author: GAIDRY, J. WELCH, J.,

text:
    Cherrie LEIGHOW v. Kelly M. CRUMP, et al.
    No. 2006 CA 0642.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.
    Rehearing Denied May 11, 2007.

      A.J. Paul Fredrickson, II, Baton Rouge, for Plaintiff-Appellant Cherrie Leighow.
    Henry G. Terhoeve, Baton Rouge, for Defendants-Appellees Kelly Crump and USAA Casualty Insurance Company.
    Robert D. Hoover, Baton Rouge, for Intervenor-Appellant Kean’s The Cleaner, Inc.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

| j>The plaintiff, Cherrie Leighow, and the intervenor, Kean’s the Cleaners, Inc. (Kean’s), appeal a judgment on a jury verdict in favor of Ms. Leighow, awarding her special damages, but no general damages, as a result of the accident at issue. Ms. Leighow and Kean’s also appeal the trial court’s denial of their subsequent motions for new trial or judgment notwithstanding the verdict (JNOV). The issues on appeal are whether the jury erred in failing to award any amount for Ms. Leighow’s general damages, in light of its awards of special damages, and whether it erred in awarding only a fraction of the medical expenses Ms. Leighow claims as a result of this accident.

After a thorough review of the record and applicable law, we affirm the judgment in part as to the award for medical expenses. We reverse the judgment in part on the issue of general damages, finding an abuse of discretion, and amend the judgment to render an award for this proven element of damages.

THE ACCIDENT

On December 5, 2000, the defendant, Kelly Crump, drove her vehicle (a Suburban sport-utility vehicle) into the drive-through lane at Kean’s on Jefferson Highway. Ms. Leighow, a Kean’s employee, saw Ms. Crump drive up, retrieved her clothing, and went outside to put it in Ms. Crump’s vehicle. As she approached the vehicle, Ms. Crump stepped out of the vehicle and asked Ms. Leighow to wait, as her dogs were in the back seat of the vehicle. Ms. Crump exited the vehicle, but inadvertently failed to put the gear in park. When she lifted her foot off of the brake, the vehicle rolled, knocking Ms. Crump into Ms. Leighow, causing them both to fall to the ground.

I?Both Ms. Crump and Ms. Leighow were taken by ambulance to Our Lady of the Lake Regional Medical Center (OLOL) for treatment of injuries sustained as a result of the accident. The extent of the injuries suffered by Ms. Leighow lies at the core of the issues presented in this appeal and is addressed in the following discussion.

PROCEDURAL HISTORY

Ms. Leighow filed a petition for damages against Ms. Crump and her insurer, USAA Casualty Insurance Company, as well as her own underinsured motorists insurer, Patterson Insurance Company (Patterson). Patterson subsequently became insolvent and Ms. Leighow amended her petition to add or substitute the Louisiana Insurance Guaranty Association (LIGA) as a defendant. She ultimately settled with and dismissed LIGA from the suit. Kean’s and Louisiana United Business Association Self Insured Fund (LUBA) intervened in the suit asserting their subrogation rights workers’ compensation benefits and medical expenses paid to or on behalf of Ms. Leighow for her work-related injuries.

At the conclusion of trial, the jury returned a verdict finding Ms. Crump 100% at fault (and finding Ms. Leighow free from fault) in causing the accident. The jury also found that Ms. Crump’s fault was the legal cause of Ms. Leighow’s injuries and damages. The jury awarded the following damages:

[4Past medical and/or dental expenses: $5,500.00
Past and future pain and suffering: $ 0
Past and future mental anguish: $ 0
Loss of Enjoyment of Life: $ 0
Past lost wages: - $5,000.00

A judgment in accordance with the jury verdict was rendered in favor of Ms. Lei-ghow, but also incorporating the interve-nors’ subrogation claims to the extent of the amount awarded, awarding Kean’s and LUBA $10,500.00 together with costs and legal interest. Ms. Leighow filed alternate motions for new trial or JNOV, which were denied by the trial court. This appeal by Ms. Leighow and the intervenor followed.

EVIDENCE OF INJURIES AND TREATMENT

The record provides the following evidence with regard to Ms. Leighow’s injuries. It is undisputed that Ms. Leighow fell to the ground, but disputed whether she struck her head on the pavement of the parking area. She was transported by ambulance to the hospital emergency room, where she complained of chest pain, trouble breathing, and pain to her back, neck, and head. At the emergency room, she was examined by Dr. Ronald Coe, who found no physical signs of concussion or loss of consciousness. However, he did make a notation of concussion in her | schart, as she claimed to have been confused. She had no dizziness, did not vomit, and had no double vision. She was prescribed Lortab and Advil for pain and released with instructions to return if her symptoms changed or worsened.

According to both Ms. Leighow and her daughter Danielle, once she got home, Ms. Leighow began to experience extreme dizziness, leading to nausea and vomiting. She returned to the emergency room four days later. She was then prescribed Phenergan for the nausea and vomiting and another medication for pain.

Ms. Leighow testified that because of continuing dizziness, nausea, and vomiting, she sought further treatment at Industrial Medical Clinic in mid-December, 2000. She was placed on a different anti-nausea medication and referred to Peak Performance for physical therapy. She testified that she attempted two sessions of physical therapy, but was unable to continue because any head movement immediately exacerbated the dizziness and nausea.

On January 3, 2001, Ms. Leighow consulted Dr. John Clark, a specialist in physical medicine and rehabilitation, complaining of the same symptoms: primarily nausea, vomiting, dizziness, vertigo with ear discomfort, right frontal headache, and also cervical and bilateral shoulder discomfort together with left chest wall pain. Dr. Clark diagnosed vestibular dysfunction, and based on the history he attributed her condition to the accident at issue. Dr. Clark was of the opinion that Ms. Leighow’s condition was disabling. He recommended that she be examined by an ENT physician, Dr. James Soileau, who specialized in treatment of that particular condition.

She also consulted Dr. Stanley Peters on February 7, 2001. She presented to him with “inner ear problems” and complaints of vertigo, nausea, blurred vision, headaches, right ear pain, jaw pain, and “roaring” in both ears. He ordered diagnostic testing. Ms. Leighow was unable to successfully complete all of that|fitesting, rendering the results inconclusive. Dr. Peters referred Ms. Leighow to Dr. Soileau, Dr. Zuckerman (a neurologist), and Dr. Fivgas (an ophthalmologist).

Ms. Leighow was seen by Dr. Fivgas, who ruled out any retinal problems. He in turn referred her to Dr. Bradley Black, an ophthalmologist specializing in adult stra-bismus (a normal degenerative condition often occurring in persons after the age of forty, but which can also be caused by a closed-head injury) and ocular motility disorders. Ms. Leighow saw Dr. Black on February 26, 2001. Dr. Black ordered prescription glasses to help correct her double vision. When he saw Ms. Leighow again in October 2001, he found that she was doing better.

On June 5, 2001, Ms. Leighow finally saw Dr. Soileau, to whom she had been referred earlier by Dr. Clark. Dr. Soileau was an ENT specialist and neuro-otologist with a practice limited to vertigo and complicated hearing and balance problems. He testified that all of her symptoms, with the exception of the double vision and the ear pain, were consistent with vestibular disturbance and the dislodging of the crystals in the ear. He testified that that condition can be caused by “any number of things: trauma ... sometimes just the bump on the cabinet door, getting in and out of the trunk of your car ... inner ear disturbances, concussions, changes in ear fluid pressure, viruses.” Based on the history of the accident at Kean’s and the reported symptoms of immediate dizziness that worsened rapidly, Dr. Soileau expressed the opinion “that in all probability the benign positional vertigo (BPPV) is secondary to the accident.” He scheduled Ms. Leighow for particle repositioning to resolve the positional vertigo, which involved moving the “crystalline debris ... from the canal back into the chamber that it came from and allowing] this crystalline debris to restick so that it doesn’t keep bouncing around triggering symptoms.” Dr. Soileau performed the repositioning treatment to both the right and left ears, and at her follow-up visit on January 2, 2002 found her to be doing fairly well. Unfortunately, Ms. Leighow was involved |7in another automobile accident on January 17, 2002, which caused her symptoms to regress and delayed her recovery.

In rebuttal of Ms. Leighow’s evidence, the defendants presented evidence of relevant prior medical history which had not' been provided by Ms. Leighow to her treating physicians, 'summarized as follows:

(1) 1987: Visits to OLOL for complaints of nausea and vomiting;

(2) 1988: An automobile accident prompting Ms. Leighow to be seen in a hospital emergency room with complaints that she was groggy and felt she was “floating”; she also was found to be anxious and had questionable loss of consciousness;

(3) 1992: She was seen by a neurologist for nausea, vomiting, and headaches. She saw this physician for an accident in 1992. She denied that she saw a doctor for nausea;

(4) 1996: She was seen by a physician presenting a history of taking medication for dizziness and complaining of a cervical disc, depression, and TMJ symptoms;

(5) July 1998: She was seen in a hospital emergency room with complaints of nausea and vomiting following another automobile accident;

(6) November 1998: She again went to an emergency room after an accident, complaining of dizziness. She was unsure if she had loss of consciousness. She was ultimately treated, by a psychiatrist for posttraumatic stress disorder. She also had panic attacks and could not remember numbers after that accident;

(7) January 1999: Ms. Leighow was seen in an emergency room after another-accident, with complaints of nausea, dizziness, blurred vision, and passing out. At the trial of this action, she vehemently denied that prior accident occurred;

|‘s(8) February 1999: She was seen by a physician, Dr. Lea, with complaints of blurred vision, dizziness, depression, and anxiety;

(9) February 1999: She was seen at OLOL with complaints of memory loss, depression, and anxiety. She was also treated by a physician, Dr. Bondy, for post-traumatic stress reaction;

(10) Ms. Leighow admitted that prior to the accident at Kean’s, she experienced panic attacks, during which her heart would “beat hard” and she would get “dizzy” and “sick .to her stomach,” and would vomit. She also suffered from migraine headaches.

