text:
    John Henry BOOKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2725.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    John H. Booker, South Bay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the order denying Appellant’s current Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. On September 5, 2007, this court issued an order directing Appellant to show cause why he should not be prohibited from filing further pro se appeals, pleadings, motions, or petitions in this court pertaining to his convictions and sentences in Orange County Circuit Court Case No. 1974-CF-1404/C. See State v. Spencer, 751 So.2d 47 (Fla.1999). Appellant filed a response, which has been carefully reviewed by this court.

In 1974, Appellant pleaded guilty to first and second-degree murder and was sentenced to concurrent terms of life imprisonment. After his convictions and sentences were affirmed on appeal, Booker v. State, 331 So.2d 392 (Fla. 4th DCA 1976), Appellant filed numerous postconviction motions. In fact, the trial court noted below that Appellant had filed twelve prior postconviction motions, all of which were denied. The instant motion suffered the same fate based upon the trial court’s finding that the motion was untimely because the judgment and sentence had become final over thirty years prior. After giving Appellant notice and an opportunity to be heard, the trial court barred Appellant from filing any further pro se pleadings.

. This court, too, has been burdened by Appellant’s repeated attacks on the judgment in his 1974 case. This is Appellant’s eighth postconviction appeal. Because he has failed to show that his numerous post-conviction motions and appeals do not constitute an abuse of the postconviction procedure, Appellant is hereby prohibited from filing any further appeals or petitions pertaining to his judgment and sentence in Orange County Circuit Court Case No. 1974-CF-1404/C, unless reviewed and signed by an attorney licensed to practice in the State of Florida. The Clerk of this court shall not accept any further pro se pleadings or appeals from Appellant that relate to this case. See Washington v. State, 959 So.2d 1238 (Fla. 5th DCA 2007); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

AFFIRMED.

PALMER, C.J., SAWAYA and TORPY, JJ., concur.


source: Caselaw Access Project

author: LAWSON, J.

license: Public Domain

text:
    David J. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-230.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

David J. Smith appeals from his conviction and sentence for failure to register as a sex offender. Smith argues that the trial court erred by denying his request to instruct the jury that the State was required to prove that he intentionally, as opposed to knowingly, failed to register. We affirm.

Smith was charged by information with failure of a sexual offender to register his change of address with the Florida Department of Highway Safety and Motor Vehicles, (“DHSMV”), in violation of sections 943.0435(4) and (9), Florida Statutes (2006). The statute gives sex offenders forty-eight hours after any permanent or temporary change of residence to report to a driver’s license office to register then-new address and obtain a driver’s license or identification card. Although the statute does not expressly contain a scienter requirement, the Florida Supreme Court has construed the statute as requiring knowledge of a duty to register. See State v. Giorgetti, 868 So.2d 512 (Fla.2004). The court in Giorgetti reached this result for two reasons.

First, the court relied upon a rule of statutory construction which presumes that the Legislature intended to include a guilty knowledge element in all criminal statutes, absent an express statement to the contrary. Id. at 515-16. This rule of construction has developed from the general common law rule that “guilty knowledge or mens rea was a necessary element in the proof of every crime.” Id. at 515.

Second, the court in Giorgetti based its holding on the rule that statutes should be construed in a manner that avoids “constitutional quandaries.” Relying on Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), the court found that a statute which required severe criminal sanctions for failing to register would violate the due process clause unless it contained, at a minimum, a requirement that the State prove “ ‘actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply ... before a conviction ... can stand.’ ” Giorgetti, 868 So.2d at 520 (quoting Lambert, 355 U.S. at 229, 78 S.Ct. 240).

At trial, the State established that Smith was released from jail on January 5, 2006, and registered the address of his sister’s home on Balboa Street, in Orange County, with the Orange County Sheriffs Office, as his permanent address. Witnesses testified, however, that Smith did not register any address with DHSMV or obtain a new identification card between January 5, 2006 and May 1, 2006. The State also called Smith’s sister as a witness. She testified that Smith did not live with her at her Balboa Street home at any time between January 5, 2006 and May 1, 2006.

After the State rested its case, Smith took the witness stand in his own defense. He testified that he did live with his sister at her Balboa Street home beginning immediately after his release from jail in January 2006. Smith conceded that he knew about the registration requirement. According to Smith, he went to a driver’s license office to register the Balboa Street address at some point after his release from jail, but was thwarted from registering when a DHSMV employee informed him that he needed to. present a copy of his birth certificate before he could get a new Florida identification card. Interestingly, Smith did not testify as to exactly when these events took place, and certainly never testified that he reported to the driver’s license office within forty-eight hours after his release from jail. Smith claimed that he retrieved his birth certificate from Georgia as soon as he could, and then returned to register immediately after securing his birth certificate. At one point, defense counsel asked Smith for “the date that you reported to the Florida Department of Motor Vehicles to obtain that Florida ID card?” Smith responded that it “may have been in April of 2006.” Although this testimony may relate to Smith’s purported second trip to the driver’s license office, with birth certificate in hand, the testimony is unclear as to which of the two alleged trips to the driver’s license office Smith claimed to have made in April.

During the charge conference, the State submitted proposed instructions informing the jury that the State had to prove beyond a reasonable doubt that Smith “knowingly failed to report in person to a driver’s license office within 48 hours after any change in his permanent or temporary residence.” The instructions further explained that “knowingly” means “with actual knowledge of the duty to register or proof of the probability of such knowledge.” The defense requested an additional special instruction, reading as follows:

The State must prove beyond a reasonable doubt that Mr. Smith intentionally violated the statute by Failing to Register a change in address within 48 hours of any change of address with the Department of Highway Safety and Motor Vehicles.

Defense counsel explained that they were attempting to convince the jury that Smith timely went to DHSMV to register, but was prevented from completing the registration at that time. He argued that the proposed special instruction was needed to “limit or alleviate any confusion that the jury might have” as to the validity of Smith’s story as a defense to the crime charged. The trial judge found that the State’s proposed instructions were not confusing, and did not give the requested special instruction.

We agree with Smith’s argument that allowing the State to convict a defendant for failure to register a change of address would present a due process concern in a ease where the State had itself prevented the defendant from timely registering his or her change of address. The problem in this case, however, was that Smith’s testimony — even if believed by the jury — did not support the argument that Smith timely reported to DHSMV. Thus, we find no error with the trial judge’s decision to reject the special instruction offered in this case.

Additionally, the special instruction proposed by Smith misstates the law. In our view, the court in Giorgetti interpreted section 943.0435(4), Florida Statutes, as containing a general intent element. Giorgetti, 868 So.2d at 519-20; see also, 21 Am.Jur.2d Criminal Law § 128 (2007) (“ ‘General intent’ is the term used to define the requisite mens rea for a crime that has no stated mens rea.”). And, “[wjhere a particular crime requires only a showing of general intent, the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts.” 21 Am.Jur.2d Criminal Law § 128 (2007). The instruction given in this case specifically tracked the language required by Giorgetti.

