(A). Thus, Mr. Lazaro’s claims are limited to the compensation claims against his employer, the NOB, or its insurer, Villanova.

Additionally, in the instant case, Mr. Lazaro asserts his right to enforce a contract claim on the basis of a stipulation pour autri, in the alleged contract between GAB and the NOB’s insurer, Villanova. However, Villanova was never made a party to the original claim for benefits. Furthermore, we reiterate that Mr. Lazaro’s brief does not cite to any statute within the Workers’ Compensation Act which provides a civil remedy for an insurer’s third-party administrator’s failure to provide services.

The OWC in its oral reasons for judgment stated that “[a] plain reading of the statute obviously shows that you have no civil remedy in this particular case under these particular allegations.” Thus, based on the above discussion, we find that the OWC’s determination was legally correct in sustaining GAB’s exceptions of No Cause/Right of Action, and therefore find that this assignment of error is without merit.

II. ACCELERATION OF PAYMENTS, PENALTIES AND FEES

l.Acceleration of Payments:

In his second assignment of error, Mr. Lazaro alleges that the OWC erred in denying his Motion for Acceleration of Supplemental Earnings Benefits flowing from the September 26, 2003 judgment.

An appellate court may not set aside a district court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court has provided a two-part test for the reversal of a fact finder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of a trial court; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993); McElveen v. City of New Orleans, 03-1609, (La.App. 4 Cir. 9/14/04), 888 So.2d 878, 880-81.

Louisiana Revised Statute 23:1333 allows acceleration of workers’ compensation benefits under certain circumstances. Specifically, four statutory elements must be satisfied prior to accelerating a prior award of weekly benefits. They include: (1) an “award awarding compensation” against the employer, (2) “insolven[cy] or fail[ure] to pay six successive installments as they become due” by employer, (3) existence of “installments not yet payable under the award,” and (4) the employee is not “adequately protected by insurance and receiving] payments thereunder.” See Duncan v. State, DOTD, 615 So.2d 305 (La.1993); Davillier v. Transit Management of Southeast Louisiana, 97-2848 (La.App. 4th Cir.9/9/98), 718 So.2d 600.

Additionally, our jurisprudence has added another requirement, that the failure to pay be a “willful refusal.” Duncan, at 309; Davillier, 718 So.2d at 602. “Thus it is not enough for an employee to merely establish the employer’s failure to pay six successive installments as they became due. Rather, the employee must show that the employer’s failure to make the payments resulted from a willful refusal.” Duncan v. State, DOTD, 615 So.2d at 309.

11sAgain, we point out that initially, neither GAB nor LIGA were added as parties to the original claim for benefits. The record indicates that Mr. Lazaro had not pursued any claim against GAB nor LIGA, nor had he named GAB nor LIGA as defendants until he was informed of Villanova’s insolvency. Another important relevant fact is that Mr. Lazaro never added the NOB’s insurer to the initial claim for benefits. The OWC judge discussed this specific fact at the trial on July 19, 2004, in the following colloquy:

Court: But you never cared who the insurer was. You never brought them in.
Mr. Hackett: Didn’t have to until they told me on December 22nd of 2003 that the insurer went bankrupt — in liquidation, and there was no way they were going to pay; LIGA had to.
Court: Hasn’t your position always been that the New Orleans Brass is not insolvent, that they have assets?
Mr. Hackett: Their position. No. Their position is that they come into court and say defunct. I say, well, show us. And I have checked, and I don’t see any bankruptcy. What else can I do?
Court: I thought your position was that the New Orleans Brass has assets? No?
Mr. Hackett: Well, until they tell me differently, I have to assume that they may have. I don’t know that....

In the instant case, the OWC concluded that Mr. Lazaro did not prove that the employer failed to pay six successive installments as they became due. In open court, the OWC judge stated:

... [T]he reason the motion was denied is I am in agreement that six consecutive payments, installments has not been due before the motion was filed. I did look at the case that you [Mr. Lazaro] cited. I am in 1 ](iagreement with the defense’s interpretation of that case. That was a consent to pay weekly. The judgment here does not say anything about paying weeMy therefore, it would be paid monthly unless the parties agree otherwise.