SPECIAL DAMAGES (MEDICAL EXPENSES)

Ms. Leighow introduced documentary evidence that she incurred medical expenses totaling $15,009.30, all of which she contends were caused and necessitated by the accident at issue. She contends that the jury’s award for past medical expenses in the amount of $5,500.00 is manifestly erroneous in light of the documentary and medical evidence presented, as well as the jury’s finding that she was disabled from working as a result of her injuries for a period of approximately seven months (implicit in the award for past lost wages, which has not been challenged on appeal by any party).

We agree with the defendants that the applicable standard of review of factual findings requires us to give great deference to the factfinder’s conclusions and to refrain from reweighing the evidence or making credibility determinations. See Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). We also agree with the defendants’ contention that the weight given to the testimony of a treating physician must take into consideration the accuracy of the history provided the physician by the patient. See Magee v. Abek, Inc., 04-2554, p. 5 (La.App. 1st Cir.4/28/06), 934 So.2d 800, 807.

|flThe medical evidence amply confirms the defendants’ claim that the history provided to the treating physicians by Ms. Leighow was woefully inaccurate and incomplete. Indeed, our review of the record reveals that she had been involved in several prior accidents, and at least one subsequent accident. The record also reveals that Ms. Leighow had complained of the same or similar symptoms after those accidents as she reported suffering after this accident: dizziness, nausea and vomiting, blurred vision, and neck and back pain, all of which were not reported as part of her medical history to her treating physicians. Ms. Leighow further admitted at trial that she had filed claims and reached monetary settlements for the injuries sustained as a result of each of these other accidents. These facts bore upon Ms. Leighow’s credibility and the accuracy of the medical causation opinions of her treating physicians.

The jury quite obviously accepted the defendants’ position that the majority of Ms. Leighow’s complaints and symptoms following the accident at issue either were not proven to have been caused by the accident at issue or were attributable to her customary “response style” to accidents, rather than to actual injury. Given that these findings were based upon credibility determinations and weighing of conflicting evidence by the jury, we cannot disturb them as long as the record provides a reasonable factual basis for them. While the record supports the finding that Ms. Crump’s negligence legally caused Ms. Leighow some injuries, it also supports the jury’s awarding less than the full amounts claimed for treatment of her claimed injuries.

Because there is a reasonable factual basis in the record to support the jury’s credibility determinations and factual conclusions, the jury was not clearly wrong in choosing to award less than the full amount of medical expenses claimed to have been incurred as a direct result of the accident at issue.

|inGENERAL DAMAGES

However, for the following reasons, we find that the jury abused its discretion in failing to award any amount for Ms. Leighow’s general damages after finding the injuries were, at least in some part, caused by Ms. Crump’s negligence and after also finding that the injuries suffered by Ms. Leighow rendered her disabled from working following the incident, reflected by its award for past lost wages.

Louisiana jurisprudence has long held that where there is a factual finding that a plaintiff was injured and incurred medical expenses as a result of another’s fault, the failure to award general damages is legal error, which requires the reviewing court to assess, de novo, the amount of general damages appropriate under the circumstances. Marcel v. Allstate Ins. Co., 536 So.2d 632, 635 (La.App. 1st Cir. 1988), writ denied, 539 So.2d 631 (La. 1989). However, in Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, our supreme court established an “abuse of discretion” standard of review for claimed inconsistency in damage awards, carving a narrow exception to the fact scenario underlying the jurisprudential general rule. In Wainwright, the supreme court held that “the particular facts of each case are ultimately determinative” as to whether awards for different elements of damages in personal injury cases are inconsistent, and that “there is no bright line rule at work” in situations where special damages are awarded but no general damages are awarded. Wainwright, 00-0492 at pp. 8-9, 774 So.2d at 76. Thus, while it is still true that “a jury verdict awarding medical expenses but simultaneously denying damages for pain and suffering will most often be inconsistent in light of the record,” it cannot be concluded that such a perceived inconsistency always amounts to legal error. Wainwright, 00-0492 at pp. 6-7, 774 So.2d at 75.

lnThe Wainwright decision did not, however, go so far as to expressly abrogate the long-standing line of jurisprudence that it is legal error to award special damages for a personal injury, yet simultaneously refuse to award general damages, for injuries with objective symptoms or findings. Instead, the court recognized a narrow exception to that general finding of inconsistency, applicable where the evidence supports a finding that a person incurred special damages (medical expenses) but did not necessarily experience compensable pain and suffering, because the medical treatment was precautionary or to simply evaluate whether or not physical injury occurred. Wainwright, 00-0492 at pp. 10-11, 774 So.2d at 77-78.

But the case before us is simply not the type of case contemplated in Wainwright, where special damages have been incurred without attendant physical pain and suffering. In a subsequent decision, Green v. K-Mart Corp., 03-2495, p. 8 (La.5/25/04), 874 So.2d 838, 844, the Supreme' Court found the jury “abused its discretion” in failing to award general damages while awarding “a substantial amount for past and future medical expenses,” distinguishing Wainwright. (Emphasis supplied.) The jury here specifically found that the plaintiff suffered injuries causally related to the accident, which required medical attention and resulted in some disability and resulting loss of earnings. Therefore, as ■ in Green, the jury’s failure to award general damages together with its award for special damages constitutes an abuse of discretion, warranting a de novo review of the record and the rendering of an appropriate award by this court.

Reading Wainwright and Green together, it is clear that the supreme court was consistent in applying an “abuse of discretion” standard of review under both factual scenarios, despite the differing results in those cases. In Green, the supreme court squarely held that “[flailing to make a general damage award was an abuse of discretion,” rather than legal error. Green, 03-2495 at p. 8, 874 So.2d at 844. (Emphasis supplied.) Thus, if correction of the verdict is based upon finding an abuse of discretion, rather than manifest or “legal” error, our award must necessarily be limited to raising the inadequate general damages award to the lowest amount reasonably within the jury’s discretion. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1977). This is because “[i]t is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” Id. (Emphasis supplied.)

Considering the particular, facts and circumstances of this case, the jury’s factual findings implicit in the special damages awards, and the gamut of general damages awards for similar injuries, we find the appropriate award of general damages for Ms. Leighow’s pain and suffering to be $3,500.00, the lowest amount reasonably within the jury’s discretion and consistent with the special damages awards. Based upon our disposition of the merits, it is unnecessary for us to address Ms. Leighow’s assignment of error as to the trial court’s denial of her motion for JNOV.

For all the foregoing reasons, the judgment of the trial court is reversed in part and amended to include a general damage award for Ms. Leighow’s past pain and suffering in the amount of $3,500.00, allocating the amount of that award to the intervenor, Kean’s. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendants.

AFFIRMED IN PART AND REVERSED AND AMENDED IN PART.

WELCH, J., concurs in part and dissents in part.

WELCH, J.,

Concurring in Part and Dissenting in Part.

|,I respectfully concur in part and dissent in part from the majority opinion. I concur with the majority that the jury’s failure to award general damages was legal error.. However, I feel that the general damage award rendered by the majority is woefully inadequate based on the evidence in the record, notwithstanding the medical evidence of Ms. Leighow’s prior accidents and symptomology, for all of the following reasons. I dissent from the majority’s conclusion and application of the Coco standard in rendering the award for general damages. For reasons more detailed later herein, I believe the longstanding jurisprudential application of de novo review in the type of case before us remains unchanged after Waimvright, as reflected in the Supreme Court’s subsequent opinion in Green.

The evidence conclusively establishes that as a result of hitting her head on the pavement during the incident in question, Ms. Leighow sustained a concussion, resulting in a vestibular disturbance condition, which caused her to suffer symptoms — benign positional vertigo, consisting of unrelenting and worsening dizziness, nausea and vomiting, which her treating physician, Dr. Fivgas, characterized as disabling. Once properly diagnosed, she received the repositioning treatment on the crystals in her ears which solved the problem, albeit seven to eight months later.

In stark contrast, the defendant’s evidence of prior complaints of dizziness and nausea, following other incidents, reveals that after all of these incidents, the | gsymptoms abated and resolved to the point where she returned to full function. Moreover, none of these documented prior complaints of dizziness resulted in the severe and disabling condition that resulted immediately following the incident at Kean’s. Indeed, prior to the incident at issue, she was, and had been for approximately two year, symptom free and gainfully employed, with no complaints. The majority goes to great lengths to establish the plaintiffs involvement in other prior incidents; however, there is no legal basis to “penalize” a plaintiff simply because of the existence of prior accidents. Each case must be decided on the individual facts presented and legal causation must be proved by sufficient competent evidence. In this case, there is NO medical evidence that the very temporary dizziness and nausea occasionally exhibited by Ms. Leighow perhaps as a “reactionary response” to trauma in the past was anything more than that — a temporary response to trauma. None of these complaints necessitated more than the initial treatment, after which they resolved and no further treatment was sought by Ms. Leighow. In glaring contrast, the medical evidence conclusively reveals that the dizziness and ’ nausea suffered by Ms. Lei-ghow after her head hit the pavement at Kean’s was actually a much worse condition that she had ever suffered before— vestibular disturbance, which the medical evidence establishes is wholly consistent with a blow to the head as suffered by Ms. Leighow in the Kean’s incident. To the extent that the verdict reflects penalizing the plaintiff for prior wholly unrelated accidents, I find it is manifestly erroneous based on the evidence in this record. I also must note the incongruence in the jury’s finding that the plaintiff was rendered disabled for at least seven and a half | omonths as a result of this incident only, as reflected in its award for the full amount of her lost wages, with its failure to award damages for pain and suffering associated with this finding of disability.