By contrast, we view the proposed instruction as requiring the State to prove specific intent, or that Smith subjectively intended to violate the statute. See 21 Am.Jur.2d Criminal Law § 128 (2007) (“ ‘Specific intent’ involves a subjective state of mind.”). Clearly, adding a specific intent element to section 943.0435(4), Florida Statutes, would defeat the purpose of the statute. Under that standard, for example, a defendant could avoid criminal liability with testimony that he meant to register, but simply forgot. For this reason, the special instruction actually proffered below would not have been appropriate, even if Smith’s testimony had supported his argued defense. See 21 Am.Jur.2d Criminal Law § 129 (“A court will not imply a mental requirement in a crime when the statutory language cuts against such a result and the policy behind the statute would be defeated.”).

AFFIRMED.

PALMER, C.J., and PLEUS, J., concur.


author: ALTENBERND, Judge.

text:
    Paul D. PRESSLY, Appellant, v. Ronald TADLOCK, Warden, Polk Correctional Institution; James McDonough, Secretary, Florida Department of Corrections; and State of Florida, Appellees.
    No. 2D07-1857.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 2007.
    Paul D. Pressly, pro se.
    Kathleen Von Hoene, General Counsel, and Sean T. Garner, Assistant General Counsel, Tallahassee, for Appellee James McDonough, Secretary, Florida Department of Corrections.
    No appearance for Appellees Ronald Tadlock or State of Florida.
   ALTENBERND, Judge.

Paul D. Pressly appeals the circuit court’s order denying his petition for writ of habeas corpus. He is understandably confused by the fact that the Department of Corrections (DOC) has calculated his release date on a 5-year sentence of imprisonment for a date that is more than 5 years from the commencement of the sentence. He is serving the second portion of a true split sentence following a violation of probation. The circuit court in the circuit where he is incarcerated properly denied his petition because the DOC calculation does not violate current law. If there is any error in his sentence that can be corrected at this time, that matter must be addressed in the circuit court that entered the sentence.

Mr. Pressly committed a robbery in Pi-nellas County. As a result, in July 2000, he received a true split sentence of 10 years’ imprisonment, suspended after 5 years’ imprisonment with the remaining 5 years to be served on probation. He was released from prison on October 1, 2004, after having served 1529 days in prison and receiving 43 days of jail credit and 253 days of incentive gain time.

He violated his probation and was resen-tenced on April 8, 2005. The trial court imposed the remaining 5-year term of imprisonment, granted 82 days of jail credit, and checked the box authorizing the DOC to allow credit for all prison time previously served on this count.

Mr. Pressly believes that he served 1529 days on this sentence prior to resentencing and that he has now served all the time required by the resentencing on April 8, 2005. The DOC takes the position that none of the 1529 days served prior to his release in October 2004 applies to this net sentence of 5 years’ imprisonment. Moreover, in light of section 944.28(1), Florida Statutes (2000), it concludes that he has forfeited 253 days of gain time. As a result of this forfeiture, he is actually expected to serve somewhat more than 5 years to complete the sentence imposed on April 8, 2005. Although this sentence will take longer than 5 years to serve, it will not exceed the 10-year true split sentence originally imposed.

This case was initiated as a petition for writ of habeas corpus in the circuit court of the county in which Mr. Pressly is incarcerated. Thus, the circuit court did not have the records from the criminal proceedings or a transcript of the sentencing hearing. The DOC responded to the petition by filing copies of the two sentences that it had received in the commitment documents transmitted with Mr. Pressly when he was transferred to the DOC.

Under the limited scope of review in such a case, the circuit court properly determined that the sentencing court had jurisdiction over the case and that the sentence, as interpreted by the DOC, was not void or illegal. See Alachua Reg’l Juvenile Det. Ctr. v. T.O., 684 So.2d 814, 816 (Fla.1996) (stating review limited to “whether the court that entered the order was without jurisdiction to do so or whether the order is void or illegal”). It further relied upon this court’s decision in Roberts v. State, 702 So.2d 239 (Fla. 2d DCA 1997), which stated in dicta that the DOC was not required to give prior prison credit on a true split sentence that imposed the net time remaining on the suspended portion rather than the total time originally imposed. Id. at 239.

After our decision in Roberts, this court strongly encouraged trial judges not to impose the net remaining time on the suspended portion of a true split sentence because it creates confusion under current law. “If a trial court intends to impose the maximum period of imprisonment for a violation of the probationary portion of a true split sentence, it should impose the full original sentence of incarceration with credit for time served.” Crews v. State, 779 So.2d 492, 493 (Fla. 2d DCA 2000). The standard sentencing forms do not contain language that allows for an easy resolution of prison credit or gain time when a trial court imposes only the net time remaining on the suspended portion of a true split sentence. We emphasize again that such net sentencing methods are not advisable.

Nevertheless, the circuit court in Polk County did not err in finding the sentence as interpreted by the DOC was legal. We have no basis to grant relief on appeal. If Mr. Pressly maintains that the trial court in Pinellas County orally imposed a 5-year sentence that was not the remainder of Mr. Pressly’s true split sentence, we do not rule out the possibility that Mr. Pressly could obtain relief from that court pursuant to a motion for correction of an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). See Williams v. State, 957 So.2d 600, 603 (Fla.2007). We merely hold that the circuit court in Polk County had no legal requirement to compel the DOC to release Mr. Pressly at this time.

Affirmed.

NORTHCUTT, C.J., and WHATLEY, J., concur.

      . The trial court sentenced Mr. Pressly using a form based on the 1996 version of Florida Rule of Criminal Procedure Form 3.986(d). The problem addressed by this opinion exists even with the more elaborate language contained in the 2005 version.


author: PER CURIAM.

text:
    FOXFIRE OWNERS ASSOCIATION, INC., Appellant, v. FOXFIRE PROPERTIES, LLC, and Sugar Loaf Environmental Holdings, LLC, Appellees.
    No. 2D07-3137.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 2007.

      Donald E. Hemke of Carlton Fields, P.A., Tampa, for Appellant.
    Steven J. Chase and Hunter G. Norton of Abel Band, Chartered, Sarasota, for Appellees.
   PER CURIAM.

Foxfire Owners Association, Inc. (the Association) appeals two nonfinal orders the trial court entered in the underlying declaratory action. The dispute centers on certain covenants in the Association’s favor that run with neighboring land. Foxfire Properties, LLC owns part of the property subject to the covenants and Sugar Loaf Environmental Holdings, LLC leases the remaining portion. Foxfire Properties and Sugar Loaf filed the underlying declaratory action to determine whether these covenants enjoy continued validity in the face of changed circumstances. The trial court referred all discovery motions and all motions directed to the pleadings to a general magistrate who held a hearing and filed a recommended order. In the first nonfinal order we review, the trial court struck the Association’s objections to the magistrate’s recommended order as untimely filed; in the second, the trial court adopted the magistrate’s recommended order without hearing the Association’s objections.

