source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Gerald W. GREER v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    No. 06-417.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 4, 2006.

      A. Bruce Rozas, Rozas & Rozas, Mam-ou, LA, Kenneth Pitre, Pitre Law Office, Eunice, LA, for Plaintiff/Appellee, Gerald W. Greer.
    Sylvia M. Fordice, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Lafayette, LA, for Defendant/Appellant, State of Louisiana, through the Department of Transportation and Development.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|! Following a single vehicle motorcycle accident, Plaintiff, Gerald W. Greer (Greer), filed suit against the State of Louisiana, through the Department of Transportation and Development (DOTD), a private landowner, James Wade Willis (Willis), Willis’ homeowner’s insurer, Patterson Insurance Company (Patterson), and following Patterson being placed into receivership, Louisiana Insurance Guaranty Association (LIGA). A jury allocated fault between Greer (forty percent), DOTD (forty percent), and Willis (twenty percent), and awarded damages totaling $40,200.00. Greer filed a motion for addi-tur, which was denied by the trial court, and a motion for judgment notwithstanding the verdict (JNOV), which was granted in part, and denied in part. DOTD appealed, and Greer answered the appeal. For the following reasons, we reverse in part, affirm in part, and amend in part.

FACTS

On June 11, 2001, at approximately 2:00 a.m., Greer was riding his motorcycle northbound on Louisiana Highway 1153, in Allen Parish, Louisiana, when he encountered a tree which had fallen across the roadway. Greer collided with the tree, was thrown from his motorcycle, and sustained personal injury.

Greer filed suit against DOTD, Willis, Patterson, and subsequently, LIGA. The matter was tried before a jury which allocated forty percent fault to Greer, forty percent fault to DOTD, and twenty percent fault to Willis. The jury also awarded damages as follows:

A. Property Damage $ 700.00
B. Past Pain and Suffering $ 2,000.00
C. Future Pain and Suffering $ 1,000.00
D. Past Medical Expenses $ 11,500.00
E. Future Medical Expenses $ 25,000.00
F. Past Lost Wages $ 0.00
loG. Loss of Earning Capacity $ 0.00
H. Loss of Enjoyment of Life $ 0.00

On September 26, 2005, Greer filed a motion for additur and a motion for JNOV. The trial court: (1) denied Greer’s motion for additur; (2) denied Greer’s motion for JNOV relative to liability; and (3) granted Greer’s motion for JNOV, in part, relative to damages and increased the jury award as follows:

JURY AWARD JNOV
A. Property Damage $ 700.00 $ 3,500.00
B. Past Pain and Suffering $ 2,000.00 $50,000.00
C. Future Pain and Suffering $ 1,000.00 $25,000.00
D. Past Medical Expenses $11,500.00 $11,558.07
E. Past Lost Wages $ 0.00 $10,500.00
F. Loss of Earning Capacity $ 0.00 $ 7,000.00
G. Loss of Enjoyment of Life $ 0.00 $ 5,000.00

The trial court also assessed court costs one-half to DOTD and one-half to Greer. The JNOV was signed by the trial court November 17, 2005. It is from this judgment that DOTD has appealed, and Greer has answered the appeal.

ISSUES

The issues presented for our review include liability, allocation of fault, damages, and the assessment of court costs.

LAW AND ARGUMENT

LIABILITY OF DOTD

An appellate court may not set aside a jury’s finding of fact absent manifest error or unless it is clearly wrong. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

In order to establish liability on the part of DOTD, Greer had the burden of proving that: (1) the tree was in the care, custody, and control of DOTD; (2) the tree was defective, i.e., it posed an unreasonable risk of harm; (3) DOTD had actual or constructive notice of the defect; (4) DOTD had an opportunity to remedy the defect and failed to do so; and (5) Greer was damaged as a result of the defect. Vallien v. State, Dep’t Transp. & Dev., 01-566 (La.App. 3 Cir. 3/27/02), 812 So.2d 894, writs denied, 02-1184, 02-1198 (La.6/14/02), 818 So.2d 785 (quoting Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123; Netecke v. State, Dep’t Transp. & Dev., 98-1182, 98-1197 (La.10/19/99), 747 So.2d 489).

DOTD asserts on appeal that Greer failed in meeting his burden of proof on the first three enumerated elements of liability. Thus, our initial inquiry is whether the tree was in the care, custody and control, of DOTD. We conclude that it was.

Much effort was undertaken by the parties to establish whether the tree which fell was located totally on DOTD’s right of way, totally on Willis’ property, or partially on DOTD’s right of way and partially on Willis’ property. However, this factual finding is not determinative of the duty owed by DOTD.

With respect to DOTD’s duty, the trial court gave the following instruction to the jury without objection:

Although the [DOTD] is not the guarantor of the safety of travelers, it does owe a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Furthermore, it has a duty to remove a tree from property adjacent to its right-of way when it has actual or constructive knowledge the tree is in a condition where it may fall upon the road and create imminent danger for the users of the road. The [DOTD] also has a duty to provide adequate warning of such perilous condition.
|4The duty of the [DOTD] is to observe trees that [are] dead or leaning or otherwise appear defective by general observation and remove them within a reasonable time. This applies to trees on property adjacent to the [DOTD]’s right-of-way.

This instruction is an accurate statement of the law. The duty of DOTD “includes the duty to look for situations where a condition off of the right of way may endanger the safety of motorists.” Grant v. Allstate Ins. Co., 96-1028, p. 3 (La.App. 3 Cir. 6/4/97), 696 So.2d 275, 277, writs denied, 97-1717, 97-1579 (La.10/10/97), 703 So.2d 606 (citing Wilson v. State, Through Dept. of Highways, 364 So.2d 1313 (La. App. 3 Cir.1978), writ denied, 366 So.2d 563 (La.1979)). Quoting from Wilson, this court expounded on the duty of DOTD as follows:

[T]he duty of the [DOTD] to maintain its highways in a reasonably safe condition for the safety of the traveling public is so great that where a situation of imminent danger is posed to the users of the highway because of a tree or other hazardous instrumentality situated on private property along the highway right-of-way, the Department cannot sit back and ignore the dangers posed because the danger-causing object is situated on private property.
Id. at 1316.

Grant, 696 So.2d at 277-78.

We also recognize that the duty of DOTD is an affirmative duty to inspect. As explained by the supreme court, when addressing the risk associated with a tree falling onto a highway, “the [DOTDJ’s duty with respect to the limbs was to inspect them, as they inspect roadside trees, by looking for dead limbs or those which manifest some other indication that they are likely to fall into the roadway and to remove such limbs within a reasonable time.” Thompson v. State, 97-0293, p. 4 (La.10/31/97), 701 So.2d 952, 956.

In the instant matter, the experts testifying at trial about the location of the fallen tree differed as to whether it was located on DOTD’s right-of-way, on Willis’ property, or whether the tree and its “sister tree” straddled same. However, despite | ¿the significant amount of time and effort which both parties devoted to establishing the exact location of the fallen tree, even if it were the factual finding of the jury that the tree was located solely on Willis’ property, such a finding would not exonerate DOTD from all liability. Therefore, the issues remaining are whether the tree was defective, and whether DOTD had actual or constructive notice of the defect.

The fact that the fallen tree was defective due to its rotten condition is not seriously disputed by the parties. DOTD, in brief, asserts that “[w]hile the tree in this case certainly presented a risk of harm, the court should find the risk of harm was not unreasonable.” We disagree. All experts agreed that the tree was rotten and that it had been in that condition for a significant amount of time. Therefore, we find that the record contains a reasonable factual basis for the finding that the tree was defective due to its rotten condition and the immediate danger which it presented to the motoring public.

The remaining question, therefore, is that of notice. DOTD asserts that it did not have actual or constructive notice for the imposition of liability. To the contrary, we find that the record contains ample evidence to establish the requisite notice and knowledge on the part of DOTD.

The fallen tree struck by Greer was located along Louisiana Highway 1153, just north of Oakdale, Louisiana, in Allen Parish. The fallen tree was one of “twin trees” which broke apart from its “sister tree” and fell across the roadway, blocking the entire roadway. Several photographs of the tree and its location were introduced into evidence. These photographs clearly depict a large hole in the trunk of the sister tree, as well as a hole between the sister tree and the fallen tree.