Additionally, although the physicians who treated Ms. Leighow for her condition following this incident testified that they were not aware of all of the prior complaints of dizziness and nausea following other accidents, none of these physicians testified that this information would have changed their opinion that the vestibular dysfunction which she suffered immediately following the Kean’s incident was consistent with the mechanism of injury and caused by her head hitting the pavement on December 5, 2000. Indeed, Dr. Soileau, a renowned expert in the diagnosis and treatment of vestibular dysfunction, testified that although Ms. Leighow did not tell him she suffered from dizziness prior to this incident, she did report to him that she had a previous head injury. However, based on the fact that “she complained about this immediately after [the Kean’s incident], I mean, it’s a pretty pure, plain thing. It’s the most common reasons for this happening. ... I don’t know anything else that would have -” (His testimony was then interrupted by defense counsel’s next question.) Dr. Soileau later testified that given Ms. Leighow’s results on the testing he performed, and the lack of certain findings “sort of precludes a major disturbance of vestibular dysfunction preceding that [the Kean’s incident].”

Finally, in addition to my opinion that the evidence in the record established conclusively that the incident at Kean’s caused Ms. Leighow to suffer from vestibular dysfunction, I also find that the established, uncontradicted facts warrant application of the jurisprudential legal presumption as set forth in Housley v. Cerise, 579 So.2d 973 (La.1991) that a medical condition producing disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, but shortly after the accident, the disabling condition | manifested itself, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Prior to this accident, Ms. Leighow was gainfully employed by Kean’s without any restrictions or limitations. She also had no complaints and was exhibiting none of the symptoms, which were manifested immediately following the incident at Kean’s and continued worsening thereafter. Indeed, the fact that upon finally getting the correct diagnosis and the proper treatment, Ms. Lei-ghow’s symptoms abated and the condition dramatically improved further supports that her condition was caused by the Kean’s incident.

Therefore, the jury erred in failing to award general damages based on the evidence in the record regarding the symptoms related to Ms. Leighow’s vestibular disturbance, as well as the effect it had on her life, from the date of the accident through January, 2002, when she was ultimately diagnosed and successfully treated by Dr. Soileau.

However, before reviewing the evidence and rendering an award, I must note my disagreement with the majority’s application of the limiting Coco standard (awarding the lowest amount reasonably within the jury’s discretion), rather than a de novo review. As noted by the majority, Louisiana jurisprudence has long held that where there is a factual finding that a plaintiff was injured and incurred medical expenses as a result of another’s fault, the failure to award general damages is legal error, which requires this court to assess, de novo, the amount of general damages appropriate under the circumstances. However, the majority concludes that the Wainwright decision, which changed the standard of review of a jury’s verdict failing to award general damages, to an abuse of discretion standard, also changed the standard by which to render an award from de novo to the limiting Coco standard. I disagree. The Coco standard applies, logically, when an award has been made by the jury, but the amount of that award is deemed |sto constitute an abuse of discretion. The standard is expressly stated as applying to an inadequate award that must be adjusted by the appellate court. Coco, 341 So.2d at 335. As noted by the majority, Wainwright was a very fact specific scenario and the exception created thereby was very narrow and limited to the scenario where special damages are awarded, general damages are not, and it is determined that no physical injury ever resulted. There is no indication, either express or implicit, in the Wainwright decision that the Supreme Court intended that the change in the standard of review in those very limited exceptional cases would be interpreted as abrogating the long-standing requirement that a de novo review be conducted by this court in the rendering of general damages when the jury has been found to have abused its discretion by failing to render such award. In fact, in the Supreme Court’s subsequent case of Green, (also mentioned by the majority) the court found, as here, that the jury abused its discretion, and it affirmed the court of appeal’s de novo review and rendering of damages, thus, implicitly confirming that the limited holding in Wainwright did not change the de novo standard applicable for the rendering of an award of general damages, when the jury abused its discretion in failing to render that award, but also awarded special damages. I agree with the majority that the Supreme Court consistently applied the “abuse of discretion” standard in both cases, but it did so only in relation to the jury’s failure to render an award. The majority seems to ignore that after doing so, and finding an abuse of discretion, the Green court explicitly affirmed the appellate court’s de novo review:

Here, the court of appeal correctly determined that the jury abused its discretion in failing to award general damages while awarding a substantial amount for past and future medical expenses ....
The court of appeal conducted a de novo review of the record [to render an award for general damages].... The court of appeal’s decision to award general damages in the amount of $500,000 is af-fírmed.

Green, 03-2459, p. 8; 874 So.2d at 844.

Therefore, my review of the evidence related to damages is de novo.

Both Ms. Leighow and her daughter who lived with her testified that almost immediately after returning home from the emergency room on the date of the incident, Ms. Leighow appeared dazed and confused and was overcome by nausea so bad that any slight movement of the head or eyes caused her to throw up. This continued and worsened daily to the point where she was either so nauseated she could not move, vomiting or dry heaving all throughout the day. The dizziness and vertigo prevented her from engaging in any activity; she could only sit still on a couch, without moving her head. She could not read or watch TV, as any movement of her eyes also exacerbated her symptoms. The dislodging of the crystals in her ear, in addition to preventing her from moving, caused her ear pain, discomfort, and a “roaring” in both ears. As time progressed, she also began suffering from blurred and double vision as well as jaw pain. Despite her numerous and consistent attempts to get the proper treatment, this did not happen until she saw Dr. Soileau, and her symptoms persisted on a daily basis for at least eight months; she and her daughter both testified they began to see improvement in August, 2001, when the repositioning treatments began.

The medical experts and Ms. Leighow’s treating physicians consistently confirmed that vestibular disturbance caused by a closed head injury would cause the symptoms reported by Ms. Leighow, although due to the subjective nature of such injury, they were not always manifested upon physical examination. (As succinctly stated by Dr. Peters, when dealing with vertigo and labyrinthine, “you can’t see these problems.”) The evidence does confirm that she was unable to ^properly perform or complete certain diagnostic tests due to the dizziness and nausea, and she was noted to be gagging. There is no evidence to contradict the testimony of Ms. Leighow and her daughter regarding her symptoms and the effect they had on her life; indeed, the medical testimony confirmed that anyone suffering from any kind of vestibular disturbance is truly “miserable.”

My review of jurisprudence of similar injuries reveals a very broad range of appropriate general damage awards for injuries related to post-concussion syndrome. The great variance in the awards seems to be based on factors such as the permanence of the condition and the extent of the symptoms. On the lower range, awards if $75,000 in general damages are found in cases where concussions resulted in headaches and dizziness for a temporary length of time. See e.g., Frazer v. St. Tammany Parish School Bd., 99-2017 (La.App. 1st Cir.12/22/00), 774 So.2d 1227; Hoyt v. State Farm Mut. Auto. Ins. Co., 623 So.2d 651 (La.App. 1st Cir.), writ denied, 629 So.2d 1179 (La.1993). Notably different in the cases in the lower range of awards is the absence of a diagnosis of vestibular dysfunction and no mention of the disabling symptoms caused thereby of nausea, vomiting and dry heaving. At the higher range, between $200,000 and up to one and a half million dollars awarded in general damages, are cases where the vestibular dysfunction condition resulted from antibiotic toxicity rather than a head injury; and, in those cases, the condition is permanently disabling and not treatable. See e.g., Bolton v. Nagalla, 609 So.2d 1134 (La.App. 2nd Cir.1992), writ denied, 615 So.2d 338 (La.1993); Hall v. Brookshire Bros. Ltd., 2002-2404 (La.6/27/03), 848 So.2d 559. The mid-range of cases awarding general damages for similar injury include Whatley v. Regional Transit Authority, 563 So.2d 1194 (La.App. 1st Cir.), writ denied, 569 So.2d 965 (La.1990), where general damages in the amount of $150,000 were awarded for post concussion syndrome resulting in benign positional vertigo. In Whatley, although the plaintiffs symptoms of Rdizziness and vertigo occurred “only when she adjusts her head in certain positions,” those positions were inconsistent and it was uncertain whether her condition was curable.

Although Ms. Leighow’s condition was of limited duration and she was finally relieved of almost all of her symptoms after the repositioning treatments performed eight months later, her symptoms are otherwise most closely aligned with those experienced by the plaintiff in Levy v. Bayou Industrial Maintenance Services, Inc., 2003-0037 (La.App. 1st Cir.9/26/03), 855 So.2d 968, writs denied, 2003-3161 and 2003-3200 (La.2/6/04), 865 So.2d 724 and 727, where we affirmed a total general damage award of $225,000 in favor of a plaintiff who suffered from post concussion syndrome following a head injury. Ms. Levy’s post concussion symptoms were very similar to Ms. Leighow’s in that her main complaints centered around her constant dizziness, balance problems and headaches, ranging in severity from light-headedness to vertigo. Although Ms. Levy suffered from blurring vision and an inability to maintain her balance, there is no mention in that case of the daily nausea and vomiting additionally experienced by Ms. Leighow. Most similarly, Ms. Levy, as did Ms. Leighow, was finally significantly improved after having repositioning treatments to the crystals in her ear, performed by the same Dr. Soileau, several months after the initial head injury. However, Levy’s condition was still “partially permanent,” and in addition to the repositioning treatments, Ms. Levy, unlike Ms. Leighow, necessitated surgery to repair a fistula.