The orders the Association brings to us are not reviewable as a nonfi-nal appeal. Fla. R.App. P. 9.130(a)(3). Nevertheless, we elect to treat this case as a petition for certiorari. See Fonte v. Alvarez, 491 So.2d 1268, 1269 (Fla. 2d DCA 1986) (citing State v. Johnson, 306 So.2d 102 (Fla.1974), for the proposition that dismissal should be avoided and the cause heard on the merits where an improper remedy has been sought as long as there is a proper remedy or review procedure available and provided the relief was timely sought).

Foxfire Properties and Sugar Loaf concede that relief is appropriate; thus, we grant the petition and strike the trial court’s order adopting the magistrate’s recommended order. We remand with instructions that the trial court hold a hearing on the Association’s timely filed objections. See Fla. R. Civ. P. 1.490(h) (“If [timely] exceptions are filed, they shall be heard on reasonable notice by either party.”). After holding a hearing on the Association’s exceptions, the trial court may then reconsider whether to adopt the magistrate’s recommendations.

Petition for certiorari granted, order stricken, and cause remanded with instructions.

CASANUEVA, SILBERMAN, and VILLANTI, JJ., Concur.


author: LaROSE, Judge.

text:
    Joseph George ORONA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5866.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 2007.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Joseph George Orona was adjudicated guilty and sentenced to a ten-year prison term as a habitual offender for battery on a law enforcement officer and resisting an officer with violence. He appeals the imposition of a $1050 fine and five percent surcharge. Neither section 775.084, Florida Statutes (2004), nor any companion statute authorizes the fine and surcharge. Therefore, we reverse.

The final judgment and sentence imposes the fine and surcharge purportedly under the authority of section 775.083. That section grants the trial court discretion to impose fines in addition to punishments authorized by section 775.082. Baker v. State, 941 So.2d 419, 420 (Fla. 2d DCA 2006). However, no comparable statutory authority allows for the trial court to impose fines in addition to section 775.084 habitual felony offender punishments. Webster v. State, 705 So.2d 970, 971 (Fla. 2d DCA 1998). Thus, the fine and surcharge imposed on Mr. Orona are illegal. See Willits v. State, 884 So.2d 73, 74 (Fla. 2d DCA 2004). We reverse and remand for the trial court to strike the $1050 fine and five percent surcharge.

Reversed and remanded.

ALTENBERND and SILBERMAN, JJ., Concur.


author: GREEN, OLIVER, L., Senior Judge.

text:
    Quincy WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3566.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 2007.

      James Marion Moorman, Public Defender, and Ray Shaw, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   GREEN, OLIVER, L., Senior Judge.

Quincy Willis appeals his convictions after jury trial for robbery with a firearm and carjacking with a firearm, claiming that the convictions violate double jeopardy because robbery is a lesser-included offense of carjacking and they both arose from the same criminal episode. We affirm because the count of the information charging robbery listed property other than the motor vehicle — i.e., the victim’s cell phone, watch, wallet, and money — and the evidence showed that Willis robbed the victim of his personal effects as well as his motor vehicle. See Cruller v. State, 808 So.2d 201, 204 (Fla.2002) (“[WJhen a defendant forcefully takes several items of property, one of which is a motor vehicle, it is clear that the Legislature intended to punish the act of taking the car separately from any other property taken during the robbery.”); Brown v. State, 806 So.2d 576, 577 (Fla. 2d DCA 2002) (relying on Cruller in rejecting double jeopardy argument and affirming dual convictions for carjacking and robbery where information charged that defendant “robbed the victims by taking their money and car keys”).

Affirmed.

ALTENBERND and VILLANTI, JJ„ Concur.


author: THIBODEAUX, Chief Judge. THIBODEAUX, Chief Judge.

text:
    Theodore VENISSAT, et al. v. ST. PAUL FIRE & MARINE INS. CO., et al.
    No. 2006-987.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 15, 2007.
    Opinion Granting Rehearing Nov. 7, 2007.

      Thomas John Gayle, Ranier, Gayle & Elliot, Lake Charles, LA, for Plaintiffs/Appellants — Theodore and Vera Yenissat.
    Todd M. Ammons, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, LA, for Secondary Defendants/Appellants — St. Paul Fire & Marine Ins. Co., Calcasieu Parish Sheriffs Dept, and Charles Ferguson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, ELIZABETH A. PICKETT, J. DAVID PAINTER, JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

L Plaintiff, Theodore Venissat, was rear-ended by a sheriffs deputy, Charles Ferguson, while stopped at a traffic light. Mr. Venissat and his wife sued the deputy and his employer, the Calcasieu Parish Sheriffs Department (CPSD), as well as the CPSD’s liability insurer, St. Paul Fire & Marine Insurance (St. Paul), for damages sustained as a result of the collision. The Venissats appeal the jury’s special damage awards of $25,000 in past medical expenses, $8,000 in past lost wages, and the general damage award which totaled $45,000. Also, they contend that the trial court committed reversible, legal error when it rejected their request for a jury instruction that would allow the jury to consider whether the injured party was entitled to the presumption that the accident caused his injuries.

The defendants appeal the trial court’s inclusion of St. Paul in the judgment rendered in favor of the plaintiffs. They assert that St. Paul’s coverage is inapplicable in this case because the policy has a self-insured retention clause that requires the CPSD to pay for judgments or claims up to $250,000, which exceeds the total damage award of $83,000.

We find that the jury erred in rendering its awards of special damages and general damages; therefore, we amend the judgment to reflect past medical expenses in the amount of $75,000; past lost wages of $32,000; and the pain and suffering component of general damages in the amount of $60,000. The jury’s awards of $5,000 for loss of enjoyment of life and $10,000 for mental anguish are affirmed. Therefore, the total general damage award is $75,000.

I.

ISSUES

1.Did the trial court err when it rejected the plaintiffs’ request for a Housley v. Cerise jury instruction, | ^regarding a presumption that the accident caused Mr. Venissat’s cervical spine injuries, even though he had been diagnosed with pre-exist-ing and occasionally symptomatic, cervical degenerative disc disease before the accident?

2. Were all of the plaintiffs post-accident medical expenses incurred for the treatment of accident-related injuries, therefore entitling him to an increase in the award for medical expenses?

3. Did the plaintiff establish that his entire claim for past lost wages consisted of wages lost as a result of accident-related injuries, therefore, entitling him to an increase in his past lost wage award?

4. Was the jury’s general damage award of $45,000 abusively low, considering the plaintiff received almost three years of medical treatment and underwent a three-level discec-tomy after the accident?

5. Was St. Paul erroneously cast in judgment for the damages awarded to the plaintiffs since the CPSD’s $250,000 self-insured retention provision of the St. Paul policy was not exceeded by the damage award?

II.

FACTUAL BACKGROUND

On November 1, 2002, sixty-eight year old plaintiff, Theodore Venissat, was rear-ended by Deputy Charles Ferguson’s patrol car as he sat in his stopped vehicle at a red traffic light. Mr. Venissat refused treatment at the scene, but sought medical treatment a few days later for the overall body soreness and pain in his neck and shoulders that manifested in the immediate days following the accident. For approximately the next four months, his family physician, Dr. Kevin Schlamp, treated him conservatively with pain medication, anti-inflammatory medication, and physical therapy for a perceived neck sprain and/or strain.