The record is replete with evidence establishing the degree of deterioration of the fallen tree. Steve Ardoin, an expert arborist, testified that when he visited the | ^location of the accident, he saw the sister tree with a large hole in the bottom of it. He described the tree as having a large cavity and being all decayed inside. In his opinion, the tree had been in that condition for three to five years. Mr. Ardoin also testified that the remnants from the fallen tree indicated to him that the fork was totally dead. He stated that the tree had been in danger of falling for five years or more. In his estimation, ninety percent of it, or better, was rotten. Mr. Ardoin testified that the dead condition of the fork, the hole in the sister tree, and the cavity between the two, were all visible and “would have been exposed.” He testified that DOTD should have been able to see the condition of the tree from the highway.

Warren Peters, a consultant forester who performed an inspection of the accident scene, was also called to testify. Notably, at the time of his inspection, the sister tree had been cut down and all that remained was its stump. Therefore, unlike Mr. Ardoin, he was not able to see the sister tree as it was before it was removed. Mr. Peters agreed with Mr. Ardoin that the tree was dead and that it had been dead for a long time. Although Mr. Peters testified that he was uncertain whether the condition would have been visible to an individual driving on the highway, he did agree that the rotten limb and the hole in the sister tree would have caused him to stop and examine it. Mr. Peters admitted that this condition would cause concern to him that the tree was defective and would indicate the need for inspection.

Wilbert LeBlue is the parish superintendent for Allen Parish. He testified that, as parish superintendent, he inspects not only the state highways in the parish, but that he looks for anything which may be of danger to the motoring public. In conducting his inspection, he looks for leaning trees, trees that are dying, and trees that might fall onto the roadway. Mr. LeBleu’s job requires that he drive the highways in the parish at least twice a month to inspect their condition. Mr. LeBleu |7testified that he did not observe a dead or leaning tree, or any other indication that the tree was in danger of falling. However, this witness did testify about the continuous work done over the years in and around this location. He explained the documentary evidence which showed that other state employees were on this roadway with work crews cleaning ditches, removing trees, and even hand spraying herbicide at the exact location where the tree fell. Moreover, Mr. LeBleu testified that logs, which are maintained by DOTD, document that approximately seventeen days before Greer’s accident, hand spraying of herbicide was performed by DOTD at the location of the fallen tree.

Dan Daniels, a herbicide development operator with DOTD, was identified as the employee who had conducted the herbicide spraying. Mr. Daniels testified that he was physically at the location where the tree later fell, and that he was applying herbicide by hand on May 24, 2001, approximately seventeen days before Greer’s accident on June 11, 2001.

When considering all of the evidence presented, this court cannot say that the jury’s determination that DOTD knew or should have known of the rotten condition of the tree was unreasonable. Rather, we find that the record amply provides a reasonable factual basis for the jury’s determination that DOTD had actual or constructive notice of the defective condition of the fallen tree, and that despite the opportunity to do so, it failed to remedy the situation. For the foregoing reasons, we agree with the jury’s finding of liability on the part of DOTD.

LIABILITY OF LANDOWNER

Implicit in the jury’s allocation of twenty percent fault to Willis is an underlying determination that he had “custody” of the defective tree. As set forth above, the expert testimony on the exact location of the tree was inconclusive; 1 showever, said testimony did place the fallen tree at, on, or very near the state right of way for Louisiana Highway 1153. However, we pretermit further discussion of the issue of custody since we find that the record is void of any evidence of notice to or by Willis of the defective condition of the fallen tree.

Willis was deceased at the time of trial. In lieu of his live testimony, his deposition was read to the jury. Willis testified that he owned approximately thirty-three acres along Louisiana Highway 1153, where he resided for most of his life. He was familiar with the particular tree that fell. While farming his property, Willis and his farm workers often parked in the shade under this particular tree. However, Willis never noticed a problem with the tree before Greer’s accident. To his knowledge, it was healthy and in good condition. Therefore, even if the tree in question was located solely on Willis’ property, it was not proven that Willis had actual or constructive notice of the rotten tree sufficient for the imposition of liability. Additionally, we are mindful that Willis, as a landowner, did not have a duty to inspect the trees. Rather, his duty was merely a duty to act as a reasonable person would act. The condition of the tree in question was arguably obscured, at least partially, by vegetation. This resulted in a condition where Willis, through the exercise of reasonable care, would not necessarily be put on notice of the defective nature of the tree. Notably, unlike DOTD, Willis did not have an affirmative duty to inspect.

As stated previously, there was insufficient proof establishing that the tree was even situated on Willis’ property to even trigger liability on his part. For the foregoing reasons, we find the jury’s determination of liability on the part of the landowner, Willis, to be manifestly erroneous.

^ALLOCATION OF FAULT

Both parties have appealed the allocation of fault. DOTD appeals the allocation of forty percent fault which was assigned to it by the jury. In his answer to appeal, Greer contends that neither he nor the landowner are at fault and that DOTD is one hundred percent at fault.

Standard of Review

Having reversed the trial court’s imposition of liability on the part of Willis, we must reapportion fault. Consequently, o.ur apportionment of fault between Greer and DOTD is determined by conducting a de novo review. Turner v. D’Amico, 97-214 (La.3/21/97), 691 So.2d 70 (citing Boudreaux v. Farmer, 604 So.2d 641 (La.App. 1 Cir.), writs denied, 605 So.2d 1373, 1374 (La.1992)).

Reallocation of Fault

In assigning percentages of fault, we are to consider both the nature of each party’s conduct and the extent of the relation between that conduct and the damages suffered. Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985). In conducting a de novo review of the evidence, we will first address the amount of fault which we find is attributable to Greer.

It is noted that the record of these proceedings contains correspondence dated June 19, 2001, from Dr. Gerald W. Mouton (Dr. Mouton) to Greer’s former attorney. Therein, Dr. Mouton documents that Greer “reported that he was the single driver of a motor cycle [sic] traveling approximately 55 to 60 miles per hour when he ran into a tree that was laying across the road.” (Emphasis added.) It is undisputed that the speed limit on highway 1153, where this accident occurred, was fifty miles per hour. |inTherefore, we find that there is evidence in the record that Greer was exceeding the speed limit. Consequently, after conducting a de novo review, we agree with the jury’s finding of forty percent fault on the part of Greer for the subject accident.

Having previously determined that Willis is not liable, we hereby assign the remaining percentage of fault to DOTD. Accordingly, we reallocate fault in the amount of sixty percent to DOTD and maintain Greer’s fault at forty percent.

DAMAGES

Following the jury’s verdict, Greer filed a motion for additur and motion for JNOV. On the elements of damages, the trial court granted the JNOV and increased each element of the damage award, with the exception of the award for future medical expenses. Greer contends on appeal that the increase in these awards was insufficient. DOTD asserts on appeal that the increase by the trial court in the damage awards for past and future pain and suffering and the award for past lost wages was in error. For the following reasons, we affirm in part, and amend in part.

Standard of Review

The standard governing our review of the trial court’s grant of Greer’s motion for JNOV on the issue of damages was set forth by the supreme court as follows:

The use of JNOV is provided for by La.[Code Civ.PJ art. 1811. A JNOV may be granted on the issue of liability or on the issue of damages or on both issues. La.[Code Civ.P.] art. 1811(F). Article 1811 does not specify the grounds upon which the district court may grant a JNOV; however this court has set forth the criteria to be used in determining when a JNOV is proper as follows:
[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion lnwhich is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99 (internal citations omitted). See also VaSalle v. Wal-Mart Stores, Inc., 01-0462, p. 11 (La.11/28/01), 801 So.2d 331, 338-39. The rigorous standard of JNOV is based upon the principle that “when there is a jury, the jury is the trier of fact.” Joseph, 00-0628 at p. 5, 772 So.2d at 99 (quoting Scott v. Hospi tal Serv. Dist. No. 1, 496 So.2d 270, 273 (La.1986)).
In reviewing a JNOV, an appellate court must first determine whether the district judge erred in granting the JNOV by using the above-mentioned criteria in the same way as the district judge in deciding whether to grant the motion. VaSalle, 01-0462 at pp. 11-12, 801 So.2d at 339. Thus, the appellate court must determine whether the “facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.” Id. at p. 12, 801 So.2d at 339 (quoting Joseph, 00-0628 at p. 5, 772 So.2d at 99). If the appellate court determines that reasonable persons might reach a different conclusion, then the district judge erred in granting the motion and the jury verdict should be reinstated. Id.