Considering all of the foregoing, I find an appropriate award for Ms. Leighow’s general damages suffered as a result of the incident at Kean’s to be $100,000, and strongly disagree with the woefully inadequate award of $8,500 rendered by the majority.

      . Certain facts regarding the mechanics of the accident are disputed, such as whether the car door actually struck Ms. Leighow or whether it struck only Ms. Crump, who then landed on Ms. Leighow, causing them both to fall to the ground. The parties' testimony also differs on whether Ms. Leighow was dragged by the vehicle after she fell to the pavement. The parties dispute the extent of Ms. Leighow's physical injuries, such as visible cuts, abrasions, bruises, or bumps immediately following the accident. Finally, the parties dispute whether or not Ms. Leighow was rendered temporarily unconscious following the fall. But the parties do not dispute that Ms. Leighow was struck and fell to the ground. Inasmuch as the jury's verdict was based on factual findings, they required credibility determinations, which were made by the jury and are not to be reweighed or disturbed by this court, as the record contains reasonable evidence to support such findings. See Stobart v. State, through Dep’t of Transp. And Dev., 617 So.2d 880, 882 (La. 1993).

      . Relative to fault and causation, the jury verdict read as follows:
      Do you find that Kelly Crump was at fault in causing the accident/incident which is the subject matter of this lawsuit?
      YES X NO_
      2. If the answer to question number 1 was "Yes”, do you find that the fault of Kelly Crump was the legal cause of any injuries/damages to Cherrie Leighow?
      YES X NO
      3. Do you find that Cherrie Leighow was at fault in causing the incident ....
      YES __ NO X

      5. Please state the percentage of fault, if any, of the following for the accident which is the subject matter of this lawsuit:
      Kelly Crump 100%
      Cherrie Leighow 0%
      Other person or entity 0%

      . Under this analysis, it is still conceivable that in some cases, the failure to make an award of general damages might constitute manifest or "legal” error, if the inconsistency can somehow be determined to go beyond an abuse of discretion. In such cases, a de novo award, unlimited by the abuse of discretion standard, might be appropriate. It must be kept in mind, however, that de novo review of the record for the purpose of adjusting a general damages award under the Coco rule is different from a true de novo quantum award unencumbered by the Coco rule. At any rate, our disposition of the present case does not require us to attempt formulation of such an analysis.

      . I also find it noteworthy that many of these medical records revealing that Ms. Leighow sought treatment for dizziness, depression, posttraumatic stress disorder, anxiety, and panic attacks wére documented as being related to Ms. Leighow’s son being tragically killed in á head-on collision in 1994. In corroboration thereof, Ms. Leighow testified that since that time, she had been treated for "nerves" and was put on antidepressant medication, which made her nauseated and caused occasional vomiting. However, the last documented treatment associated with this was almost two years prior to the accident, during which time there is no evidence of any recurring symptoms.

      . To the extent that the majority opinion seems to distinguish Green on the basis that the jury in that case awarded future medical expenses, I find that to be a distinction without a difference, given that in Ms. Leighow’s case, she admitted that her condition was resolved after the successful treatments with Dr. Soileou prior to trial, thus, she did not seek an award for future expenses. The abuse of discretion in both Wainwright and Green (and applicable in this case) is based on the jury's failure to award generals, while also awarding specials.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Arthur ANDREWS v. COLUMBIA CASUALTY INSURANCE COMPANY and Progressive Security Insurance Company.
    No. 2006 CA 0896.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Timothy K. Lamy, Barker, Boudreaux, Lamy & Foley, New Orleans, for Plaintiff-Appellant Arthur Andrews.
    Richard E. King, Peter A. Bourgeois, Stephen J. Moore, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, for Defendant-Appellee Columbia Casualty Co.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

|2Arthur Andrews appeals a judgment denying his motion for summary judgment, granting a motion for summary judgment in favor of Columbia Casualty Company (Columbia), and dismissing his claims against it on the grounds that the driver of a vehicle involved in an accident with him was excluded from coverage under the terms of the Columbia policy. Based on our de novo review of the evidence submitted by both parties in connection with the motions, we reverse the judgment, render, and remand this matter for consideration of the merits.

BACKGROUND

On November 16, 2003, Jacqueline Gas-pard was driving a car owned by South-land Automotive Leasing, L.L.C. (the Leasing Company) when she lost control of the car, crossed the center line, and collided head-on with a car being driven by Andrews. Gaspard died as a result of the accident, and Andrews was seriously injured.

Gaspard was using the car as a “loaner” while her personal auto was being repaired by Southland Dodge Chrysler, Inc. (South-land). The Leasing Company provided, loaner vehicles to clients of Southland, all vehicles used by Southland for that purpose were owned by the Leasing Company, and the rental fees for such vehicles were paid to the Leasing Company by Southland, not by the users of the vehicles. The Leasing Company had no employees. Southland made all the arrangements with its service clients when a loaner vehicle was needed, and its employees handled the execution of temporary substitute vehicle agreements for the loaner vehicles assigned to its service clients.

The Columbia policy insured both Southland and the Leasing Company under a policy issued to Southland Automotive Group, Inc. (the Group). The declarations page of the policy showed only the Group as the named insured and “Franchised Auto Dealer” as its business description. The Leasing Company and Southland were among nine additional business entities shown as named insureds on an endorsement that did |snot describe the nature of the business for any of those companies. The vehicle being used by Gaspard was a covered vehicle under the policy. The policy contained language stating that an insured included anyone who, with the named insured’s permission, was using a covered auto that the named insured owned, hired, or borrowed, except “[y]our customers, if your business is shown in the Declarations as an ‘auto’ dealership.”

Andrews filed suit against Columbia and Progressive Security Insurance Company, which insured Gaspard under a policy providing the minimum liability coverage required by Louisiana law. Andrews and Columbia filed cross motions for summary judgment on the coverage issue under Columbia’s policy. After a hearing on November 19, 2004, the trial court concluded that the insurance parties had intended to identify the Leasing Company as an “auto dealership” in the Columbia policy, but that genuine issues of material fact remained concerning whether Gaspard was a “customer” of the Leasing Company. Therefore, both motions were denied, with the court instructing the parties to refile their motions after additional discovery. This was done, and after a second hearing on August 19, 2005, the court concluded that Gaspard was a “customer” of the Leasing Company and for that reason, was excluded from coverage under the Columbia policy. Andrews appeals the judgment signed September 29, 2005, which denied his motion for summary judgment, granted Columbia’s motion, and dismissed all of his claims against Columbia.

Andrews contends that Gaspard was an omnibus insured under the policy and that coverage was not excluded by the referenced policy language, because the language describing who was an insured had to be considered with reference to the 'Leasing Company, which owned the car she was driving. Since the Leasing Company was not shown on the declarations page as an auto dealership, the exception did not apply to Gaspard. Moreover, although Gaspard was a customer of Southland, it also was not shown on the declarations page as an “auto dealership.” Andrews also argues that Gaspard was not a customer of the Leasing Company, since she did not pay for the |4use of the vehicle and did not communicate with the Leasing Company in any way when she signed the temporary substitute vehicle agreement presented to her by Southland. Nor was Gaspard a customer of the Group, which is the only entity described on the declarations page as an “auto dealership.” In the alternative, Andrews contends that because the Columbia policy is capable of more than one reasonable interpretation, it is ambiguous and should be interpreted against the insurer and in favor of coverage.

Columbia argues that the language’ in the exclusion is clear and should be applied to all of the named insureds under the policy, including Southland and the Leasing Company, both of which were named insureds on the endorsement. Columbia reasons that the wording on the first page of the declarations describing the one named insured as a “Franchised Auto Dealer” should be applied to all the other named insureds who are listed on the endorsement, since that endorsement was intended to amend and add to the statement on the policy declaration that identifies the named insured, just as if all had been listed on the declarations page, itself. Columbia claims that although the nine additional named insureds are all separate and distinct legal entities, they together make up the Group and together function as an auto dealership. Columbia maintains that the car was a covered auto under the policy, Southland hired it from the Leasing Company for use as a loaner by Southland’s customers, and Gaspard was a customer of both entities. Therefore, Columbia contends the court was correct in finding that the exception was applicable in this case and coverage was precluded, citing cases in which similar exceptions have been upheld. See Savana v. Certain Interested Underwriters at Lloyd’s London, 01-2450 (La.App. 1st Cir.7/2/02), 825 So.2d 1242; Gambino v. Lamulle, 97-2798 (La.App. 4th Cir.6/10/98), 715 So.2d 574; and Baker v. Kenney, 99-2950 (La.App. 4th Cir.5/3/00), 767 So.2d 711, writ denied, 00-2153 (La.10/13/00), 771 So.2d 650.

APPLICABLE LAW

Summary Judgment

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s | ^consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine' issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E); Bilbo for Basnaw v. Shelter Ins. Co., 96-1476 (La.App. 1st Cir.7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment must prove some provision or'exclusion applies to preclude coverage.. Gaylord Chem. Corp. v. ProPump, Inc., 98-2367 (La.App. 1st Cir.2/18/00), 753 So.2d 349, 352.