The record itself reflects that the OWC judge was not convinced by Mr. Lazaro’s evidence presented in support of his Motion to Accelerate Benefits. In the oral reasons for judgment, the OWC judge stated:

... [The][c]laimant did not carry the burden of proof that defendant’s payment was a willful refusal to pay. It was a very serious issue as to what was owed under the judgment. We had discussions, we had meetings, we attempted to resolve what it was'. We were unable to accomplish that....
There was nothing that could have been paid by the employer who was allegedly defunct. The wrong insurer was thought to be in on the case the entire time. Then, we’re notified supposedly that Villanova is in there and is, in fact, in liquidation, and everybody was in a dilemma as to what was happening. ...

We also agree with the Appellees’ argument that there was no payment schedule set by the OWC or the respective parties via a consent judgment. The Appellees indicate that the February 8, 2003, judgment is silent with respect to the OWC tabulating a specific SEB payment due or establishing a corresponding payment schedule of the SEB award. The appeal record itself fails to shed any additional light on the complete payment activity in the instant case. Although the record contains documentation of earnings made by Mr. Lazaro by Cornerstone Marketing from as early as November 2002, through December 2003, the amounts of these payments vary from as little as $27.00, for a commission payment, to a $2,059.15 salary payment.

| ^Furthermore, the record also indicates that Mr. Lazaro did not timely submit wage documentation, or rather the 1020 Forms, to the NOB as was required by the February 8, 2003 judgment. While the Appellees contend that their requests for the 1020 Forms was required because certain deductions had to be made, the record does not have any copies of the 1020 Forms which were submitted to the NOB for processing. The only wage information contained in the record is Mr. Lazaro’s check stubs that he received from Cornerstone. The record indicates also that these payments were “advances” which would be subject to deductions once Mr. Lazaro submitted the corresponding 1020 Form for the payment period. However, the record nonetheless is silent with respect to the SEB award, in toto.

Nevertheless, in light of LIGA’s tendering payment of $10,021.53 to Mr. Lazaro on June 15, 2004, he maintained in his Reply Brief that “[sjimple mathematical calculation reveals that the judgment of the workers’ compensation court was not paid even as the judgment existed at the time of partial payment ... on 6/15/04. However, there is no discussion of calculation of payment or judicial interest.” He maintains that the payment of $10,021.53, merely constituted a partial payment and he also averred that the OWC judgment does not address interest.

However, once LIGA was named in the Petition for Damages, it was formally put on notice of the monies due to Mr. Lazaro, and it forwarded payment of the accrued judgment. Hence, LIGA stepped into the shoes of the NOB and its insurer, Villano-va, to tender Mr. Lazaro’s SEB payments despite the insolvency of the NOB and its insurer.

In fact, the accrued judgment was paid by LIGA prior to the hearing on the same issue with respect to Mr. Lazaro’s Motion to Accelerate Payments which he |1Rsought against the NOB. Nevertheless, the OWC found that Mr. Lazaro did not carry his burden in proving that the NOB fit each of the criteria set forth above in order to prevail on his Motion to Accelerate.

Therefore, based upon the above discussion, we also find that the OWC was not manifestly erroneous nor clearly wrong in denying Mr. Lazaro’s Motion to Accelerate Payments, as he did not successfully carry his burden of proof to support his claim. Thus, we find that this assignment of error is also without merit.

2. Penalties and Attorneys ’ Fees:

Mr. Lazaro also argues that the appropriate fees and penalties be paid to him as a result of the NOB’s failure to make SEB payments within thirty days after the final non-appealable judgment flowing from the September 26, 2003, judgment against the NOB.

La.R.S. 23:1201(E) provides for penalties against the employer or his insurer for failure to pay workers’ compensation benefits, and La.R.S. 23:1201(1), and (J) provides for attorneys’ fees against the employer or his insurer for failure to pay benefits. Under La. R.S. 23:1201(G), an employer is liable for penalties and 119attorneys’ fees if it does not pay an award payable under a final, nonap-' pealable judgment within 30 days.

In the instant matter, it appears somewhat one-sided for Mr. Lazaro to now argue that he is entitled to fees as a result of not taking the procedural precaution of adding Villanova to the original claim for SEBs. In effect, this Court is being asked to correct Mr. Lazaro’s failure to add Vil-lanova to his original claim and further allow him to benefit from same through his request for penalties, costs, and other fees. We decline to do so.