Trunk v. Med. Ctr. of La. at New Orleans, 04-181, pp. 4-5 (La.10/19/04), 885 So.2d 534, 537; Duchamp v. State Farm Mut. Auto. Ins. Co. 05-339 (La.App. 3 Cir. 11/2/05), 916 So.2d 498, writ denied, 05-2505 (La.3/31/06), 925 So.2d 1260. “Once a trial court has granted a JNOV on the issue of damages, and has conducted its own independent assessment of the damages as trier of fact, that decision becomes the judgment of the court and it is reviewed on appeal for an abuse of discretion under the standard set forth in Coco v. Winston [Indus., Inc., 341 So.2d 332 (La. 1976)].” Love v. Lewis, 00-6, p. 7 (La. App. 3 Cir. 10/11/00), 771 So.2d 220, 224, writ denied, 00-3506 (La.2/16/01), 786 So.2d 102; Joseph v. Broussard Rice Mill, Inc., 00-628 (La.10/30/00), 772 So.2d 94.

hi>Past Lost Wages

DOTD contends that the jury properly failed to award Greer any damages for past lost wages and that the award should not have been subject to an upward adjustment to $10,500.00. We disagree. After reviewing the record in this case, we do not find that reasonable minds could differ on Greer’s entitlement to damages for past lost wages. We, therefore, conclude that the trial court did not err in granting Greer’s motion for JNOV on this element of damages.

Greer was out of work for three months following the accident. It was proven that his average monthly wage was approximately $3,500.00. Thus, having reviewed the evidence introduced at trial on the wages which were lost by Greer as a result of the subject accident, we find no abuse of the trial court’s discretion in the award of $10,500.00 in past lost wages.

Future Lost Wages and Loss of Earning Capacity

The jury also did not award Greer any damages for loss of earning capacity. The trial court increased the award to $7,000.00. DOTD contends that the jury properly failed to award Greer damages for future loss of earning capacity and that the award should not have been subject to an upward adjustment by the trial court. We find that the trial court did not err in granting the JNOV on this element of damages as reasonable minds could not differ on Greer’s entitlement to same.

The record showed that following the recommended shoulder surgery, he would not be employable for eight weeks. Given his average monthly earnings of $3,500.00, we find no abuse in this element of damages of the trial court’s award.

Past and Future Pain and Suffering

The jury’s award of $2,000.00 for past pain and suffering was increased by the trial court to $50,000.00. The trial court also increased the jury’s award for future 11 spain and suffering from $1,000.00 to $25,000.00. DOTD asserts that these awards by the jury were adequate and should not have been increased by the trial court. On the other hand, Greer contends on appeal that these awards are still woefully inadequate. We agree with the trial court that the jury’s awards for past and future pain and suffering were unreasonable. We also do not find that the trial court’s awards of $50,000.00 and $25,000.00, respectively, to be an abuse of discretion.

Following the accident, Greer was transported to Oakdale Community Hospital where he was treated for a laceration above his right eye, contusions to his hip and low back, and abrasions to his arms, right elbow, and left thigh. He was subsequently brought to Shreveport Medical Center for a neurological and orthopedic evaluation. He was seen by Dr. Steven James Flood with complaints of pain in his right shoulder, low back, legs, heals and right knee. Greer also attended physical therapy. Dr. Flood testified that Greer had internal derangement with impingement in the shoulder, as well as internal derangement in the knee, and a tear of the lateral meniscus. Additionally, Greer testified that he continued to suffer with pain in his shoulder, hip, and knee as of the date of trial.

Dr. Flood was also of the opinion that Greer would have to undergo surgery on his shoulder in the future, at which time he would be out of work for a week to ten days. Dr. Flood estimated the recovery period for the shoulder surgery to be four to six months.

Considering Greer’s injuries, past medical treatment, and future medicals, we do not find the awards for past and future pain and suffering to be abusively low or high. Given the trial court’s vast discretion, we will not disturb these awards on appeal.

|14Loss of Enjoyment of Life

The jury did not award Greer any damages for loss of enjoyment of life. The trial court increased this award to $5,000.00. We do not find that reasonable minds could differ on Greer’s entitlement to damages for loss of enjoyment of life and conclude that the trial court did not err in granting Greer’s motion for JNOV on this element of damages. Greer testified that there were activities which he is unable to do because of his injuries, such as playing tennis and dancing. Considering the evidence in the record, we do not find this award to be an abuse of the trial court’s discretion.

Future Medical Expenses

The jury awarded Greer $25,000.00 in future medical expenses. Greer argues on appeal that the trial court erred in failing to increase this award pursuant to his JNOV. We disagree.

When Dr. Flood was asked about the costs associated with the anticipated shoulder, he did not give an exact figure. He qualified what his surgical fee would be by stating it would depend upon what he found, and what he was required to do during the surgery, and then testified that his fee would range between $3,000.00 and $5,000.00. Dr. Flood also provided an amount for the associated surgical expenses of $25,000.00, which he stated was accurate within a range of “a couple of thousand dollars more or less.” Considering the estimation of future medicals provided by Dr. Flood, we cannot say that reasonable persons could not reach a different conclusion on the amount of future medical expenses which Greer would incur as a result of this accident. Therefore, we find that the trial court did not err in denying Greer’s motion for JNOV relative to future medical expenses.

|1BProperty Damages

The jury awarded Greer $700.00 for the property damage sustained to his motorcycle. The trial court increased the jury award to $3,500.00. Greer asserts on appeal that he is entitled to a further increase in the property damage award. We agree.

Other than Greer’s own testimony, the only witness who testified on the subject of property damage was Nina Doherty. Ms. Doherty is the owner of a Harley-Davidson store in Lake Charles, Louisiana, who has been selling motorcycles since 1971. She engages in the buying and selling of parts, and the repair of motorcycles. She is also knowledgeable about the retail prices for new and used motorcycles and their accessories.

Ms. Doherty saw Greer’s Harley-Davidson motorcycle after the accident and prepared a written estimate. She testified that the motorcycle was “a total loss because there [was] nothing repairable on it.” In her opinion, the value of this motorcycle was between $7,000.00 and $7,500.00, and that its accessories were valued at $2,000.00. Doherty also testified that the motorcycle had a salvage value of $100.00 to $150.00. This evidence was uncontra-dicted. Based on the foregoing, we find that $3,500.00 for property damage to be abusively low and the amount reasonably within the discretion of the trial court to be $7,000.00. Accordingly, we amend the award for property damage by increasing said award from $3,500.00 to $7,000.00.

COURT COSTS

Greer also assigns as error his assessment of one-half of the costs of the trial court. While we do not find that the assessment of court costs was an abuse of the trial court’s discretion considering the judgment rendered therein, we find that 11fiassessment to be inequitable given the reallocation of fault set forth above.

Louisiana Code of Civil Procedure Article 2164 provides the authority for this court to “render any judgment which is just, legal, and proper upon the record on appeal.” Additionally, this article allows us to tax the costs of the trial court against any party to the suit, as we consider equitable. Pursuant to the authority granted by this article, we reverse the trial court’s assessment of costs of court. In accordance with our reallocation of fault, we cast DOTD with sixty percent of the costs of the trial court, and Greer with forty percent of same.

DECREE

For the foregoing reasons, we reverse the trial court’s allocation of fault between the parties, and cast the State of Louisiana, through the Department of Transportation and Development, with sixty percent fault, and Gerald W. Greer with forty percent fault for the subject accident. We amend the property damage award to $7,000.00. Further, we reverse the trial court’s assessment of costs of court, and cast Greer with forty percent of the costs of court, and the State of Louisiana, through the Department of Transportation and Development, with sixty percent of the costs of court in accordance with La.R.S. 13:5112, said sixty percent amounting to $ 4,955.33. In all other respects, the JNOV is affirmed.

Costs of this appeal are likewise assessed forty percent to Greer and sixty percent to the State of Louisiana, through the Department of Transportation and Development, in accordance with La.R.S. 13:5112, said appellate costs amounting to $1,561.92.

REVERSED IN PART; AFFIRMED IN PART; AND AMENDED IN PART.

      . DOTD asserts on appeal that ”[t]he court’s allocation of fault to the DOTD is contrary to the law and to the evidence;” However, its brief addresses the issues of custody, duty, and notice. We note that these issues are determinative of liability, not of an allocation of fault.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. S.J.I.
    No. 06-1099.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 4, 2006.
    J. Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff/Appellee, State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, LA, for Defendant/Appellant, S.J.I.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hOn August 29, 2006, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed as untimely. This court ordered Defendant to respond to the rule to show cause on or before September 18, 2006, and he has failed to do so.