Insurance Policy Interpretation

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. LSA-C.C. art.2045; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763. If the language in an insurance contract is clear and explicit, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046 The court should not strain to find ambiguity where none exists. Strickland v. State Farm, Ins. Cos., 607 So.2d 769, 772 (La.App. 1st Cir.1992).

| (¡However, if there is ambiguity in an insurance policy, it must be resolved by construing the policy as a whole; one policy provision is not to be construed separately at the expense of disregarding other policy provisions. See LSA-C.C. art.2050; Louisiana Ins. Guar. Ass’n, 630 So.2d at 763. Ambiguity will also be resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. Breland v. Schilling, 550 So.2d 609, 610-11 (La.1989). If, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of coverage for the insured. See LSA-C.C. art.2056; see also Louisiana Ins. Guar. Ass’n, 630 So.2d at 764. Under this rule of “strict construction,” equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. For the rule of strict construction to apply, the policy must be susceptible to two or more interpretations, and the alternative interpretations must be reasonable. Bonin v. Westport Ins. Corp., 05-0886 (La.5/17/06), 930 So.2d 906, 911. The determination of whether a contract is clear or ambiguous is a question of law. McMath Const. Co., Inc. v. Dupuy, 03-1413 (La.App. 1st Cir.11/17/04), 897 So.2d 677, 681, writ denied, 04-3085 (La.2/18/05), 896 So.2d 40.

ANALYSIS

The first step in interpreting any insurance contract is to examine the policy language. If the language is clear and explicit, no further interpretation may be made in search of the parties’ intent. The subject policy states that “the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations.” The provision at issue in this case explains who is an insured, and states that in addition to the named insureds, an insured is anyone else “while using with your permission a covered ‘auto’ you own, hire or borrow except ... [y]our customers, if your business is shown in the Declarations as an ‘auto’ dealership.” There is no dispute that Gaspard was using a covered auto, that it was being used with the permission of a named insured, and that it was owned by one of the named insureds, the Leasing Company, and hired by another named insured, Southland. The only issue is whether Gaspard was a customer of a named |7insured whose business description was shown in the declarations as an auto dealership.

On the declarations page, only one company is shown as a named insured — the Group — and the only place the description of any business as an auto dealership is shown is also on that declarations page. Therefore, the simplest and most straightforward interpretation is that put forward by Andrews, namely, that since neither Southland nor the Leasing Company is shown as an auto dealership on the declarations page or even on the endorsement to the declarations page, the exception does not apply to customers of either of them. This argument is supported by the answers to interrogatories and requests for admission, in which Columbia admits that Southland and the Leasing Company, along with the other named insureds on the policy, are each separate and distinct legal entities, and. that the Leasing Company, not Southland, owned the vehicle that was provided to Gaspard as a loaner. The evidence also includes deposition testimony from Jeff Teuton, who described himself as the president and owner of all of these companies. He confirmed that the Group, Southland, and the Leasing Company are each separate and distinct legal entities; that each is separately incorporated; each has filed separate corporate documents with the secretary of state; and each files its own tax returns. In addition, the' record includes a “Vehicle Lease Agreement,” on which the vehicle provided to Gaspard is listed, and in which the Leasing Company agrees to lease that vehicle and nine others to Southland for a flat monthly fee of $200 per vehicle. Furthermore, although it is possible to infer from the names of most of the entities listed as named insureds on the endorse-ment that they are in some way involved in automobile or trailer leasing or sales, one of those companies is “Southland International of Louisiana, Inc.” and another is “Southland International Real Estate Holdings, LLC,” neither of which suggests an auto dealership.

|ROn the other hand, Columbia contends that the endorsement should be treated as an extension of the declarations page, since the only purpose of that endorsement is to show that there is more than one named insured on the policy. As an extension of the declarations page, all of the other terminology on that page — including the identification of the named insured’s business as a franchised auto dealer— should be applied to all of the companies shown as named insureds. Moreover, although the named insured companies are separate legal entities, Teuton is the owner/president of all of them, and the employees of these companies are considered employees of the Group and are paid by the Group. Teuton characterized the Leasing Company as a “slave corporation to the car company,” which he formed “to supplement the other corporations.” The Leasing Company had no employees of its own, no stationery or business forms using its name, and was operated out of the same location as Southland. In fact, the temporary substitute vehicle agreement signed by Gaspard does not have the name of the Leasing Company or Southland on it, and states that “the owner of the vehicle, (‘dealer’) grants the use of a temporary substitute vehicle (‘vehicle’) described in this agreement to the service customer (‘customer’).” Dean Click, the service manager at Southland who handled the transaction with Gaspard, stated that With reference to loaner vehicles, he was unsure which company owned them and which company was meant by the term “dealer” in that agreement. Teuton testified that he would assume that the term referred to Southland, even though the car was actually owned by the Leasing Company. He and Click both confirmed that the transaction by which the loaner vehicle was provided to Gaspard was handled entirely by Southland.

After reviewing the arguments of both parties and the evidence submitted in 13connection with their cross-motions for summary judgment, we conclude that the relevant provision of the insurance contract at issue is unclear. By stating that the exclusion applied only when the named insured’s business was shown in the declarations as an auto dealership, a reasonable argument can be made that since some of the named insureds were not so designated in the declarations, on the endorsement, or anywhere else in the policy, the exclusion is not applicable to those named insureds. However, it is equally reasonable to conclude that the insured parties intended to have all the provisions of the insurance contract, including this exclusion, apply to all of the named insureds, since the endorsement merely added named insureds to the contract, and the declarations page described the business of the named insured on that page as a “Franchised Auto Dealer.”

We have also examined the other cases interpreting this same exception, including those cited by Columbia that enforced it and precluded coverage, and did not find any involving the precise issue which is before this court in this case. In those cases, either the vehicle owner was clearly listed on the declarations page as an auto dealership, or the issue was simply not addressed. Only one case involved a situation somewhat analogous to the issue in the case before us. In National Union Fire Ins. v. Harrington, 02-0832 (La.App. 3rd Cir.4/17/03), 854 So.2d 880, 888, the parties opposing the insurer’s motion for summary judgment argued that because the declarations page of the commercial auto coverage part of the policy showed the nature of the business as “corporation,” rather than “auto dealership,” the exclusion did not apply. However, the court noted that the policy provided several different types of coverage and that on the “Common Policy Declarations” page, the named insured was shown as a “franchised dealership,” which, when read in conjunction with other Improvisions, was sufficient to identify the single named insured on the policy as an auto dealership and to apply the exclusion to its customer. In contrast, the Columbia policy has multiple named insureds, the declarations page is the only page using the phrase “auto dealers”, and this is the page on which only the Group is shown as the named insured and identified as a “Franchised Auto Dealer.”

Having found that the policy provision is ambiguous under the facts of this case, we look to the document as a whole to see if its other provisions can assist in interpreting the exception at issue. An initial observation concerning the policy is that the first page is entitled “Garage Coverage Declarations,” on which the Group is the only named insured, is identified as a “corporation,” and is shown conducting garage operations at multiple locations, including several locations in Houma, two locations in Harahan, and additional locations in Thibodaux, Gray, and Baton Rouge. This page is shown as “Page 1. of 2,” and the following page, which is not numbered, is the endorsement listing only the names of the other nine named insureds, including the Leasing Company and Southland, which has previously been discussed. This endorsement precedes “Page 2 of 2” of the “Garage Coverage Declarations.” The next twenty-one pages constitute the “Garage Coverage Form.” On the third page of that form, the liability coverage for “ ‘Garage Operations’ — Covered ‘Autos” ’ describes who is an insured, and it is at this point in the policy that the exclusion at issue in this case is stated. On the nineteenth page, “Garage operations” is defined as:

... the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations. “Garage operations” includes the ownership, maintenance or use of the “autos” indicated in SECTION I of this Coverage Form as covered “autos.” “Garage operations” also include all operations necessary or incidental to a garage business.

Following these twenty-one pages are various endorsements applicable to the “Garage Coverage Form.” Following all these endorsements is the “Auto Dealers General |¶ declarations” page, which we have previously discussed as the declarations page, on which the business description of the Group is shown as “Franchised Auto Dealer.” That page shows that it provides only “Commercial Garage” coverage under policy number FAD250281517, and that the specific limits of coverage are shown on each coverage declaration sheet. Immediately following this “Auto Dealers General Declarations” page, the two-page “Garage Coverage Declarations” are repeated. Additional endorsements and other policy conditions applicable to “All Coverage Forms” follow.

Having reviewed all of these sections of the policy, there is nothing, other than the “Auto Dealers General Declarations” page, to distinguish this policy as unique to auto dealerships, as compared to other commercial garage operators, such as automobile repair businesses. The endorsement to the policy showing the nine additional named insured entities is not placed immediately following the “Auto Dealers General Declarations” page. Rather, the endorsement is placed between pages one and two of the “Garage Coverage Declarations.” Therefore, since the “auto dealership” designation is not on the endorsement, and those nine entities are not listed with the Group on the declarations page, one could conclude from the placement of the endorsement that the additional named insureds may not be auto dealerships, but are garage operators.

Admittedly, this conclusion would seem unlikely with reference to some of the names of the named insureds, such as “Southland Dodge Chrysler, Inc.” and “Thibodaux Chrysler Center, Inc.,” which one would generally assume are probably auto dealerships. On the other hand, it seems equally incongruous to believe that a company called “Southland International Real Estate Holdings, LLC” is either a garage h ¡.operator or an auto dealership. Overall, we are unable to find anything in the policy as a whole to clarify the ambiguity in the provision at issue.

Nor are we helped in resolving this ambiguity by attempting to ascertain how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. The purchaser in this instance may be the Group or may be all of the named insureds. However, none of them have a real interest in limiting the liability insurance available to a person injured by one of their customers while driving a covered automobile, other than the cost of the premium for such coverage. It is the insurer who has the paramount interest in this limitation or coverage exclusion and who could have clarified it by stating that the endorsement was an extension of the declarations page and specifying which of the named insureds on that page were auto dealerships. Because the insurer is the party with the most significant interest in the exclusion and is the only party with the ability to clarify it, the insurer must bear the consequences of any ambiguous contractual provision seeking to narrow its obligation.