Consequently, it therefore follows that had the NOB’s insurer, Villanova, been added as a defendant from the outset, Mr. Lazaro’s SEB payments would not have been delayed through the insolvency of named defendants, the NOB and Villanova. Rather, LIGA would have been put on notice earlier, and Mr. Lazaro’s SEB payments may have been tendered timely.

Earlier in our discussion, we determined that the OWC did not err in denying Mr. Lazaro’s Motion to Accelerate Payments against the NOB. Therefore, we also find that the OWC was not manifestly erroneous nor clearly wrong in denying Mr. Lazaro’s claims for interest, penalties, and fees. Thus, we will not entertain the issue of interest, attorneys’ fees, and penalties because these issues are now moot.

Although Mr. Lazaro does have an alleged personal interest in the subject matter of the instant case, he has failed to state a legal cause of action against the remaining Appellees which would warrant the imposition of the fees. Once the NOB and its insurer were insolvent, LIGA became responsible for the remaining monies due under the judgment which awarded the SEBs. However, the OWC |annever made any determination that there was a “willful refusal” to tender payments by the NOB. The only determination that was made by the OWC was that Mr. Lazaro had not met his burden of proof in supporting his Motion to Accelerate Payments.

Furthermore, since the judgment is silent with respect to Mr. Lazaro’s request for interest payments and fees, we find that the OWC denied these demands, as our jurisprudence has determined that “when a judgment is silent as to part of relief requested by a claimant the judgment is deemed to have denied that relief.” Rhone v. Boh Bros., 01-0270 (La.App. 4 Cir. 12/12/01), 804 So.2d 764, 768, citing Succession of Lane, 95-0558 (La.App. 4 Cir. 9/28/95), 662 So.2d 82. We, therefore, find that the failure of the OWC to grant Mr. Lazaro’s request for interest, fees, and penalties was not inadvertent and find that this assignment of error is without merit.

III. DISQUALIFICATION OF ATTORNEYS:

In his final assignment of error, Mr. Lazaro argues that the OWC erred in not disqualifying the NOB’s and LIGA’s attorneys, or more specifically, the law firm of Rabalais, Unland, and Lorio. Mr. Lazaro alleged that the firm also represented LIGA when it was made a party to the proceedings. Nevertheless, the OWC heard Mr. Lazaro’s argument for disqualification at the hearing on July 19, 2004, concerning his corresponding Motion to Disqualify, and denied his motion.

In brief, Mr. Lazaro merely alluded to the fact that a conflict of interest may exist between the NOB, GAB, and LIGA. In his brief, Mr. Lazaro stated: “[i]t is impossible to fathom a scenario in which there does not exist a conflict of interest in the instant situation.” He also indicated that “Claimant sought the |¾1 disqualification of the law firm... as attorney of record for the [sic] LIGA, the last party for whom they acted as attorney in the proceeding. At bottom, if all is well with all parties and their counsel with respect to the causes of action among the defendants, Claimant cannot complain.”

The OWC did not issue reasons for its judgment concerning the Motion, but our review of the record did not reveal any conflicts of interest relative to the representation of the named Appellees.

Additionally, as Mr. Lazaro points out in brief, Rule 1.7 of the Model Rules of Professional Conduct provides that the parties must consent to the representation after consultation. The record does not contain any documented conflicts, adverse or othenvise, which demonstrated any “conflict of interest” in the firm’s representation of the NOB, GAB, and LIGA. The only conflict alluded to by Mr. Lazaro is that “LIGA would not be able to waive its right to a claim against any other party.” However, this allegation is merely a potential issue which could arise.

Notwithstanding, the obvious inquiry at this juncture is whether any of the named Appellees raised this issue, or whether the OWC judge had any basis on which to grant Mr. Lazaro’s Motion to Disqualify, but failed to do so. The record does not show that this issue was raised by any of the Appellees, and considering l^the record as a whole, this Court cannot find any documentation to justify a reversal of the OWC’s denial of Mr. Lazaro’s Motion to Disqualify. Thus, we find that this assignment of error is also without merit.

DECREE

Thus, for the reasons stated herein, we hereby AFFIRM the judgment of the Office of Workers’ Compensation.

AFFIRMED.

      . The New Orleans Brass was declared defunct after the 2002 hockey season.