On November 10, 2004, pursuant to a plea bargain, Defendant entered a plea of guilty to indecent behavior with a juvenile, a violation of La.R.S. 14:81. On March 17, 2005, the court sentenced Defendant to seven years at hard labor, suspended one year, and ordered that upon his release, Defendant should be placed on active supervised probation for five years, with conditions. Trial counsel was allowed to withdraw on November 2, 2005. Defendant submitted a pro se motion for appeal, which the trial court granted on June 6, 2006.

Under La.Code Crim.P. art. 914, a motion for appeal must be made no later than thirty days after either the rendition of the judgment from which the appeal is taken or the ruling on a motion to reconsider sentence filed pursuant to La.Code Crim.P. art. 881.1. Because Defendant failed to file his motion for appeal within the time provided by La.Code Crim.P. art. 914, his conviction and sentence became final. Once Defendant’s conviction and sentence became final, he could no longer obtain an appeal by simply filing a motion for appeal. State v. LaBiche, 96-433 (La. App. 3 Cir. 7/31/96), 680 So.2d 77. Thus, Defendant must first obtain reinstatement of his right to appeal by way of a properly filed application for post-conviction relief. Id.; State v. Dixon, 00-516 (La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475 So.2d 336 (La.1985).

In Dixon, this court stated:

State v. Counterman, 475 So.2d 336 (La.1985) sets forth the procedure which should be followed to obtain the right to file an out-of-time appeal. In Counterman, the defendant was sentenced on February 10, 1983. No appeal was filed within the time period set forth Article 914. On April 10, 1984, the defendant filed a motion for an out-of-time appeal. The trial court granted the motion without a hearing and without affording the district attorney an opportunity to respond to the motion. The First Circuit Court of Appeal dismissed the appeal “on the basis that the trial court was without authority or jurisdiction to grant an out-of-time appeal on an ex parte motion.” Id. at 338. The defendant filed a motion for out-of-time appeal with the court of appeal, which was denied. The defendant then filed a motion for out-of-time appeal with the supreme court. The supreme court held that the defendant lost his right to obtain an appeal by simply filing a motion for an appeal after the time delays had run — not because the trial court was divested of jurisdiction but “because the conviction and sentence became final when the defendant failed to appeal timely.” Id. (footnote omitted). The supreme court held that the proper procedure for obtaining an out-of-time appeal is by filing an application for post conviction relief pursuant to La.Code Crim.P. arts. 924-930.7. [footnote omitted.] In so ruling, the supreme court found several advantages to following this procedure. Primarily, the district attorney would be allowed an opportunity to oppose a request, and the defendant would be afforded an evidentiary hearing to prove his allegations.
An out-of-time appeal is appropriately granted when the trial court has determined it is warranted “after due consideration of such factors as the length of the delay in defendant’s attempt to exercise the right and the adverse effect upon the state caused by the delay.” Id. at 340. The supreme court ultimately concluded that the defendant’s motion for an out-of-time appeal filed in the trial court should have been treated as an application for post conviction relief and remanded the case to the trial court for consideration as such. Following Counterman, we find that Defendant’s January 18, 2000 motion for appeal should have been treated by the trial court as an application for post conviction relief requesting an out-of-time appeal. We note that La.Code Crim.P. art. 930.8 now provides that the time delays for filing an application for post conviction relief are applicable to requests for out-of-time appeals, unless an exception is made. Therefore, Defendant shall be permitted an opportunity to amend his motion to comply with the requirements of Articles 924-930.8. By doing so, the State will then be given an opportunity to contest the granting of an appeal.

Dixon, 768 So.2d at 101-102.

Therefore, the appeal in the above-captioned case is hereby dismissed and this case is remanded to the trial court for further proceedings. Defendant is to be permitted an opportunity to amend his motion for appeal to comply with the requirements of La. Code Crim.P. arts. 924-930.8, and the State is to be given an opportunity to contest the granting of an out-of-time appeal.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.


author: SAUNDERS, Judge.

text:
    Yvonne LOUVIERE v. FOOD & FUN, INC.
    No. WCA 2006-469.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 11, 2006.
    Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann, & Papale, L.L.P., Metairie, LA, for Defendant/Appel-lee, Food & Fun, Inc.
    David Russell Bankston, Lafayette, LA, for Plaintiff/Appellant, Yvonne Louviere.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

hOn May 10, 1996, Claimant, Yvonne Louviere, slipped and fell, injuring her back during the course and scope of her employment with Appellee, Food & Fun, Inc. After conservative treatment failed to alleviate Claimant’s pain, her treating physician recommended surgery as a treatment option. After requesting an independent medical evaluation (IME) and a subsequent second medical opinion, Appel-lee denied Claimant authorization to proceed with the surgery on the basis of her psychological state. Over the next seven years, Claimant continued to receive conservative treatment from various doctors, and Appellee continued to refuse authorization for the procedure. Claimant eventually took out a second mortgage on her home to pay for the procedure, and it was performed on January 30, 2004. Claimant filed a Disputed Claim for Compensation with the Office of Workers’ Compensation on October 29, 2004, and both parties subsequently filed cross motions for summary judgment. After the hearing on the motions, the trial court rendered a judgment granting summary judgment in favor of Food & Fun, Inc., denying Claimant’s motion for summary judgment, and dismissing Claimant’s 1008 claim. Claimant now appeals.

FACTS AND PROCEDURAL HISTORY

Claimant, Yvonne Louviere, was employed by Food & Fun, Inc. as a cashier at a New Iberia convenience store on May 10, 1996 when she slipped and fell during the course and scope of her employment, injuring her lower back. Immediately after the accident, Claimant reported the injury and was taken to the emergency room at Lafayette General Medical Center for treatment.

Claimant was evaluated by Dr. Louis C. Blanda, an orthopedist, on July 9, 1996. On July 30, 1996, an MRI ordered by Dr. Blanda revealed Claimant suffered La herniated disc at the L4-5 level. On December 5,1996, after a myleogram showed disc bulging, Dr. Blanda referred Claimant to a neurologist, Dr. Daniel L. Hodges, for treatment pursuant to a rehabilitation and pain management program. However, Dr. Hodges was ultimately unable to assist Claimant with pain management, and returned her to Dr. Blanda’s care on January 28, 1997 in order to discuss possible surgical options.

On March 4,1997, a second MRI showed Claimant still had a persistent L4-5 disc herniation. Additionally, Dr. Blanda noted that the disc space was beginning to narrow, and some instability was starting to develop. After evaluating the results of the MRI, Dr. Blanda first suggested surgery as a treatment option. He recommended a discectomy and posterior lumber interbody fusion at the L4-5 level, and sought written authorization to proceed with the procedure.

Upon receiving Claimant’s request for approval of the surgery, Appellee sought a second medical opinion from Dr. J. Frazer Gaar. After reviewing Claimant’s records, Dr. Gaar stated in his report that there was evidence of a degenerative disc disease and desiccation at the L4-5 space, as well as bulging at the L4-5 level. However, he stated that he was reluctant to recommend surgery based on the lack of clinical correlation, as there were many non-physiological signs.

On July 14, 1997, Dr. Clark Gunderson, an orthopedic surgeon appointed by the Office of Workers’ Compensation to perform an independent medical evaluation (IME) and render an opinion regarding the necessity of the proposed surgery, evaluated Claimant and recommended taking a non-surgieal approach to her treatment, including pain management. Because Dr. Gunderson disagreed with the need for surgery, on December 2, 1997 Appellee denied Claimant authorization.

|3Pr. Gunderson performed a second IME on January 6, 1998 and again disagreed with Dr. Blanda’s recommendation that Claimant undergo the lumbar surgery, stating in his report that he was more concerned that Claimant was not a good candidate for surgery from a psychological standpoint. Claimant was then referred to Louisiana Pain Management for treatment by Dr. Sanjiv K. Jindia.

Claimant first saw Dr. Jindia for a physical examination on March 26, 1998, after which Dr. Jindia recommended a series of three epidural injections near the site of the disc herniation in order to reduce her pain. However, Claimant completed the injection series with minimal results. Dr. Jindia recommended that Claimant lose weight, strengthen her back, and increase her activity. He stated in his report, dated September 16, 1998, that he was relatively unsuccessful in assisting her with pain management, and that he was returning her to the care of Dr. Blanda for follow-up to determine whether a surgical option was necessary.

Appellee sought a second medical opinion from Dr. Gaar on November 17, 1999. In his report, Dr. Gaar stated that the MRI again revealed a degenerative lumbar disc disease at the L4-5 level. He stated that he could not tell whether surgical intervention would help Claimant. He further stated that he continued to feel that there was evidence of non-physiologic pain behavior.