For these reasons, after a thorough review of the policy provision at issue and application of the general rules of construction regarding the interpretation of contracts, as applied to the unique facts of this case, we are left with two reasonable interpretations of the coverage issue. Accordingly, the ambiguous contractual provision must be construed against Columbia, which issued the policy, and in favor of coverage for Gaspard, who was insured by virtue of using a covered auto owned by a named insured, the Leasing Company, with the permission of a named insured, Southland.

CONCLUSION

.The judgment of September 29, 2005, which granted Columbia’s motion for summary judgment, denied Andrews’ motion for summary judgment, and dismissed Andrews’ claims against Columbia, is hereby reversed. We hereby grant Andrews’ motion for summary judgment, deny Columbia’s motion for summary judgment, and remand this matter for consideration of the merits. All costs of this appeal are assessed to Columbia.

REVERSED, RENDERED, AND REMANDED.

      . As will be discussed later, the policy actually contained two declarations pages. One was entitled “Garage Coverage Declarations” and the other was entitled "Auto Dealers General Declarations.” The page on which the Group was identified as a "Franchised Auto Dealer” was the "Auto Dealers General Declarations” page. In this opinion, -unless otherwise specified, the “Auto Dealers General Declarations” page is what is meant when "the declarations page” is discussed.

      . This exception was further qualified to apply only to customers who had other available liability insurance meeting the compulsory financial responsibility law limits of the state where the covered auto was principally garaged.

      . Neither party contends that Gaspard was a customer of the Group. Since the nature of its business is clearly shown on the declarations page as “Franchised Auto Dealer,” if she were its customer, the exclusion would obviously be applicable.

      . Teuton clarified that he was the sole owner of Southland and the Leasing Company, but believed he had only 50% ownership of the Group.

      .There was also a suggestion in arguments to this court that the property on which South-land was located was owned by the realty company listed on the endorsement, and thus it was a supporting entity for the "Franchised Auto Dealer” shown on the declarations page of the Columbia policy. However, there was no testimony or documentation to establish this fact. Some of these contentions imply that these companies formed a "single business enterprise,” which is an equitable doctrine applied to reflect partnership-type liability principles when corporations integrate their resources in operations to achieve a common business purpose, to such an extent that courts are free to disregard their separate corporate identities. See Commercial Union Ins. Co. v. CBC Temp. Staffing Services, Inc., 04-0854 (La.App. 1st Cir.l 1/3/04), 897 So.2d 647, 650-51, writs denied, 05-0221 and 05-0252 (La.4/8/05), 899 So.2d 12 and 13. However, this doctrine was not raised or addressed in the trial court, nor was the evidence sufficient to support the application of the “single business enterprise” doctrine in this case.

      . See Baker v. Kenney, 767 So.2d at 712.

      . In Rager v. Bourgeois, 06-0322 (La.App. 1st Cir. 12/28/06), 951 So.2d 330, Marshall v. Seago, 41,138 (La.App. 2nd Cir.6/28/06), 935 So.2d 752, and Falgout v. Jester, 04-0434 (La.App. 3rd Cir.9/29/04), 883 So.2d 515, the issue was whether certain persons were included in the term "customer.” In Goodwin v. Western Heritage Ins. Co., 38,836 (La.App. 2nd Cir.8/18/04), 880 So.2d 985, writ denied, 04-2320 (La. 11/24/04), 888 So.2d 231, the issue was whether a person whom the dealership's customer had permitted to drive the loaner vehicle was insured under the dealership's policy. In Savana v. Certain Interested Underwriters at Lloyd’s London, 825 So.2d at 1244, this court held that such a provision did not violate public policy. In Gambino v. Lamulle, 715 So.2d 574, the issue involved the limits of coverage for a dealership’s repair service customer who had no available underlying liability coverage. See also Bernard v. Chrysler Ins., 98-1846 (La.App. 4th Cir.3/24/99), 734 So.2d 48.

      . The policy number is FAD250281517. The document order of this policy is consistent throughout the record, which includes multiple certified copies of the Columbia policy.

      . Some of these endorsements are also applicable to other coverage forms. For instance, the "Deductible Liability Coverage” endorsement and the "Auto Medical Payments Coverage” endorsement state that they are also applicable to the “Business Auto Coverage Form,” the "Motor Carrier Coverage Form,” and the "Truckers Coverage Form.” Still others show that they are applicable only to the "Commercial General Liability Coverage Form” or other forms that apparently are not part of this policy.

      .Other types of coverage, including "Commercial General Liability” and "Commercial Auto” are left blank, indicating that insurance is not provided for these types of policies, but only for garage operations.

      . We note that the “Auto Dealers General Declarations” page also lists a renewal policy number of FAD226869844.

      . The “Auto Dealers General Declarations” page does provide that “[t]he declarations and the general declarations, if applicable, together with the common policy conditions, coverage form(s) and endorsements, if any, issued to form a part thereof, complete the above numbered policy.”


author: McDonald, j.

text:
    MB INDUSTRIES, LLC v. CNA INSURANCE COMPANY, Steven G. Durio; Steven G. Durio, P.C.; Durio, McGoffin, Stagg & Ackermann; John Haas Weinstein; John Haas Weinstein, APLC; ABC Insurance Company; DEF Insurance Company; GHI Insurance Company; JKL Insurance Company.
    Nos. 2006 CA 1084, 2007 CW 0422.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.
    Rehearing Denied May 7, 2007.
    Glen Scott Love, Stephen Dale Cronin, Robert L. Graves, Nadia De La Houssaye, Baton Rouge, Counsel for Plaintiff/Appellant MB Industries, LLC.

      James H. Gibson, David J. Ayo, Lafayette, Counsel for Defendants/Appellees Steven G. Durio; Steven G. Durio, P.C.; Durio, McGoffin, Stagg & Ackermann; and Continental Casualty Company.
    Gracella Simmons, Collin J. LeBlanc, Baton Rouge, Counsel for Defendants/Ap-pellees John Haas Weinstein; John Haas Weinstein, APLC; and Continental Casualty Company.
    Before: CARTER, C.J., WHIPPLE and MCDONALD, JJ.
   McDonald, j.

| aIn this case, the trial court sustained defendants’ exception raising the objection of improper venue and dismissed the suit. The plaintiff appeals that judgment.

The procedural background leading to the present suit was outlined in MB Industries, LLC (MB Industries) petition as follows: On February 14, 2000, MB Industries through its attorney, John Haas Weinstein, filed a petition for damages and a motion for preliminary injunction in the Fifteenth Judicial District Court against Mark H. Massey, Sam Lavergne and J. Bass, LLC, asserting breach of non-competition and trade secret agreements, misappropriation of trade secrets, unfair and deceptive trade practices and conversion of MB Industries’ property. In February of 2003, Weinstein withdrew as counsel for MB Industries. In July of 2003, Steven G. Durio enrolled as counsel for MB Industries and entered into a contingency fee agreement, after having previously been paid on an hourly basis. A bench trial was held in November of 2003, and thereafter the trial court ruled in favor of the defendants and against MB Industries, dismissing the suit.

On March 16, 2004, MB Industries filed a legal malpractice claim against Durio, Steven G. Durio, P.C. (a Louisiana professional corporation), Durio, McGoffin, Stagg and Ackerman, (DMSA, a Louisiana professional corporation), Weinstein, John Haas Weinstein APLC (A Louisiana Professional Law Corporation), CNA Insurance Company (CNA, named as a foreign liability insurer for Weinstein and Wein-stein APLC), and ABC Insurance Company (named as Durio’s liability insurer) DEF Insurance Company (named as Durio P.C.’s liability insurer) GHI Insurance Company (named as DMSA’s liability insurer) JKL insurance company and Moon Ventures, Inc.

|sIn response to the lawsuit, Durio, Du-rio, P.C., and DMSA filed a declinatory exception raising the objection of improper venue, and in the alternative, a motion to transfer the case under the doctrine of forum non conveniens. They asserted that the suit was based upon the prior suit “MB Industries, L.L.C. v. Mark H. Massey, et al,” filed in the Fifteenth Judicial District Court, in Acadia Parish and that they (Du-rio, Durio, P.C. and DMSA) were residents of Lafayette Parish, engaged in the practice of law in Lafayette Parish. They asserted that the proper parish to pursue a malpractice claim against an attorney is the parish of the attorney’s domicile, that the defendants did not have a place of business or residence or domicile in East Baton Rouge Parish, and thus venue was improper.

Thereafter, Weinstein and Weinstein, APLC also filed an exception raising the objection of improper venue, and in the alternative, forum non conveniens. Wein-stein asserted that he resided in and practiced law in the Parish of St. Landry and that the underlying suit arose out of conduct and/or omissions that occurred in Lafayette Parish or St. Landry Parish. Weinstein asked that the case be dismissed, or in the alternative, transferred to the Twenty-Seventh Judicial District Court in St. Landry Parish or the Fifteenth Judicial District Court in Lafayette Parish.

CNA filed a declinatory exception raising the objection of improper venue, and a peremptory exception raising the objection of no cause of action, asserting that CNA was not an insurance company, and further, even if CNA was an insurer, it had issued no policy in favor of Weinstein or Weinstein, APLC, thus MB Industries had no cause of action against CNA. Further, CNA urged that it was not a proper party defendant as it was not an insurer and did not issue a policy to Weinstein or Wein-stein, APLC. CNARasked to be dismissed from the suit with prejudice, and/or that the suit be transferred to a different venue.