IsBecause his symptoms continued to recur, on April 7, 2003, Dr. Schlamp ordered an MRI to further investigate the source of his problems. The MRI showed that a herniated disc was protruding into the spinal canal at the C4-5 level. Dr. Schlamp also viewed deterioration in the cervical spine, which he attributed to degenerative disc disease, at the C5-6 and C6-7 levels. Dr. Schlamp had previously diagnosed this degenerative disc disease with arthritic changes in 1996, at which time he also first noted complaints from Mr. Venissat of symptoms that were suggestive of a possible cervical disc herniation. It was not until the MRI was taken in 2003, however, that he objectively determined the existence of a disc herniation at C4-5. He also opined at that time that the herniation was caused by the 2002 rear-end collision. Dr. Schlamp referred Mr. Venissat to orthopedic surgeon, Dr. Dale Bernauer of Lake Charles, Louisiana, for further evaluation and treatment.

Dr. Bernauer evaluated Mr. Venissat and recommended that he undergo a cervical discectomy and fusion at the levels C4-7, having found herniations at all three levels. Mr. Venissat sought a second opinion regarding the recommendation of surgery with neurosurgeon, Dr. Thomas Bertuccini of Lafayette, Louisiana. Dr. Bertuccini met with and evaluated Mr. Venissat on January 14, 2004. Based on his evaluation and review of the MRI results, he agreed that there was a cervical disc herniation at the C4-5 level. He also diagnosed bilateral foraminal stenosis (narrowing of the cervical disc space) due to degeneration of the discs at the lower levels. Nevertheless, Dr. Bertuccini opined that surgery was not immediately necessary due to his impression, after conducting additional testing, that no neuro-logic deficits were being caused by these conditions. Instead, Dr. Bertuccini recommended continued conservative treatment and a six-month follow-up evaluation.

|4Mr. Venissat had been medically advised about the risks of further injury, particularly paralysis, that could arise if the herniation was not surgically addressed. He consequently sought a third opinion with neurosurgeon, Dr. Homero Anchondo of Houston, Texas. Dr. An-chondo evaluated Mr. Venissat about three months later, on April 1, 2004, and opined that surgery, sooner rather than later, would be necessary to alleviate Mr. Venis-sat’s symptoms and to reduce or eliminate any risk of spinal cord injury that could be caused by the herniated disc. Finding also that significant deterioration had occurred in the cervical spine at the lower levels, he agreed with Dr. Bernauer’s recommendation for a three-level fusion. Mr. Venissat agreed to move forward with the surgery. On May 14, 2004, Dr. Anchondo performed a discectomy and spinal fusion surgery at the C4-7 levels. Following what was deemed by his doctors to have been a successful surgery, it took Mr. Ven-issat approximately a year to- recover. He was left with a limited range of motion in the neck as a result of the fusion.

As stated earlier, at the time of the car accident, Mr. Venissat was sixty-eight years old and was actively employed at a local refinery as a security guard, although he had previously retired from his employer of forty-three years. After the car accident, he continued to work until the day before the May 14th surgery; by that time he was seventy years old. About a year after his surgery in the Spring of 2005, he was released to return to work by Dr. Anchondo; however, Mr. Venissat chose to resign to reenter retirement.

The jury found that Mr. Venissat sustained injuries as a result of the November 1, 2002 rear-end collision and then awarded the following general damages, totaling $45,000: pain and suffering, $25,000; permanent disability, $5,000; loss of enjoyment of life, $5,000; and mental anguish, $10,000. He was ^awarded the following special damages by the jury: past medical expenses, $25,000; and loss of past wages, $8,000. Mrs. Venissat was awarded $5,000 in loss of consortium damages. The total damage award was $83,000.

Mr. and Mrs. Venissat have appealed the general damage and special damage awards, arguing that an increase is justified by the evidence produced at trial. They also allege that the trial court committed reversible, legal error by failing to provide the jury with the instruction of law, as set forth in Housley v. Cerise, 579 So.2d 973 (La.1991), which states that a person is entitled to a presumption that a disability resulted from an accident, if the person was in good health prior to the accident, but thereafter continuously manifests a disabling injury, and the medical evidence reasonably supports the possibility of such a causal link. They contend that the omission of this instruction contributed to the low damage awards rendered by the jury.

The defendants collectively disagree and argue that, based on the evidence presented, the jury did not err in rendering the special or general damage awards, nor did the trial court err in failing to provide a Housley instruction to the jury. They argue that the majority of Mr. Venissat’s medical treatment, including portions of the surgery, addressed pre-existing degenerative conditions found at the C5-7 levels of his spine that were not caused or aggravated by the accident. The defendants contend that Mr. Venissat’s actual injuries caused by the accident were minor, soft tissue injuries that resolved within four months after the collision. They base this on medical records showing that Mr. Ven-issat was initially released from Dr. Schlamp’s care in February 2003, after he expressed a successful resolution to his neck and scapular pain as a result of treatment with prescribed medication and physical therapy.

| ^Consequently, the defendants argue that the jury reasonably rejected the requests for full compensation for the three-level cervical surgery and all other “over-treatment” of Mr. Venissat’s neck, as well as the request for payment of all of his claimed lost wages accrued post-surgery. The defendants speculate that these awards reflect the jury’s intent to only compensate the plaintiff for approximately one-third of the damages sought, ie., those which they believed were likely caused by the car accident. The defendants also contend that the general damage award set by the jury is consistent with this rationale and, therefore, is also not abusively low.

In answer to the appeal, the defendants also allege that the trial court erred in rendering judgment against St. Paul. They argue that St. Paul’s liability coverage was not triggered in this case because the self-insured retention clause of its policy with the CPSD requires the CPSD to pay up to $250,000 in damages before St. Paul’s obligation arises. Because the total damage award rendered by the jury was $83,000, they contend that it was error for the trial court to hold St. Paul liable.

The plaintiffs, on the other hand, contend that St. Paul was properly named in the judgment. They assert that they satisfactorily carried their burden of proving that St. Paul had in effect a policy of liability coverage issued to the CPSD for the damages sustained, while no evidence was submitted during trial to establish any limitations on this coverage. Accordingly, they argue that the trial court did not err in rendering judgment against St. Paul as well.

III.

LAW AND DISCUSSION

Omission of Jury Instruction

The plaintiffs sought a jury instruction on the presumption of causation that is set forth in Housley v. Cerise, 579 So.2d 973 (La.1991), which states:

|7[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Id. at 980 (quoting Lucas v. Ins. Co. of N. America, 342 So.2d 591, 596 (La.1977)). The special jury charge that was requested by the plaintiffs is a direct quote of this language. According to the record, the trial judge denied the request for the inclusion of the charge in the jury instructions and stated his reason for doing so as follows:

[I] felt there was evidence showing that this defendant [sic] not only was he not in good health at the time but the bad health that he suffered was similar to the condition in which we’re all here this week, a neck condition, and because of that I don’t think the charge would be appropriate.