      . The facts related to Mr. Lazaro's physical injury will not be reiterated here. The injuries and medical treatment are detailed in a prior appeal to this Court by the NOB, Lazaro v. New Orleans Brass, 2004-1135 (La.App. 4 Cir. 5/4/05), 903 So.2d 538. This earlier appeal addressed the issues concerning Mr. Lazaro's eligibility for Supplemental Earnings Benefits (SEB). This Court determined that Mr. Lazaro was permanently disabled. The NOB subsequently applied for supervisory writs with the Louisiana Supreme Court, Lazaro v. New Orleans Brass, 2005-1504, 917 So.2d 1113 (La.12/16/05), but the NOB’s application was denied.

      . The 'T020 Form,” is actually titled with the headline "Employee’s Monthly Report of Earnings” in the record.

      . La. R.S. 23:1333, titled Employer’s insolvency or failure to pay after award; acceleration of payments provides:

      A.If the employer against whom an award awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the award shall immediately become due and exigible and the award shall become execu-tory for the whole amount; but if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.
      B.When the award of temporary total disability benefits is accelerated pursuant to this Section, the acceleration shall be limited to an additional six months of benefits.

      . La. R.S. 23:1226(E), listed under the heading of Rehabilitation of injured employees, provides:
      When it appears that a retraining program is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to a reasonable and proper retraining program for a period not to exceed twenty-six weeks, which period may be extended for an additional period not to exceed twenty-six additional weeks if such extended period is determined to be necessary and proper by the workers' compensation judge. However, no employer or insurer shall be precluded from continuing such retraining beyond such period on a voluntary basis. An injured employee must request and begin retraining within two years from the date of the termination of temporary total disability as determined by the treating physician. If a retraining program requires residence at or near the facility or institution and away from the employee’s customary residence, reasonable cost of board, lodging, or travel shall be borne by the employer or insurer. A retraining program shall be performed at facilities within the state when such facilities are available.

      . La. C.C.P. Art. 925, titled Objections Raised by Declinatory Exception; Waiver, reads:
      A.The objections which may be raised through the declinatory exception include but are not limited to the following:
      (1)Insufficiency of citation.
      (2) Insufficiency of service of process.
      (3) Lis pendens.
      (4) Improper venue.
      (5) The court’s lack of jurisdiction over the person of the defendant.
      (6) The court's lack of jurisdiction over the subject matter of the action.
      B.When two or more of these objections are pleaded in the declinatory exception, they need not be pleaded in the alternative or in any particular order.
      C.A11 objections which may be raised through the declinatory exception, except the court's lack of jurisdiction over the subject matter of the action, are waived unless pleaded therein.

      . La. C.C.P. Arl.2088, titled Divesting of jurisdiction of trial court, provides in part:
      The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal.

      . We must also mention that the record indicates that Mr. Lazaro propounded discovery to GAB in order to obtain a copy of the contract between GAB and Villanova. Mr. Lazaro, alleges that GAB never forwarded the contract and was in essence "stonewalling” his efforts to prove his contract claim, under a stipulation pour autri.

      . Cornerstone was the owner of the NOB.

      . La.R.S. 23:1201(E) provides in pertinent part:
      If any installment of compensation payable without an order is not paid within the time period provided in Subsections (B), (C), or (D) of this Section, there shall be added to such unpaid installment a penalty of an amount equal to twelve percent thereof, which shtill be paid at the same time as, and in addition to, such installment of compensation, unless such nonpayment results from conditions over which the employer or insurer had no control. Whenever the employee’s right to such benefits has been reasonably controverted by the employer or his insurer, the penalties set forth in this Subsection shall not apply. The twelve per cent additional payment shall be assessed against either the employer or the insurer, depending upon who was at fault in causing the delay.

      . La.R.S. 23:1201(1) provides in pertinent part:
      I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:658(C) shall be applicable to claims arising under this Chapter.
      J. Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section, and an award of such single attorney fee shall be res judicata as to any and all conduct for which penalties may be imposed under this Section which precedes the date of the hearing.

      . Once LIGA tendered payment to Mr. Lazaro, it was dismissed from the instant case.

      . Rule 1.7 provides:
      (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
      (1) the representation of one client will be directly adverse to another client; or
      (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
      (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph
      (a), a lawyer may represent a client if:
      (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
      (2) the representation is not prohibited by law;
      (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
      (4) each affected client gives informed consent, confirmed in writing.