On July 8, 2005, by supplemental and amending petition, MB Industries added as a defendant Continental Casualty Company (Continental), which provided professional liability insurance to Durio, Durio, P.C., Weinstein, Weinstein, A.P.L.C., and DMSA. Thereafter, Continental also filed a declinatory exception raising the objection of improper venue, and in the alternative, raised the doctrine of forum non conve-niens, asking that the case be dismissed, or in the alternative, asking that the case be transferred to the Fifteenth Judicial District Court in Lafayette Parish.

After a hearing, the trial court ruled in favor of the defendants, and against MB Industries, sustaining the exception of improper venue, and dismissing the suit. MB Industries appeals that judgment, and makes the following assignments of error:

1. The trial court erred in sustaining the exceptions of improper venue.

2. The trial court erred in not allowing MB Industries to amend its petition in an effort to cure any venue deficiency, or alternatively, in not taking cognizance of a pre-hearing amendment which cured any venue deficiency.

ASSIGNMENT OF ERROR NO. 1

THE VENUE ISSUE

Venue is a question of law, which is reviewed de novo by the appellate court. Price v. Roy O. Martin Lumber Co., 2004-0227 (La.App. 1 Cir. 4/27/05), 915 So.2d 816, 824, writ denied, 2005-1390 (La.1/27/06), 922 So.2d 548.

MB Industries asserts that venue is proper in East Baton Rouge Parish because it sued the attorneys and their malpractice carrier, Continental, a | ¿foreign insurer. Thus, MB Industries contends that venue is proper under La. C.C.P. art. 42(7), and further, that claims against a liability carrier are governed under La. R.S. 22:655, also known as the Direct Action Statute.

Louisiana Code of Civil Procedure article 42 provides:

The general rules of venue are that an action against:

(1) An individual who is domiciled in the state shall be brought in the parish of his domicile; or if he resides but is not domiciled in the state, in the parish of his residence.
(2) A domestic corporation, a domestic insurer, or a domestic limited liability company shall be brought in the parish where its registered office is located.
(8) A domestic partnership, or a domestic unincorporated association, shall be brought in the parish where its principal business establishment is located.
(4) A foreign corporation or foreign limited liability company licensed to do business in this state shall be brought in the parish where its primary business office is located as designated in its application to do business in the state, or, if no such designation is made, then in the parish where its primary place of business in the state is located.
(5) A foreign corporation or a foreign limited liability company not licensed to do business in the state, or a nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer, shall be brought in the parish of the plaintiffs domicile or in a parish where the process may be, and subsequently is, served on the defendant.
(6) A nonresident, other than a foreign corporation or a foreign or alien insurer, who has appointed an agent for the service of process in the manner provided by law, shall be brought in the parish of the designated post office address of an agent for the service of process.
(7) A foreign or alien insurer shall be brought in the parish of East Baton Rouge.
(Emphasis added.)

Louisiana Revised Statute 22:655 provides in pertinent part:

A. No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries |fisustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his or her survivors, mentioned in Civil Code Art. 2351.1, or heirs against the insurer.
B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only.

Defendants assert that Chambers v. LeBlanc, 598 So.2d 337 (La.1992) (per cu-riam) mandates that a legal malpractice suit be filed where the wrongful conduct occurred. In that case, the plaintiff sued his attorney and two insurance companies in the parish where the plaintiff was domiciled. The Chambers court found:

This legal malpractice action was brought in Livingston Parish, plaintiffs’ domicile, against an attorney, who is domiciled in Iberville Parish and practices in Ascension Parish, for failing to file a timely suit in East Baton Rouge Parish. The trial court overruled the exception of improper venue on the basis that plaintiffs sustained damages in Livingston Parish, making venue proper under La.Code Civ. Proc. art. 74.
When damage is caused to the plaintiff in the parish where the wrongful conduct occurred, then that parish is the parish of proper venue under Article 74, even if the plaintiff is in the parish of his domicile at the time of the wrongful conduct or if the damage progresses in the parish of the plaintiffs domicile. Belser v. St Paul Fire & Marine Insurance Co., 509 So.2d 12 (La.App. 1st Cir. 1987). Here, the wrongful conduct occurred in either Ascension Parish or East Baton Rouge Parish, but clearly not in Livingston Parish, which is therefore not a parish of proper venue under Article 74.

Id., 598 So.2d at 337-338.

The Chambers court found that venue for a legal malpractice suit was not proper in the plaintiffs domicile, but rather in the parish where the ^wrongful conduct occurred. The Chambers case and the other cases relied upon by defendants did not address a legal malpractice suit filed in East Baton Rouge Parish that included a foreign insurer as a defendant. This, Chambers is distinguishable from the instant case.

After a thorough review, we find that East Baton Rouge Parish is a proper venue for this suit, under the language of both La. C.C.P. art. 42(7) and La. R.S. 22:655. Thus, we reverse the trial court judgment that sustained the declinatory exception raising the objection of improper venue and dismissed the suit. We remand the case to the trial court for further proceedings.

We note that on March 13, 2007,, defendants Durio, Durio, P.C., DMSA, and Continental filed a writ application seeking review of the trial court judgment dated February 12, 2007, which granted the plaintiffs motion to supplement the appellate record. This court referred the writ application to this panel.

We find no abuse of discretion in the trial court’s granting of the motion to supplement the record. • The .writ is hereby denied, and the judgment of the trial court with respect to supplementation of the record shall stand.

CONCLUSION

For the foregoing reasons, the trial court judgment sustaining the declinatory exception raising the objection of improper venue and ^dismissing MB industries’ suit is reversed, and the case is remanded to the Nineteenth Judicial District Court for further proceedings. Costs are assessed against the defendants.

JUDGMENT REVERSED; CASE REMANDED; WRIT DENIED.

      . We make special note that because the trial court did not reach the alternative motion for transfer under the doctrine of forum non con-veniens and the defendants have not answered this appeal, we lack authority to amend, modify, or revise the trial court’s judgment regarding that issue. See La.C.C.P. art. 2133; Pierre v. Pierre, 2004-1496 (La.App. 1 Cir. 12/30/04), 898 So.2d 419, 424, writ denied, 2005-0253 (La.2/16/05), 896 So.2d 11. We cannot change a judgment in favor of appellees who have neither appealed nor answered their adversary’s appeal. Arrow Const. Co., .Inc. v. American Emp. Ins. Co., 273 So.2d 582, 586 (La.App. 1. Cir. 1973).


text:
    Paula HOOPER v. LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY.
    No. 2005 CA 2481.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Maria A. Finley, Baton Rouge, for Plaintiff-Appellant Paula Hooper.
    Philip J. Shaheen, Baton Rouge, for Defendant-Appellee Louisiana Department of Agriculture and Forestry.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

I ¡An employee appeals from a judgment of the Office of Workers’ Compensation Administration (OWC), which granted her employer’s motion for involuntary dismissal and dismissed her claim for workers’ compensation benefits. For the following reasons, we affirm.

Factual Background and Procedural History

On January 6, 2003, Paula Hooper (Hooper) filed a disputed claim for workers’ compensation benefits, alleging that she had suffered a work-related injury to her back on November 4, 2002, during the course and scope of her employment with the Louisiana Department of Agriculture and Forestry (the Department), for which she was denied indemnity and medical benefits. In addition to the alleged twisting injury to her back while carrying a tray of seeds, Hooper averred that she was entitled to workers’ compensation benefits due to severe and disabling emotional distress endured in connection with an ongoing criminal investigation at her agency. The Department’s first report of injury dated November 6, 2002, simply disclosed that Hooper was suffering from health problems caused by stress from her position of seed analyst. Hooper testified that her November 6, 2002 complaint did not concern the stress of her job, but rather concerned an injury to her back that resulted while lifting seed trays and turning to the left to put the trays on a cart.

In connection with the trial of this matter, Hooper requested that a subpoena and a subpoena duces tecum be issued to the following people who were then employed with the Department: Commissioner Bob Odom, Melanie Barnett, Terri Boykin (Summers), Sherry Wethy, Eric Gates, and Lola Turner. These subpoenas were delivered to Skip Rhorer, the official custodian of records for the Department. The Department and these individuals, through the Department’s counsel of record and the Department’s in-house counsel, sought to have these subpoenas quashed based on Hooper’s noncompliance with LSA-R.S. 13:3667.3, LSA-R.S. 23:1310.7(0, and LSA-jC.C.P.s arts. 1351 through 1354. The Department also urged that Hooper’s request for subpoenas duces tecum was overly broad. In opposing the motion to quash, Hooper asserted that the requirements of LAC 40:1.5909, which governs the issuance of subpoenas in workers’ compensation cases, were satisfied by service on Mr. Rhorer. After a hearing, the motions to quash were granted.

Following the trial on the merits, the workers’ compensation judge (WCJ) found that Hooper’s testimony was “absolutely not credible,” given the conflicting evidence. Finding that Hooper had a significant congenital condition that had become symptomatic prior to the alleged accident, the WCJ found that Hooper had failed to prove the occurrence of a work-related accident. A judgment was signed, granting the Department’s motion for involuntary dismissal and dismissing Hooper’s claims. Hooper appealed, contending that the WCJ erred in granting the Department’s motion to quash, in finding that Hooper was not a credible witness, and in finding that Hooper had not satisfied her burden of proving that a work-related accident had occurred on November 4, 2002.

Motion to Quash

Concerning the issuance and service of subpoenas, LAC 40:1.5909 of the Office of Workers’ Compensation Administration’s hearing rules provides:

A. Subpoenas issued in connection with any workers’ compensation matter shall be served by the party requesting issuance of the subpoena, and may be served by certified mail return receipt requested or any other manner provided in § 5511. Proof of service shall be the responsibility of the party requesting the subpoena. Once issued and served, a subpoena may be canceled by the requesting party only after written notice to the opposing side. It shall be the responsibility of the requesting party to provide written notification of cancellation to all opposing parties as well as the person under subpoena. [Footnote added.]
|4B. In order to be enforceable, subpoenas for hearing shall be served seven days prior to the scheduled hearing date; subpoenas to compel attendance of medical experts shall be served 10 days prior to hearing. Subpoenas for hearing may be issued after expiration of these time limits only by.leave of court for good cause shown or upon written consent of all parties.