The record reveals that the trial court is referring to evidence consisting of medical testimony and medical and employment records documenting Mr. Venissat’s history of a degenerating and previously injured neck/cervical spine that was occasionally symptomatic prior to the accident at issue. The record shows that in 1989 Mr. Venissat suffered a work-related fall for which he complained of injury to his neck, middle back, and left shoulder. In 1992, Mr. Venissat stated on a periodic medical questionnaire given at his place of employment that he was not in good health due to a “neck problem.” In 1996, Mr. Venissat reported that he had a bicycle accident while at work and that he sustained injury to his neck as a result. The record is unclear regarding the full extent of the treatment he received for the complaints of pain and injury that occurred before 1996. The record does reveal that in 1996 he received treatment from his family physician, Dr. Schlamp, for complaints of neck pain and “tingling” down his right arm to his index and middle | ¡¿fingers — which are similar to some of his complaints asserted after the 2002 accident that is at issue in this case — resulting in a diagnosis of an arthritic neck and loss of joint space at C6-7 and degenerative changes from C4-7 in Mr. Venissat’s cervical spine.

Despite these facts, the plaintiffs contend that the trial court erroneously concluded that this history precluded the inclusion of the Housley charge in the instructions to the jury. They assert that any symptoms associated with the pre-existing degenerative conditions or prior injuries had resolved years before the 2002 collision occurred. They contend that Mr. Venissat was not incapacitated by these pre-existing conditions or those prior accidents, as is particularly evidenced by the fact that he was able to maintain perfect attendance for the last twelve years of his employment before retiring. The plaintiffs argue that, consequently, Mr. Venissat was a “healthy” person, as that term relates to the presumption of causation at issue.

Moreover, the plaintiffs argue that the trial court’s decision to reject the instruction on the presumption of causation constituted legal error because the burden was never properly placed on the defendants to prove to the jury that some cause, other than the accident, existed for Mr. Venissat’s spinal injuries and symptoms. They contend that the jury was inadequately instructed, which resulted in its failure to properly compensate them for all of the injuries, medical treatment, and lost wages that were necessitated by the accident. For these reasons, they assert that the trial court’s ruling constitutes a reversible error of law, requiring this court to undertake a de novo review of the facts.

The question of whether Mr. Venissat was entitled to have this instruction on causation presented to the jury is a question of fact that cannot be disturbed on appeal absent a finding of manifest error. Viviano v. Progressive Sec. Ins. Co., 05-125 (La.App. 3 Cir. 1/11/06), 920 So.2d 313, writ denied, 06-359 (La.4/28/06), 927 So.2d 290 (citing Seitz v. Scofield, 01-1295 (La.App. 5 Cir. 2/26/02), 812 So.2d 764, writ denied, 02-0861 (La.5/24/02), 816 So.2d 855). A finding is manifestly erroneous if no reasonable factual basis exists for the finding in the record. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). An important caveat is that when there are two permissible views of the evidence, the fact finder’s choice between them cannot be deemed manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

If the appellate court finds, however, that manifest error was committed, this error will require a de novo review, if the court finds that this omission was so prejudicial that it materially affected the result and deprived a party of substantial rights. Chaisson v. Avondale Indus., Inc., 05-1511 (La.App. 4 Cir. 12/20/06), 947 So.2d 171, writ denied, 07-411 (La.4/5/07), 954 So.2d 145 (citing Lam v. State Farm Mut. Auto. Ins. Co., 03-180 (La.App. 4 Cir. 4/1/05), 901 So.2d 559, rev’d on other grounds, 05-1139 (La.11/29/06), 946 So.2d 133). The fourth circuit explained this analysis as follows:

By using the manifest error standard, the court presumes that the jury utilized the correct law. Rathey v. Priority EMS, Inc., 04-0199, p. 27 (La.App. 4 Cir. 1/12/05), 894 So.2d 438, 458, reh’g denied, (2/24/05), unit denied, 05-0789 (La.5/6/05), 901 So.2d 1107, writ denied, 05-0802 (La.5/6/05), 901 So.2d 1108.
The appellate court will conduct a de novo review ‘if the jury applied the incorrect law because of erroneous jury instructions’ and it ‘could have affected the jury’s decision.’ Id. at pp. 27-28, 894 So.2d at 459. De novo review is used only if the jury charges precluded ‘the jury from reaching a verdict based on the law and the facts.’ Jones v. Liberty Mut. Ins. Co., 568 So.2d 1091, 1094 (La.App. 5th Cir.1990). The reviewing court considers ‘the circumstances of the case and the instructions as a whole, and should measure the “gravity or degree of error.” ’ Rathey, 04-0199, p. 28, 894 So.2d at 459, Jj^quoting Jones v. Liberty Mut. Ins. Co., 568 So.2d 1091, 1094 (La.App. 5th Cir.1990). ‘Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice.’ Nicholas v. Allstate Ins. Co., 99-2522, p. 8 (La.8/31/00), 765 So.2d 1017, 1023.

Chaisson, 947 So.2d at 190.

Jury instructions are adequate when they fairly and reasonably denote the issues and provide the correct principles of law for the jury to apply to those issues. Fleming v. Acadian Geophysical Servs., Inc., 02-264 (La.App. 3 Cir. 10/2/02), 827 So.2d 623, writ denied, 02-2717 (La.1/10/03), 834 So.2d 440. In other words, the trial court must give jury instructions that properly reflect the law applicable to the facts of the particular case. Brown v. Diamond Shamrock, Inc., 95-1172 (La.App. 3 Cir. 3/20/96); 671 So.2d 1049. This court explained in Iorio v. Grossie, 94-846, pp. 2-3 (La.App. 3 Cir. 10/4/95); 663 So.2d 366, 368-69:

A trial court should give all requested instructions that correctly state the law, provided that they are material and relevant to the litigation. Courts are not obligated to give the specific jury instructions submitted by the parties, but omission of a requested instruction containing an essential legal principal [sic] may constitute reversible error. A court has fulfilled its duty if its instructions fairly and reasonably point out the issues presented by the pleadings and evidence and provide the principles of law necessary to resolve those issues.

(Citations omitted).

First, applying the manifest error standard of review, we find that based on the evidence presented at trial, the trial court did not err by rejecting the Housley instruction. The facts that were presented could reasonably lead one to conclude that Mr. Venissat was not in good health before the accident, a finding that is sufficient to preclude the application of the presumption in this case, and to preclude the inclusion of the charge in the jury instructions. In summary, the evidence showed |nthat Mr. Venissat suffered from pre-existing degenerative changes in his cervical spine that were symptomatic from time-to-time prior to the 2002 accident. The record reflects that he was involved in prior accidents affecting his neck and/or cervical spine and shoulders and that he raised complaints and/or sought treatment multiple times in the years preceding the accident for pain and radiculopathy believed to have been generated by those pre-existing conditions and/or earlier trauma. In light of these facts, we cannot say that the trial court manifestly erred by finding that Mr. Venissat was not in good health, nor in consequently, rejecting the Housley instruction as inapplicable to this case. A discussion of whether legal error occurred and a de novo review is necessary is, therefore, moot.