Dr. Gunderson performed yet another IME on April 13, 2003. In his report, he noted that an MRI, taken on March 20, 2000, shows dehydrated discs at L3-4 and L4-5. He recommended that Claimant undergo a psychological evaluation by Dr. Cole, before recommending any surgery. He stated that upon completion of such evaluation, if Claimant’s psychodynamics were found to be “appropriate,” then J^perhaps an interbody fusion would be the proper procedure. However, he emphasized that the surgery would not be appropriate prior to psychological testing.

Pursuant to Dr. Gunderson’s recommendation, Claimant underwent a psychological evaluation on June 21, 2000 by Dr. Jimmie C. Cole. In his report dated June 27, 2000, Dr. Cole reported that Claimant suffered from “depression in the near severe range” and somatoform pain disorder. He concluded that with Claimant’s condition and the psychological overlay, he did not believe she was a good candidate for surgical intervention for pain relief.

On September 1, 2000, Dr. Gunderson reviewed Claimant’s psychological evaluation report, and agreed with Dr. Cole’s recommendation against surgery, stating that because of Claimant’s severe depression, she did not have the pathology amenable to surgery.

After further conservative treatment by Dr. Blanda, authorization to proceed with the surgery was requested on June 19, 2001, but was again denied.

Dr. Gaar last saw Claimant on August 28, 2002. In his report based on this final evaluation, Dr. Gaar noted that an MRI performed on June 6, 2001 revealed a tiny L3-4 posterior central disc protrusion, as well as diffuse bulging at L4-5. There were signs of “early degeneration at L3-4 with some mild broad-based bulging,” and the L4-5 disc showed “desiccation and degeneration at the L4-5 with broad-based bulging or protrusion with a small central high intensity zone.” However, Dr. Gaar’s opinion was unchanged as to his recommendation against surgery; he stated that he continued to feel that Claimant was not a good candidate for surgical intervention due to too much psychological overlay with non-physiologic pain behavior.

|fiOn January 23, 2004, over seven years after the occurrence of the injury, Claimant took out a second mortgage on her home and made a payment of $12,000.00 to Dr. Blanda’s office in order to proceed with the surgery. The lumbar fusion surgery was performed on January 30, 2004, and Claimant was discharged from the hospital on February 4, 2004.

On October 29, 2004, Claimant filed a Disputed Claim for Compensation with the Office of Workers’ Compensation against her employer, Food & Fun, Inc., seeking reimbursement of medical expenses related to the lumbar surgery performed by Dr. Blanda in addition to penalties and attorney fees, claiming that Defendant’s denial of payment was arbitrary and capricious and without reasonable cause. Ap-pellee filed an answer on December 23, 2004, asserting that Claimant’s lumbar surgery was not reasonable and necessary medical treatment, and therefore, the Claimant was limited to recovering $750.00 under La.R.S. 23:1021, et seq.

The parties filed cross motions for summary judgment which were heard on July 21, 2005. After taking the matter under advisement, the Workers’ Compensation Court stated in its written reasons for judgment, issued on February 7, 2006, that although the findings of an IME are not conclusive, they should be given significant weight. The court found Claimant did not meet her initial burden of proof in establishing that there was a medical necessity for the procedure at the time it was performed. Therefore, the court found that Claimant’s surgery was an unauthorized, non-emergency medical treatment, and was subject to the $750.00 medical reimbursement cap under La.R.S. 23:1142. Accordingly, a judgment granting the motion for summary judgment filed by Defendant, Food & Fun, Inc., and denying the motion for summary judgment filed by Claimant, Yvonne Louviere, was rendered on | ^October 20, 2005. The judgment dismissed Claimant’s 1008 claim with prejudice; however, it ordered Defendant to pay the $750.00 medical reimbursement cap to Claimant for the unauthorized, non-emergency medical treatment under La. R.S. 23:1142(B)(1). Neither party was assessed attorney fees or penalties. Claimant now appeals.

ASSIGNMENTS OF ERROR

1) The trial court erred in granting the motion for summary judgment filed by the employer, and denying the motion for summary judgment filed by Yvonne Louviere, and allowing medical reimbursement limited to the $750.00 cap for unauthorized non-emergency treatment.
2) The trial court erred in denying Yvonne Louviere penalties and attorney fees.

STANDARD OF REVIEW

Appellate courts conduct a de novo review of rulings on motions for summary judgment. “It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Alfred Palma, Inc. v. Crane Servs. Inc., 03-614, p. 3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774, quoting Shelton v. Standard/700 Assocs., 01-587, p. 5 (La.10/16/01), 798 So.2d 60, 64-65; La.Code Civ.P. art. 966(B).

LAW AND ANALYSIS

Assignment of Error No. 1:

Claimant argues that the trial court erred in denying her motion for summary judgment, granting Appellee’s motion for summary judgment, and limiting her 17medical reimbursement to $750.00 under La.R.S. 23:1142. Louisiana Revised Statutes 23:1142 states:

A. Definitions. For the purposes of this Section, the following terms shall have the following meanings unless the context clearly indicates otherwise:
(1) “Payor” shall mean the entity responsible, whether by law or contract, for the payment of the medical expenses incurred by a claimant as a result of a work related injury.
B. Nonemergency care. (1) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemer-gency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
(2)(a) When the payor has agreed to the diagnostic testing or treatment, the health care provider shall not issue any demand for payment to the employee or his family until the payor denies liability for the diagnostic testing or treatment. Notwithstanding the foregoing, the health care provider may reasonably communicate with the employee or his attorney or representative for the purpose of pursuing its claim against the payor.
(b) A health care provider who knowingly and willfully violates this Paragraph may be ordered by the workers’ compensation judge to pay penalties not to exceed two hundred fifty dollars per violation plus reasonable attorney fees. The penalty shall not exceed one thousand dollars for any demand for payment to an employee or his family which is issued after the health care provider has been penalized for a previous demand for payment to that employee or his family.
C. Emergency care. (1) In no event shall prior consent be required for any emergency procedure or treatment deemed immediately necessary by the treating health care provider. Any health care provider who | «authorizes or orders emergency diagnostic testing or treatment, when said diagnostic testing or treatment is held not to have been of an emergency nature, shall be responsible for all of the charges incurred in such diagnostic testing or treatment. Said health care provider shall bear the burden of proving the emergency nature of the diagnostic testing or treatment. (2) Fees for those services of the health care provider held not to have been of an emergency nature shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the treatment or diagnostic testing by the health care provider, except as provided in R.S. 23:1272(D).
D. Fees and expenses. If the payor has not consented to the request to incur more than a total of seven hundred fifty dollars for any and all nonemergen-cy diagnostic testing or treatment when such consent is required by this Section, and it is determined by a court having jurisdiction in an action brought either by the employee or the health care provider that the withholding of such consent was arbitrary and capricious, or without probable cause, the employer or the insurer shall be liable to the employee or health care provider bringing the action for reasonable attorney fees related to this dispute and to the employee for any medical expenses so incurred by him for an aggravation of the employee’s condition resulting from the withholding of such health care provider services.
E. Exception. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

[Emphasis added.]

Claimant asserts that no prior authorization for the procedure was required, as Appellee’s repeated denial of authorization of the procedure constitutes a denial of compensability of the injury, and therefore falls under the exception to the statute found in subsection E. Claimant presents a line of cases which support her argument.

|9In Sneed v. RTA/TMSEL, 03-1532 (La. App. 4 Cir. 2/25/04), 869 So.2d 254, the employee claimant sustained injuries to her cervical spine. After conservative treatment was unsuccessful, the claimant’s neurosurgeon recommended a microsurgi-c'al discectomy and a medical branch neu-rotomy to alleviate her pain. However, an independent medical examiner appointed to evaluate the claimant recommended further therapy in lieu of surgery, based on the fact that the success rate of the recommended procedure was “questionable.” Id. at 262. The employer subsequently denied the request for surgery. After the denial of authorization, the claimant’s physician recommended a different procedure, an IDET; however, authorization for that procedure was denied as well. Several small procedures were performed; however, none successfully alleviated the patient’s pain. Almost two years after the occurrence of the accident, the claimant underwent the neurotomy, the procedure that her neurosurgeon initially recommended, without first obtaining approval from her employer. The employer refused to pay for the procedure, stating that it was not liable, as the surgery was not authorized. Id.