Because she sent the subpoenas, which were directed to employees of the Department, by certified mail to the Department, Hooper contended that the requirements of LAC 40:1.5909 were satisfied.

Although LSA-R.S. 23:1810.7(0, regarding the ■ issuance of subpoenas in workers’ compensation proceedings, does not state that a party must deposit funds with the clerk of court to pay for all fees and expenses to which the witness is entitled by law, LSA-C.C.P. art. 1353, which is referred to in LSA-R.S. 23:1310.7(C), imposes such a requirement. Thus, no subpoena should have been issued until Hooper had deposited with the clerk of the OWC court a sum of money sufficient to pay all fees and expenses to which the witness was entitled by law. See LSA-C.C.P. art. 1353.

Hooper argued that all subpoenaed witnesses were employees of the Department and were considered part of the Department, thereby precluding Hooper’s counsel from freely speaking with any of them. Accordingly, Hooper argued that LSA-C.C.P. art. 1353 was inapplicable, since the subpoenas were issued to parties to the litigation. However, the fact that the Rules of Professional Conduct prohibit a lawyer from freely conversing with an employee of the Department does not make such an employee a party to the lawsuit by reason that his or her employer was named as a Rparty. See Rules of Professional Conduct, Rule 4.2. Because each of these witnesses was a non-party, the initial subpoena was jurisdictional. A subpoena, like a summons, is a jurisdiction-getting device. The summons secures jurisdiction over a defendant in an action, subjecting the defendant to the jurisdiction of the court so that any judgment that may be rendered in the action will bind the defendant. The mission of the subpoena is to secure jurisdiction over a witness, who is usually not a party to the action, so as to obtain from the witness testimony or documents (or other things) needed by one of the parties. The incentive of the subpoenaed witness to obey the subpoena is to avoid punishment for contempt, the sanction that backs a subpoena. Seaward v. City of Hammond, 01-0770 (La.App. 1st Cir.6/21/02), 822 So.2d 38, 40.

Thus, because Hooper had to request the issuance of subpoenas for the attendance of the Department employees as witnesses at the trial, she was required to meet the requirements of LSA-C.C.P. art. 1353. In the absence of proof that such requirements were satisfied, the subpoenas in question should not have been issued. Thus, we are unable to find that the WCJ erred or abused his discretion in quashing these subpoenas on account of Hooper’s failure to deposit with the clerk of the OWC court a sum of money sufficient to pay all fees and expenses to which the witnesses were entitled by law.

Furthermore, service was not made by certified mail, return receipt requested, as contemplated by LSA-R.S. 23:1310.7(0) and LAC 40:1.5909. Service by certified mail, | ¿return receipt requested, on Skip Rhorer, an agent for the Department, did not constitute service on the individuals who were named in the subpoenas. Mr. Rhorer was employed by the Department as assistant commissioner of management and finance. He received two envelopes addressed to him at the Department’s mailing address, which contained the subpoenas and subpoenas duces tecum addressed to Melanie Barnett, Eric Gates, Terri Boykin (Summers), Sherry Wethy, and Lola Turner. Mr. Rhorer did not have authority to accept service of the subpoenas for any of the named individuals. Thus, his signature on the return receipt was not tantamount to service on the individuals to whom each subpoena was addressed. This means of service was insufficient to show that service of the subpoena was made on the persons who were to be witnesses, so as to subject those persons to the jurisdiction of the court. Therefore, the WCJ did not err in finding that service was not proper on the individuals who were subpoenaed.

Credibility

Hooper urged that the WCJ erred in finding that she was not a credible witness. The credibility of witnesses is best determined by the trial court judge. See Horstmann v. Farber, 05-2213 (La. App. 1st Cir.9/27/06), 944 So.2d 628, 632. The “manifest error-clearly wrong” standard of review demands great deference to the trier of fact’s findings regarding the credibility of witnesses, because only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Lirette v. State Farm Ins., 563 So.2d 850, 852 (La.1990). In this case, the WCJ was able to observe Hooper’s demeanor when she testified, and the WCJ obviously did not believe Hooper’s account of the alleged accident. Furthermore, other evidence in the record casts doubt on Hooper’s testimony on this issue, particularly the medical records of various doctors who treated Hooper prior to and after November 4, 2002. We are unable to find that the WCJ’s Revaluation of Hooper’s credibility was unreasonable. Accordingly, we must defer to the WCJ’s determination in this respect.

Occurrence of an Accident

Hooper argued that the WCJ erred in finding that she had not satisfied her burden of proving that a work-related accident had occurred on November 4, 2002. The claimant in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Bruno v. Harberb Int'l Inc., 593 So.2d 357, 361 (La. 1992). Louisiana Revised Statute 23:1021(1) defines an accident as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” This provision excludes from the definition of “accident” conditions that are caused by a progressive deterioration. Hudson v. Housing Auth. of New Orleans, 04-0744 (La.App. 4th Cir.10/27/04), 909 So.2d 607, 610. However, the mere presence of a gradual or deteriorating condition does not preclude a claimant from recovering workers’ compensation benefits. Jackson v. Savant Ins. Co., 96-1424 (La.App. 1st Cir.5/9/97), 694 So.2d 1178, 1183. An otherwise healthy employee with a pre-exist-ing condition is entitled to benefits if he can prove that his work contributed to, aggravated, or accelerated his injury. Dyson v. State Employees Group Benefits Program, 610 So.2d 953, 955 (La.App. 1st Cir.1992).

As previously noted, the record contains evidence that conflicts with the version of events given by Hooper. The medical evidence provides reasonable support for the WCJ’s determination that Hooper had begun to experience back problems in early April 2002. Her back and leg pain escalated, resulting in a myelogram and, on October 29, 2002, a post-myelogram CT scan. Based on the results of these tests, Hooper’s treating neurosurgeon opined in a report dated October 31, 2002, that Hooper had symptomatic spondylolisthesis that would require surgery. A decision concerning her need for surgery was to be made after consultation with his colleagues on Monday, November 4, 2002. Following this conference, the neurosurgeon recommended a discectomy with ^fusion, which is the surgery that was ultimately performed on Hooper by her orthopedic surgeon on February 10, 2004. Furthermore, the medical records of her treating physicians pertaining to visits that occurred shortly after November 4, 2002, do not mention the occurrence of an accident on that date, and her physicians denied being informed by Hooper that she had suffered a work-related injury on November 4, 2002. In most instances, her condition was indicated as being related to something else.

Whether there was an accident is a finding of fact. See Bruno, 593 So.2d at 361. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1164. 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. Seal, 704 So.2d at 1164. Based on the record in this case, we find a reasonable factual basis for the WCJ’s conclusions. Moreover, we conclude that the WCJ did not manifestly err in finding that Hooper had a significant congenital condition that had become symptomatic prior to November 4, 2002, and in finding that Hooper failed to show by a preponderance of the evidence that a work-related accident occurred on that date.

Decree

For the foregoing reasons, we affirm the judgment of the Office of Workers’ Compensation Administration. Costs of this appeal are assessed to Paula Hooper.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . Honorable Jason G. Ourso of District 5 presided in this matter.

      . This motion was incorrectly referred to as a motion for directed verdict.

      . Provided that the claimant has completed the presentation of his case, an involuntary dismissal may be granted in a workers’ compensation case. See LAC 40:1.6211; LSA-C.C.P. art. 1672(B); Taylor v. Tommie’s Gaming, 04-2254 (La.5/24/05), 902 So.2d 380, 383.

      . Louisiana Administrative Code 40:1.5511 states that service of process in a workers’ compensation claim shall be by certified mail, at mediation by the. mediator, or any other manner provided by law. LAC 40:1.5911 provides for exceptions for subpoenas directed to an official of the Social Security Administration, an independent medical examiner, and the director or any other employees of the Office of Workers’ Compensation Administration.

      .In her brief, Hooper did not directly challenge the WCJ's ruling based on LSA-R.S. 13:3667.3, which governs the issuance of a subpoena seeking to compel the attendance of a statewide elected official as a witness in a suit that arises out of, or in connection with, the person’s exercise of his duties as an official of the state. Therefore, we pretermit discussion of the propriety of the WCJ’s granting of the motion to quash as it relates to the subpoena demanding Commissioner Odom’s appearance.

      . We recognize that the term “clerk of court” found in LSA-C.C.P. art. 1353 is not normally used in workers’ compensation proceedings, but obviously the Office of Workers’ Compensation Administration has comparable personnel to perform the function of a. clerk of court. Accordingly, for the remainder of this opinion, we will refer to such personnel as the "clerk of the OWC court.”

      . Rule 4.2 prohibits a lawyer, in representing a client, from communicating about the subject of the representation with:
      (a) a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
      (b) a person the lawyer knows is presently a director, officer, employee, member, shareholder or other constituent of a represented organization and

        (1) who supervises, directs or regularly consults with the organization's lawyer concerning the matter;
      (2) who has the authority to obligate the organization with respect to the matter; or
      (3)whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

      . See Seaward, 822 So.2d at 40.

      . The gradual deterioration of her congenital condition to the point where she could no longer perform her work-related duties as of November 4, 2002, does not warrant a contrary result.

      . In light of this conclusion, we find it unnecessary to rule on the Department’s motion to strike that was filed with this court. Accordingly, said motion is dismissed.