Special Damages

Past Medical Expenses

Past medical expenses are special damages that are capable of being determined with reasonable mathematical certainty and, as such, they must be proven by the person seeking them by a preponderance of the evidence. Chatelain v. Rabalais, 04-28 (La.App. 3 Cir. 7/7/04), 877 So.2d 324. The plaintiff seeking to recover past medical expenses must first show, through medical evidence, the existence of the claimed injuries and a causal connection between the injuries and the accident of which he or she is complaining. Wright v. Gen. Aviation Co., 04-772 (La.App. 5 Cir. 11/30/04), 889 So.2d 1115. When claims for the accrued medical expenses are supported by medical bills, these expenses should be awarded unless there is contradictory evidence or reasonable suspicion that the bills are unrelated to the accident. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App. 2 Cir. 12/19/01), 803 So.2d 1039, writ denied, 02-493 (La.4/26/02), 814 So.2d 558. A jury manifestly errs if the victim has proven his or her medical expenses by a preponderance of the | ^evidence, and it fails to award the full amount of the medical expenses proven. Gunn v. Robertson, 01-347 (La.App. 5 Cir. 11/14/01), 801 So.2d 555, writs denied, 02-170, 02-176 (La.3/22/02), 811 So.2d 942 (citing Revel v. Snow, 95-462 (La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ denied, 95-2820 (La.2/2/96), 666 So.2d 1084); see also, Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

In this case, the plaintiffs introduced medical bills establishing that a total of $74,971.77 in medical expenses for treatment and surgery were incurred after the rear-end collision. The defendants, however, argued to the jury that these expenses were excessive and should be discounted because that amount included costs of treatment for unrelated, previously existing degenerative cervical spine conditions. Ultimately, the jury awarded $25,000, an amount that is approximately one-third of the total amount of past medical expenses sought.

It is clear based on the testimony and evidence presented in the record that Mr. Venissat suffered from cervical spine problems both before and after the accident. The problem faced by the jury, then, was determining whether all of the problems of which Mr. Venissat complained were exacerbated by the accident. We can only speculate as to the jury’s specific findings regarding which alleged injuries and treatment it believed were a consequence of the accident, but it is apparent that the jury intended to only compensate the plaintiffs for a portion of Mr. Venissat’s injuries and treatment. We find, however, that this discounting of the sought-after medical expenses is not reasonably supported by the record.

“In order to reverse the findings of a jury, an appellate court must find from the record that a reasonable factual basis does not exist for the finding or that the finding is clearly wrong.” Bernard v. Guilbeau, 05-844 (La.App. 3 Cir. 2/1/06), 922 So.2d 683, 687 (citing Vaughn v. Progressive Sec. Ins. Co., 03-1105 (La.App. 3 Cir. 3/2/05), 896 So.2d 1207). In this case, the record shows that testimony was offered by Mr. Venissat and his wife, establishing that over the course of the immediate days following the collision, he developed pain in the cervical spine and shoulder, for which he sought treatment with his primary care physician, Dr. Schlamp, resulting in an ultimate diagnosis of a disc herniation. Although the plaintiffs contend that Mr. Venissat was already injured before the accident occurred, we did not find that there was any proof offered by defendants, on the other hand, establishing that he was actively suffering from, or being treated for, any neck or cervical pain prior to the collision. Likewise, they failed to provide any definitive evidence of the existence of a cervical disc herniation before the 2002 collision.

What the defendants, instead, established was that Mr. Venissat had been diagnosed with degenerative disc disease in 1996, for which he received conservative treatment, and that in 1996 and prior to that time, he had also suffered cervical spine injuries and related symptoms for which he had also received treatment. They also introduced medical records establishing that Dr. Schlamp had been suspicious of the possible existence of a cervical disc herniation or of Mr. Venissat’s susceptibility to the occurrence of the condition as early as 1996.

Considering all of this, we find that these facts provide reasonable support for the conclusion that, more likely than not, the accident caused all of Mr. Venissat’s complained of injuries after the 2002 collision either by directly creating new injuries or aggravating his pre-existing conditions. This conclusion is supported by the testimony of Mr. Venissat’s family physician, Dr. Schlamp, and his surgeon, Dr. Anchondo, who both opined that the accident caused the herniation and likely aggravated and made symptomatic those previously existing degenerative and arthritic conditions in his cervical spine. We do recognize that Dr. Bertuccini, who 1! ¿examined Mr. Venissat once, found it impossible to render an opinion as to whether the herniation at C4-5 or the other conditions were caused by or made symptomatic by the accident, considering Mr. Venissat’s medical history, and that Dr. Bernauer, who examined Mr. Venissat twice, did not offer an opinion in this regard.

We note that the diagnosis of a cervical disc herniation at C4-5 was agreed upon by all three orthopedic surgeons who evaluated Mr. Venissat as well as the existence of degenerating discs below the area of the herniation. The only issue amongst them was whether the surgery was a needed treatment at the time. Two of those orthopedic surgeons, Drs. Bernauer and An-chondo, opined that Mr. Venissat would benefit from surgery, while Dr. Bertuccini solely disagreed as to the necessity of the surgery. However, he added that he would maintain this opinion as to the need for surgical intervention so long as Mr. Venissat’s neurological exams remained normal and he refrained from engaging in heavy activity.

As referenced earlier, proof of a causal relationship between the accident and any claimed resulting injuries must be established by a preponderance of the evidence:

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. American Motorist Insurance Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Aucoin v. State Farm Mut. Auto. Ins. Co., 505 So.2d 993 (La.App. 3d Cir.1987); Richard v. Walgreen's Louisiana Co., 476 So.2d 1150 (La.App. 3d Cir.1985). Plaintiff must prove causation by a preponderance of the evidence. Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989). The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Mart v. Hill, 505 So.2d 1120 (La.1987); Villavaso v. State Farm Mut. Auto. Ins. Co., 424 So.2d 536 (La.App. 4th Cir.1982).

Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759. We find that the plaintiffs successfully carried this burden.

A tortfeasor’s responsibility for his actions includes all of the natural and probable consequences of his tortious conduct. Perniciaro v. Brinch, 384 So.2d 392 (La.1980). In a situation in which the tortfeasor aggravates a pre-existing injury, he or she is required to compensate the victim for the full extent of the aggravation. Id. “The defendant’s liability for damages is not mitigated by the fact that the plaintiffs pre-existing physical infirmity was responsible in part for the consequences of the plaintiffs injury by the defendant.” Lasha, 625 So.2d at 1005. Moreover, a tortfeasor must pay for medical treatment of his victim, even over treatment or unnecessary treatment, unless such treatment was incurred in bad faith. Gunn, 801 So.2d 555.