The court in Sneed found that the employer’s denial of claimant’s workers’ compensation request for surgery amounted to denial of liability for claimant’s injury and, therefore, the $750.00 cap imposed by La. R.S. 23:1142 was not applicable. Citing Gros v. Gaudin, 00-1015 (La.App. 5 Cir. 10/31/99), 773 So.2d 172, writ denied, 00-3242 (La.1/26/01), 782 So.2d 635, and Barron v. First Lake Properties, Inc., 93-902 (La.App. 5 Cir. 3/29/94), 636 So.2d 970, the court went on to state that the compensa-bility of a claimant’s work related injury may be generally admitted, while authorization for a specific medical procedure is denied, amounting to denial of | ^compensability under La.R.S. 23:1142(E). Id. The court found the neu-rotomy medically necessary, stating that two years had passed since the occurrence of the injury, the claimant had undergone conservative treatment without any benefit, and it was apparent that the treating physician was not “rushing to have the patient undergo unnecessary surgery, but he intended to attempt to alleviate her back pain.” Id. at 262.

In, Gros v. Gaudin, 773 So.2d at 172, the claimant sustained a severe back injury when she slipped and fell while working in a law office. She underwent two surgeries in five years to repair the damage; however, she remained disabled. Claimant’s treating physician then recommended a third surgery, a grafting procedure, to alleviate her severe pain. The claimant’s employer refused to authorize the procedure and sought a second medical opinion. Although the employer’s physician acknowledged that the “claimant had severe problems and was at this time disabled,” he opined that another surgery would not benefit her. Id. at 173. The claimant’s treating physician recommended surgery almost a year later, and the employer again denied authorization for the procedure. The surgery was eventually performed after Medicare coverage was obtained through social security. Citing Barron, 636 So.2d at 973, the court found that the employer’s actions constituted a denial of compensability under La.R.S. 23:1142(E) and, therefore, no prior authorization was required for the procedure. The court noted that the claimant was experiencing extreme pain, and that the procedure was “performed some 6 months after the initial request and after numerous requests for authorization.” Id. at 175.

In the instant case, as in Gros and Sneed, the work related injury is generally admitted; however, Appellant repeatedly denied authorization for specific medical Intreatment, namely, the lumbar fusion. Authorization in Gros and Sneed was denied based on the questionable success of the surgery. In this case, Dr. Gaar stated, “I think we all agree that she did have a degenerative lumbar disc disease early on from the MRI studies etc. The question was as to whether she would benefit from a surgical procedure or not.”

Claimant’s situation is clearly more profound than that of the claimant in either the Gros or the Sneed case. She underwent conservative treatment for seven years, saw three orthopedic surgeons, two pain management specialists, and a psychologist, went through numerous evaluations and medical exams, was in severe pain and was barely able to function. Additionally, her condition was deteriorating over time. Yet, although all pre- and postoperative reports acknowledged the injury and, its progression, authorization for the procedure was repeatedly denied. It is clear from the record that the surgery was medically necessary, especially in light of the uncontradicted post-surgery testimony of Dr. Blanda that - Claimant’s condition had worsened. We echo the observation in Sneed that the physician was not “rushing to have the patient undergo unnecessary surgery, but he intended to attempt to alleviate her back pain.” We find that Appellee’s repeated denial of authorization for Claimant’s procedure constitutes a denial of compensability under La.R.S. 23:1142(E), and therefore, prior authorization is not required. Accordingly, we find Appellee liable for all medical expenses incurred.

The court would also note that La. R.S. 23:1142(C) dispenses with the need for prior approval in cases of emergency, or where treatment is “immediately necessary.” Defendant argues strenuously that there is no emergency, as further delay would not 112cause Claimant more damage. They do not discuss the phrase, “immediately necessary.” In the instant case, we consider Dr. Blanda’s testimony that Claimant had a herniated disc at L3-4 and a herniated disc at L4-5, as well as considerable instability at the L4-5 level, clearly shows that the procedure was necessary at the time it was performed. The fact that he had been treating Claimant for over seven years and had run out of treatment options clearly establishes that further delay would be unreasonable. Then, the “immediate” factor is established. Accordingly, we hold that the surgery was “immediately necessary” and therefore, no approval was required.

Assignment of Error No.2:

Claimant argues that upon reversal of the ruling of the trial court, she is entitled to attorney fees and penalties. Louisiana Revised Statutes 23:1142(D) permits the award of penalties and attorney fees by a court if the employer or insurer was arbitrary and capricious, or without probable cause, in withholding its consent for authorization. We do not find that Appellee was arbitrary and capricious in withholding its consent, as there was arguably an excuse for denying authorization. Accordingly, Claimant is not entitled to penalties and attorney fees.

CONCLUSION

After our review of the record, we find that Claimant’s lumbar surgery was medically necessary, and Appellee’s repeated denial of authorization for the procedure amounts to a denial of compensability under La.R.S. 23:I142(E). Therefore, prior approval for Claimant’s surgery was not required. Accordingly, Appellee is liable for all expenses associated with the procedure. Additionally, we note that Claimant’s procedure is also “immediately necessary” under La.R.S. 23:1142(0 and that further |13delay would be unreasonable. However, we do not find Appellee arbitrary and capricious in its denial of authorization.

The judgment of the trial court is reversed. Costs of the appeal are assessed against Appellees.

REVERSED.

PICKETT, J., concurs.

GENOVESE, J., concurs.


author: COOKS, Judge.

text:
    Olen G. QUEBEDEAUX, et ux v. SUNSHINE HOMES INC., et al.
    No. 06-349.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 11, 2006.
    Christian M. Goudeau, A Professional Law Corporation, Opelousas, LA, for Plaintiffs/Appellees, Olen G. and Mary T. Quebedeaux.
    Peter F. Caviness, Dauzat, Falgoust, Caviness, and Bienvenu, L.L.P., Opelou-sas, LA, for Defendant/Appellant, Royer Mobile Homes of Opelousas, Inc.
    Robert J. David, Jr., Sue Nations, Kate B. Labue, Juneau Law Firm (A Professional Law Corporation), Lafayette, LA, for Defendani/Appellee, Sunshine Homes, Inc.
   Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.

COOKS, Judge.

| ¡¡STATEMENT OF THE CASE

Royer Mobile Homes of Opelousas, Inc. and Sunshine Homes, Inc. appeal the trial court’s denial of their Dilatory Exceptions of Prematurity. They argue the Plaintiffs’ cause of action is subject to arbitration. For the reasons assigned below, we affirm the decision of the trial court.

STATEMENT OF THE FACTS

This case arises out of the purchase of a mobile home. In May of 2003, the Plaintiffs, Olen and Mary Quebedeaux, decided to purchase a mobile home from Royer Mobile Homes of Opelousas, Inc. (Royer). The home was not yet built and was to be manufactured by Sunshine Homes, Inc. in accordance with the Quebedeauxs’ specifications. On May 12, 2003, the Quebe-deauxs executed a purchase agreement with Royer and deposited $15,000 in earnest money. The purchase agreement detailed the terms of the sale and provided the Quebedeauxs were to pay a balance of $49,260, which represented the purchase price of $64,260 less the $15,000 earnest money. At the bottom of the last page, the purchase agreement contained the following language:

THIS AGREEMENT CONTAINS THE ENTIRE UNDERSTANDING BETWEEN U.S. AND NO OTHER REPRESENTATION OR INDUCEMENT, VERBAL OR WRITTEN, HAS BEEN MADE WHICH IS NOT SET FORTH HEREIN.

The purchase agreement did not contain an arbitration clause. In addition to the $15,000 earnest money, the record indicates the Quebedeauxs incurred additional expenses of $7,000 for appraisal and site preparation in connection with the purchase of their new home.

On June 4, 2003, Royer notified the Que-bedeauxs their home had arrived. Before delivery of the mobile home to the site, the Quebedeauxs were required to sign |4several documents including a Bill of Sale, a Health Notice, a Consumer Information form and another document entitled “Acknowledgment and Agreement.” This agreement contained an arbitration clause in which the parties agreed to submit any dispute, claim or controversy to an arbitrator in a location selected by the manufacturer. The laws of the State of Alabama would apply to any dispute. The parties waived the right to a jury trial and the cost of arbitration would be apportioned equally between the parties. On that date, the Quebedeauxs tendered the balance due on the home of $49,260 and the home was delivered to the site.

Shortly after taking possession of their home, the Quebedeauxs began to experience structural problems with their mobile home. Their petition alleges the home was not level, the air conditioner was improperly installed and did not adequately heat or cool the home, the bay windows leaked, the front door was not properly sealed, there were holes in the belly board, the clean-outs on the sewer lines were glued shut and were leaking, the floor was uneven at the joints, and the roof shingles were improperly installed causing the roof to leak. Numerous complaints about the problems were made to Royer, and Royer made several attempts to repair the defects to the home. Finally, the Plaintiffs filed a Petition for Redhibition, Breach of Contract, and Damages against Royer and Sunshine Homes. The Plaintiffs also petitioned for an award of attorney’s fees. Royer and Sunshine Homes filed a Dilatory Exception of Prematurity. A hearing was held on the exception. The trial court denied the exception relying on two cases from this circuit, Rodriguez v. Ed’s Mobile Homes of Bossier City, 04-1082 (La.App. 3 Cir. 12/8/04), 889 So.2d 461, writ denied, 05-0083 (La.3/18/05), 896 So.2d 1010; Abshire v. Belmont Homes, Inc., 04-1200 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, writ denied, 05-0862 (La.6/3/05), 903 So.2d 458. We affirm the decision of the trial court.

| .LAW AND DISCUSSION

Royer and Sunshine Homes contend the arbitration clause should be enforced for several reasons. They assert Louisiana’s public policy strongly favors the resolution of disputes through arbitration, citing Louisiana’s arbitration provision contained in La.R.S. 9:2401. Royer and Sunshine Homes assert there is no evidence to suggest that the arbitration clause was unilaterally imposed upon the Quebedeauxs after the terms of the sale were finalized. Finally, they argue there is no evidence that the Quebedeauxs were compelled to enter into the Acknowledgment and Agreement. In fact, they argue that the Quebedeauxs could have refused to sign the document with the arbitration agreement and “unilaterally cancelled the contract, forfeiting only their earnest money deposit if they did not want to agree to arbitration. But they chose not to do so.” In support of their position, Royer and Sunshine Homes offered the testimony of Mr. Allen Amy, owner of Royer Mobile Homes.

Mr. Amy testified he spoke to the Que-bedeauxs after they had signed the Purchase Agreement in May 2003 and he accepted earnest money of $15,000. He testified: “We received two checks for I think the amount of fifteen thousand dollars worth of earnest money.” The receipt for the $15,000, which is contained in the record, indicates the money was designated as earnest money and was not a deposit on account of the price. Although Mr. Amy testified he would have returned the $15,000 to the Quebedeaux if they were not satisfied with their home, he did not testify that he would have returned the earnest money if the Quebe-deauxs had refused to sign the final sale documents because of the arbitration clause.

The Quebedeauxs contend the arbitration clause which was contained in the Acknowledgment and Agreement is not valid because it was not part of the sales transaction. The Quebedeauxs contend sale of the mobile home was perfected on [.May 12, 2003 when both parties signed the purchase agreement and placed the order for the home with Sunshine Homes.

We have examined the record and find the agreement to purchase the mobile home contained all of the agreed upon provisions for a final sale and delivery of the mobile home. It is undisputed Royer would not have delivered the mobile home to the site in June 2003 if the Quebedeauxs had refused to sign the noted documents at the time of delivery. Mr. Quebedeaux testified he was called and told the mobile homes was ready for delivery but the home would not be delivered unless he executed the final documents at Royer’s. He testified: “He told me I had to go down there and sign the papers for this trailer or he was not going to deliver my home. And I said well I’m on my way, if you’re not going to deliver my home I’m coming.” Mr. Quebedeaux stated he did not realize the agreement contained an arbitration clause until later when copies were mailed to him.

The facts in Rodriguez v. Ed’s Mobile Homes of Bossier City, Louisiana, 2004-1082 (La.App. 3 Cir. 12/8/04), 889 So.2d 461, writ denied, 2005-C-0083 (La.3/18/05), 896 So.2d 1010, are very similar to the facts in this case. In Rodriguez, on May 23, 2000, the Plaintiffs executed a purchase agreement for a mobile home and made a down payment of $7,000. The purchase agreement provided for a forfeiture of the earnest money if the purchase was not completed. On June 16, 2000, the plaintiffs met with a representative of Ed’s Mobile Homes to sign the closing papers for purchase of the mobile home. This agreement contained an arbitration clause. When the Rodriguezes experienced problems with their mobile home, they filed a suit in redhibition. Ed’s filed an exception of prematurity based on the an arbitration clause in the act of sale. The trial court denied the exception. In affirming, this court found the “parties had already agreed upon the terms of contract of sale before |7closing, and binding arbitration was not one of them.... A party cannot, unilaterally, assign additional consideration for the perfection of a sale.” Id. at 464. Additionally, this court stated:

We recognize that Louisiana public policy strongly favors the resolution of disputes through the arbitration process. However, this does not mean that all arbitration provisions are valid under state law. The state arbitration statute provides that “[a] provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist in law or in equity for the revocation of any contract.”
One of the conditions of a valid contract is the consent of both parties. Consent may be vitiated by error. Error can “invalidate a contract if it is related to the principle cause, or motive, for making the agreement” and is “known or should have been known to the other party.” Cause is the “reason why a party obligates himself.”
In the case at bar, the Rodriguezes testified that when they signed the original agreement and made their down payment of $7000.00, there was no discussion of the requirement of an arbitration or mediation agreement. The latter was presented to them, for the first time, at closing; they signed it because they thought they “had to ” in order to get delivery of their mobile home.

Id. at 463-464. (footnotes omitted). See also, Abshire, 896 So.2d 277, writ denied, 05-0862 (La.6/3/05), 903 So.2d 458.

In the present case, we find the Quebe-deauxs correctly concluded they had to execute the final sale documents in order to get delivery of their home. There was no discussion about nor did they agree to the arbitration clause. Royer unilaterally added the arbitration clause to the final contract of sale. Moreover, had the Que-bedeauxs refused to sign the document containing the arbitration clause they would have forfeited the $15,000 deposit and lost the additional $7,000 already expended preparing the site. Therefore, we find the Quebedeauxs’ consent to arbitration was vitiated by error.

IsDECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed to Royer Mobile Homes of Opelou-sas, Inc. and Sunshine Homes, Inc.

AFFIRMED.


text:
    ESTATE OF Jeramy Lee DAUZAT, Through its Adminstratrix Christine Faye Aymond Dauzat v. EAGLE AMERICAN INSURANCE COMPANY.
    No. 06-333.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 11, 2006.
    Kerry L. Spruill, Marksville, LA, for Plaintiff/Appellant, Estate of Jeramy Lee Dauzat, through its administratrix Christine Faye Aymond Dauzat.
    Benjamin A. Luke, Roy & Roy, P.L.L.C., Marksville, LA, for Defendant/Appellee, Eagle American Life Insurance Company.

      Court composed SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   COOKS, Judge.

1 .STATEMENT OF THE CASE

Christine Faye Aymond Dauzat, as Ad-ministratrix of the estate of her deceased son, Jeramy Lee Dauzat, appeals the trial court’s grant of a Motion for Summary Judgment filed by Eagle American Insurance Company, dismissing her claim for the policy proceeds on a credit life policy issued to Jeramy. For the reasons assigned below, we reverse the decision of the trial court granting the summary judgment and remand for further proceedings.

STATEMENT OF THE FACTS

In 1999, as a teenager, Jeramy Lee Dau-zat, was electrocuted while crawfishing when his metal pole came in contact with a power line owned by Entergy Louisiana, Inc. As a result of the accident, Jeramy’s leg was amputated just below the knee. A lawsuit was filed against Entergy by Larry and Christine Dauzat, individually and on behalf of their minor son, in the Twelfth Judicial District Court, Docket Number 98-5833-B. Shortly after the accident, on September 14, 1999, Jeramy sought treatment with Dr. L.J. Mayeaux, a family care physician. Dr. Mayeaux testified he saw Jeramy one time and found he was suffering from depression. In March 14, 2001, Jeramy sought treatment with Dr. Marshall E. Belaga, a psychiatrist. On that date, Dr. Belaga diagnosed Jeramy with depression and post-traumatic stress disorder due to the accident. During that same period of time, Jeramy suffered the loss of a brother to an accident and his sister was murdered by her ex-boyfriend. In February 2002, he was involved in an automobile accident and was treated for a cut on his head. Dr. Belaga saw Jeramy three times on March 19, 2001, November 27, 2002, and January 20, 2003. Dr. Belaga prescribed no drugs, and Jeramy did not return to the psychiatrist after January 20, 2003.

bln September 2003, Jeramy and a friend, Brandon Payne, decided to go into business together and applied for a loan from the Cottonport Bank in the amount of $60,000. The loan officer was Shane Stout. Mr. Stout is also a licensed agent for Eagle American Life Insurance Company, which company is a wholly owned subsidiary of The Cottonport Bank. Mr. Stout approved the loan and took as collateral a $60,000 certificate of deposit held by the bank in the name of Jeramy Dauzat. Since Mr. Stout was also a licensed agent for Eagle American Life Insurance Company, he offered to sell Jeramy and Brandon “debt protection” coverage in the form of a credit life policy. Mr. Soute testified: “I asked them about debt protection or debt cancellation coverage and they asked me what it was, so I told them credit life would cover the debt in the event of one of their deaths. They asked how much it would cost. The premium was around fifteen hundred dollars. They said could we add it to the loan and I told them yes.”