Here, we find that the medical evidence and facts presented proved that it is more probable than not that the accident caused Mr. Venissat’s disc herniation and resulted in aggravation of his pre-existing conditions. The plaintiffs established with medical bills the amount of the expenses incurred to treat these injuries and no evidence of bad faith in incurring these expenses was presented at trial. Therefore, we amend the jury’s award of past medical expenses and render an award of $75,000, commensurate with those expenses established in the record.

Past Lost Wages

At trial, Mr. Venissat’s expert economist, Dr. Randy Rice, provided a calculation of lost wages totaling $32,000 to the date of trial, adjusted for inflation. The jury, on the other hand, awarded only $8,000 in past lost wages. Defendants argue on appeal that this award is not manifestly erroneous and is consistent with the Injury’s apparent conclusion that not all of Mr. Venissat’s medical treatment, and hence, lost wages incurred after surgery, were a consequence of the subject accident.

To recover for actual wage loss, a plaintiff must prove the length of time missed from work due to the tort and must prove past lost earnings. Craven v. Universal Life Ins. Co., 95-1168 (La.App. 3 Cir. 3/6/96); 670 So.2d 1358, writ denied, 96-1332 (La.9/27/96); 679 So.2d 1355. Past lost earnings are susceptible of mathematical calculation from evidence offered at trial. Id. An award for past lost earnings requires evidence as reasonably establishes the claim, which may consist of the plaintiffs own testimony. Id. An award for past lost earnings is not subject to the much-discretion rule when it is susceptible of mathematical calculation from documentary proof. Mormon v. Stine, Inc., 95-615 (La.App. 3 Cir. 11/2/95); 664 So.2d 600.

Mathews v. Dousay, 96-858, p. 15 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 513. Mr. Venissat proved his claim for past lost wages. He established that he was not released to return to work after the cervical surgery until approximately one year thereafter. Also, his expert economist submitted calculations of the total lost wages for that time period in the amount of $32,000. This evidence of lost wages was not contradicted by the defendants. There is no evidence in the record to support an award of only $8,000 in past lost wages to Mr. Venissat. Again, the jury manifestly erred in discounting this award in attempts to only compensate the plaintiff for the past lost wages it believed were caused by accident-related injuries. The past lost wage award of $8,000 is, accordingly, amended to $32,000, as established by the evidence presented during the trial.

General Damages

A jury possesses vast discretion in its assessment of general damages, such that upon appellate review such awards may only be disturbed if there has been a clear abuse of that discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993) (citing Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1977)). “[I]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient.” Id. at 1340 (quoting Reck v. Stevens, 373 So.2d 498, 501 (La.1979)). The facts submitted as evidence must be reviewed by the appellate court in the light most favorable to the judgment rendered. Id. (citing Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)).

After reviewing the record, we find that the award for pain and suffering of $25,000 is below that which a reasonable trier of fact could assess in such a case. The jury verdict form reflected an affirmative finding by the jury that Mr. Venissat was injured as result of the rear-end collision. However, as discussed earlier, the jury consistently calculated special damage awards, and we believe also, a general damage award, that reflects the conclusion that Mr. Venissat suffered a “short-lived” soft-tissue injury as a result of the accident. The medical evidence does not reasonably support such a conclusion, but rather shows that the injured plaintiff was an individual in his late 60s who suffered from a degenerating cervical spine, resulting in him being more susceptible to the injuries and pain that, not coincidentally, developed after the accident. The evidence is undisputed that within the two days following the accident, Mr. Venissat had developed chronic pain and radiculopa-thy, ultimately believed to have been caused by trauma from the accident. The record also reflects that Mr. Venissat only achieved relief of his chronic pain and radi-culopathy symptoms after he had undergone the three-level cervical discectomy and fusion — approximately two years after the accident occurred.

Prior to undergoing the surgery, Mr. Venissat testified that the chronic pain affected his sleep, his disposition, and overall quality of life. Mrs. Venissat confirmed that she observed these negative changes in her husband until his problems | iswere resolved by the surgery. Moreover, the record reflects that although Mr. Venissat was able to continue to work after the collision, he and his wife testified that he did so while managing his pain with medication and physical therapy, neither of which provided him with lasting results. Considering all of this, and specifically noting the medical assessments that were made in this case, the age of the injured plaintiff, and the residual affects of the injury and subsequent cervical fusion, we amend the prior award of $25,000 for pain and suffering and raise it to the lowest reasonable amount of $60,000. The quantum of all other claims comprising the total general damage award — $5,000 for loss of enjoyment of life and $10,000 for mental anguish — are affirmed. Therefore, the total general damage award is $75,000.

The Self-Insured Retention Clause

It is undisputed that at the time of the November 1, 2002 accident involving Mr. Venissat and Deputy Ferguson, St. Paul had in effect a policy of automobile liability insurance issued to the CPSD. Deputy Ferguson was driving a CPSD patrol car and was on-duty when, while reaching down for his radio, he rear-ended Mr. Venissat. The defendants do not dispute that Deputy Ferguson was at fault and caused the collision.

The St. Paul policy included a self-insured retention endorsement of $250,000 per accident. After the jury’s verdict, totaling $83,000, was rendered, the trial court entered a judgment, naming Deputy Ferguson, the CPSD, and St. Paul as the parties liable for the payment of those damages, with legal interest from the date of filing, along with court costs. The defendants challenged St. Paul’s inclusion in the judgment during a post-trial hearing before the trial court. Their argument was rejected by the trial court, which found that the evidence presented at trial established |1flthat the St. Paul policy provided coverage for the accident, but that no evidence limiting this coverage had been introduced.

We find that the trial court did not manifestly err when it named St. Paul as a liable defendant in the judgment. The plaintiffs bore the burden of establishing that the policy coverage applied. Ho v. State Farm Mutual Auto. Ins. Co., 03-480 (La.App. 3 Cir. 12/30/03), 862 So.2d 1278. The burden rested with the insurer, St. Paul, however, to establish the existence of any policy limits or exclusions. Tunstall v. Stierwald, 01-1765 (La.2/26/02), 809 So.2d 916. We find that the plaintiffs satisfactorily carried the burden of establishing coverage for their damages by introducing into evidence the automobile liability policy issued by St. Paul to the CPSD, without objection, and by eliciting the testimony of the CPSD’s risk manager, who testified that the terms of the policy provided coverage for the damages caused in the accident at issue. However, we find that the defendants did not satisfy their burden of showing any applicable limitations on this coverage. Accordingly, we find no error in the trial court’s designation of St. Paul as a judgment-debtor.

IV.

CONCLUSION

For the foregoing reasons, we amend the jury verdict for past medical expenses, past lost wages, and pain and suffering awarded to Theodore and Vera Venissat to reflect the following damages: past medical expenses, $75,000; past lost wages, $32,000; and pain and suffering, $60,000. The jury’s awards of $5,000 for loss of enjoyment of life and $10,000 for mental anguish are affirmed. Therefore, the total general damage award is $75,000. All other aspects of the judgment are affirmed. Costs of this appeal are assessed to defendants, St. Paul Fire & Marine | ^Insurance Company, Charles Ferguson, and the Cal-casieu Parish Sheriffs Department.