Four months after obtaining the loan, on January 5, 2004, Jeramy was at home with friends, Kristie Lynn Jeansonne and Sarah Elizabeth Grundy. He offered to show the girls how to play Russian Roulette. He took a pistol, placed one bullet in the chamber, spun it, lifted the gun to his head, and pulled the trigger. He was killed instantly. The coroner, Dr. May-eaux, ruled the shooting accidental. The Cottonport Bank seized the certificate of deposit held in Jeramy’s name as payment for the $60,000 loan and its subsidiary, Eagle American Life Insurance Company, refunded the premium and declined payment on the credit life policy. Christine Dauzat filed a Petition for Payment of Credit Life Insurance. Eagle American filed a Motion for Summary Judgment, asserting Jeramy failed to disclose his treatment for depression and post-traumatic stress disorder on the credit life policy application and therefore misrepresented a material fact. The Plaintiff filed a counter Motion for Summary | judgment. A hearing was held on both motions, and the trial court found in favor of Eagle American Life Insurance Company. Plaintiff appeals. We reverse.

LAW AND DISCUSSION

The Eagle American credit life policy application form contains the following health question:

1. Has any proposed insured ever been treated for any of the following:
Heart attack, chest pain, arteriosclerosis, any disease of the heart, high blood pressure, cancer, tumors, blood disorder, diabetes, paralysis, Acquired Immune Deficiency Syndrome (AIDS), or AIDS Related Complex (ARC), or any other disorder of the immune system, any disease of lungs, brain, liver, stomach, intestines, kidney or ulcer, mental or nervous disorder, or any other illness or injury requiring surgery or hospital care in the past 5 years. (Emphasis added.)

Eagle American contends Jeramy checked the “No” box in response to this health question and signed the form. Eagle American argues since Jeramy was treated by Dr. Mayeaux and Dr. Belaga for depression and post-traumatic stress disorder within five years of the loan application and failed to disclose this information, he intentionally misrepresented a material fact. Eagle American seeks to avoid payment under the policy under La.R.S. 22:619.

Louisiana Revised Statutes 22:619 provides, in relevant part:

A. Except as provided in Subsection B of this Section and R.S. 22:692, and R.S. 692.1, no oral or written misrepresentation of warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

Under this provision, an insurer seeking to avoid recovery under a life insurance Impolicy has the burden of proving: (1) a false statement was made with the actual intent to deceive; and (2) the misrepresentation materially affected the risk assumed by the insurer. Pryor v. State Farm Mutual Automobile Ins. Co., 96-187 (La.App. 3 Cir. 8/30/95), 663 So.2d 112; Lincoln National Life Insurance v. McCollough, 621 So.2d 204 (La.App. 3 Cir.1993); Swain v. Life Insurance Company of Louisiana, 537 So.2d 1297 (La.App. 2 Cir.), writ denied, 541 So.2d 895 (La.1989). The test of materiality is whether knowledge of the facts would have influenced the insurer in determining whether to assume the risk or in fixing the premium. Pryor, 663 So.2d 112. The standard of proof for determining whether an insured has the intent to deceive was articulated by the supreme court in Johnson v. Occidental Life Insurance Co. of Cal., 368 So.2d 1032 (La.1979), quoting Watson v. Life Insurance Co. of Louisiana, 335 So.2d 518, 521 (La.App. 1 Cir.1976), as follows:

The intent to deceive must be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that the insured recognized the materiality of the misrepresentations.

Id. at 1036.

A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits show there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ.P. art. 966(B)(2). “A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute.” Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. In the present case, Eagle American must prove Jeramy had an intent to deceive the insurer. His intent must be determined from the circumstances surrounding his application for a credit life policy. We have examined [ fithe facts and find there is conflicting evidence as to a material fact, namely, whether Jeramy personally checked or marked the health form box or whether the form was completed by the agent and handed to him for his signature.

The Plaintiff contends Jeramy did not personally mark the “No” box on the health question. In support of this position, the Plaintiff submitted the affidavit of Brandon S. Payne. Brandon stated neither he nor Jeramy were required to complete a questionnaire concerning the state of their health. Further, he declared neither he nor Jeramy were required to read health questions • or check appropriate blanks on the credit life insurance applications. Significantly, Brandon stated “he was only required to sign the application for credit life insurance at the bottom of the page in the blank provided for “Signature of Proposed Insured Debtor.” It is undisputed Jeramy and Brandon went to the Cottonport Bank to apply for a business loan and were not seeking to obtain an insurance policy. In fact, Shane Stout, the loan officer and agent for Eagle American, testified he offered to sell “debt protection” insurance to the two boys. He had to explain to, Jeramy and Brandon what a credit life policy was and that it provided for repayment of the loan. The premium of fifteen hundred dollars was added to the amount of the loan., It is also undisputed Mr. Stout was a loan officer for the Cottonport Bank and, at the same time, was an agent for Eagle American Insurance Company, which is a wholly owned subsidiary of the bank. The Plaintiff contends Mr. Stout, who was in a superior business position, filled out the application and handed it to Jeramy to sign. The facts in Swain, 537 So.2d 1297 are similar to the facts in this case. In Swain, the plaintiffs husband, Mr. Swain, purchased an automobile from Red River Motor Company. Financing was obtained through GMAC. Mr. Swain also purchased a credit life policy. The credit life policy was issued by Life Insurance Company of Louisiana and sold through its agent at the car 17dealership, Red River Motor Company. When Mr. Swain died of lung.cancer, the insurer, refused to pay, asserting Mr. Swain had made false claims on the insurance application in that he was not in “sound health.” Following trial, the trial court found in favor of the defendants. The appellate court reversed stating:

Mr. Swain agreed to purchase credit life insurance at the suggestion of Mr. Shearer, an acquaintance of Mr. Swain’s who worked for the defendant and was present at Red River that day.... [T]he car salesman asked Mr. Swain no questions about his health, although Mr. Swain was on crutches while at the dealership. Mrs. Swain was uncertain of who typed in the blanks on the credit life application form, though she did know that it was done by someone at Red River. Mr. Swain was not instructed or requested to read the credit life application form, and he did not read it. He merely signed the application when it was presented to him with the other papers that required his signature.
[I]n the case of an insurance contract, when the insurance company has prepared the policy and the application form, and the insured is asked to do nothing more than sign it, the insurer cannot avoid liability on grounds that the information contained in the application was not correct.

Id. at 1299,1300.

In support of its position, Eagle American offers the testimony of Shane Stout which contradicts Brandon’s testimony. Mr. Stout testified he saw Jeramy complete the application and, in particular, he directed Jeramy’s attention to the health questions. He asked Jeramy if he had any questions about any part of the application and witnessed Jeramy check the appropriate box and sign the form.

Eagle American also offers the affidavits of A.J. Roy, III and Daniel P. Packer, both representatives of Eagle American, and argues “had Mr. Jeramy Dauzat properly disclosed the requested health information at the time of the loan closing Eagle American Life Insurance Company would not have agreed to write a policy on behalf of Mr. Jeramy Dauzat.” However, this assertion - does not relieve Eagle American of its burden of proving that Jeramy deliberately deceived the company in order to obtain insurance coverage. Because of the conflicting testimony by the only two | spersons present at the meeting, other than the deceased, we find this case is not appropriate for summary judgment. Therefore, we reverse the decision of the trial court and remand for further proceedings.

DECREE

Based on the foregoing review of the record, we reverse the decision of the trial court granting the Motion for Summary Judgment in favor of Eagle American Life Insurance Company and remand for further proceedings. All costs of this appeal are assessed against Eagle American Insurance Company.

REVERSED AND REMANDED.