AFFIRMED AS AMENDED.

PICKETT, J., dissents.

ON REHEARING

. Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

hWe grant the Application for Rehearing filed on behalf of plaintiffs, Theodore Venissat and Vera Venissat, for the sole purpose of amending our original opinion to reflect an award of $5,000 to Vera Ven-issat for loss of consortium. Thus, our “Conclusion” embodied in our original opinion is hereby amended and reformed to read as follows:

“For the foregoing reasons, we amend the jury verdict for past medical expenses, past lost wages, and pain and suffering awarded to Theodore and Vera Venissat to reflect the following damages: past medical expenses, $75,000; past lost wages, $32,000; and, pain and suffering, $60,000. The jury’s awards of $5,000 for loss of enjoyment of life and $10,000 for mental anguish are affirmed. Therefore, the total general damages award to Theodore Venissat is $75,000. We affirm the jury’s award of $5,000 to Vera Venissat for loss of consortium. All other aspects of the judgment are affirmed.
Costs of this appeal are assessed to defendants, St. Paul Fire & Marine Insurance Company, Charles Ferguson, and the Calcasieu Parish Sheriffs Department.”

AFFIRMED AS AMENDED.


author:
LEON A. CANNIZZARO, JR., Judge.
      BELSOME, J.,

text:
    LOUISIANA STATE BOARD OF ETHICS v. Robert MURRAY and the Hon. Arthur A. Morrell, Commissioner of Elections for the Parish of Orleans.
    No. 2007-CA-1219.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 2007.

      Alesia M. Ardoin, Kathleen M. Allen, Louisiana Board of Ethics, Baton Rouge, LA, for Louisiana State Board of Ethics.
    Robert Murray New Orleans, LA, In Proper Person, Defendant/Appellant.
    (Court Composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR. Judge DAVIS S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   LEON A. CANNIZZARO, JR., Judge.

_JjThe defendant, Robert Murray, appeals from a district court judgment rendered in favor of the Louisiana State Board of Ethics (“the Board”), disqualifying him as a candidate for the office of Louisiana State Representative, District 91, in the October 20, 2007 election. We reverse the district court’s judgment and reinstate Mr. Murray’s candidacy.

FACTS

On September 6, 2007, Mr. Murray qualified to run for the office of Louisiana State Representative, District 91, by submitting his Notice of Candidacy to the office of the Honorable Arthur A. Morrell, Clerk of Criminal District Court for the Parish of Orleans. In his Notice of Candidacy, Mr. Murray swore, under oath, that he did not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act (“CFDA”), La. R.S. 18:1481 et seq. On July 3, 2007, Mrs. Alesia M. Ardoin, an attorney for the Board, had notified Mr. Murray by certified letter, return receipt requested, that he had outstanding late fees that were due in connection with the October 4, 2003 election, in which he was a candidate for the office of Clerk of Court for Criminal District Court for Orleans 1 ¡¿Parish, and that if the fines were not paid, the Board would object to his candidacy for any future office on the grounds set forth in La. R.S. 18:492(A)(5). Attached to the letter was a certified copy of a November 29, 2006 judgment rendered against Mr. Murray by the Nineteenth Judicial District Court for the Parish of East Baton Rouge, in the matter of State Board of Ethics v. Dwayne “Twin” Alcorn, et al., Case No. 528,122, which ordered Mr. Murray to pay the Board a total of $1,300.00 in civil penalties plus legal interest for failure to timely file a campaign finance disclosure report and an election day expenditure report in connection with the October 4, 2003 election.

On September 13, 2007, the Board, in its capacity as the Supervisory Committee on Finance Disclosure, filed a petition in Civil District Court against Mr. Murray and the Honorable Arthur Morrell, Clerk of Criminal District Court for Orleans Parish, objecting to Mr. Murray’s candidacy. The Board alleged that Mr. Murray had falsely certified on his notice of candidacy that he did not owe any outstanding fines, fees, or penalties pursuant to the CFDA. The Board further alleged that it had assessed late fees against Mr. Murray on October 14, 2004, for failure to timely file a ten-day prior to the primary election (10-P) campaign finance disclosure report by September 24, 2003 and an election day expenditure | sreport (EDEP) by October 14, 2003, relative to the October 4, 2003 election. The Board further alleged that following a contradictory hearing its order assessing $1,300.00 in late fees was subsequently converted into a judgment by the Nineteenth Judicial District Court for the Parish of East Baton Rouge in the matter of State Board of Ethics v. Dwayne “Twin” Alcorn, et al., Case No. 528,122, on November 29, 2006. Mr. Murray did not file an answer to the Board’s petition.

On September 17, 2007, the district court conducted a hearing on the Board’s challenge to Mr. Murray’s candidacy. Although, Mr. Morrell appeared at the hearing in his capacity as the Clerk of Criminal District Court, neither Mr. Murray nor his attorney appeared at the hearing. The trial judge, however, noted for the record, that Mr. Murray had called the court that morning and advised her law clerk that he was out of town and that his attorney could not appear due to a previously scheduled trial in Baton Rouge. The trial judge further noted that Mr. Murray told the court that he had attempted to contact the Board to arrange to pay the fines, but those attempts were refused. Mr. Murray also informed the court that he had no evidence to offer the court to show that at the time he qualified for the District 91 seat that he did not owe the fines in question.

Ms. Ardoin appeared for the Board and introduced into evidence a certified copy of the Notice of Candidacy, a certified copy of the Board’s order and a certified true copy of the November 29, 2006 judgment rendered against Mr. | ¿Murray by the Nineteenth Judicial District Court, in the amount of $1,300.00 plus legal interest and costs, as well as a certified copy of the July 3, 2007 letter from the Board informing him that it would object to his candidacy in any future election if the fines were not paid. Ms. Ardoin also informed the court that at the time the Board had two other lawsuits pending against Mr. Murray in the Nineteenth Judicial - District Court, Suit Nos. 552,127 and 558,151, and that domiciliary service was made on Mr. Murray in those suits at 1517 Harrison Avenue, New Orleans, LA 70122, on March 13, 2007 and August 27, 2007, respectively. The Board introduced into evidence the certified copies of the service returns from the East Baton Rouge Parish Clerk of Court.

The trial court, after considering the law and evidence, rendered a judgment in favor of the Board and disqualified Mr. Murray as a candidate for the office of Louisiana State Representative, District 91, in the October 20, 2007 election. Mr. Murray appealed.

ASSIGNMENTS OF ERROR

Mr. Murray raises the following assignments of error:

1. The trial court erred in concluding that sufficient service was made upon Mr. Murray pursuant to La. R.S. 18:1408D;
2. The trial judge erred in failing to recuse herself in light of the fact that she and Mr. Murray were opponents in a previous election; and,
3. The trial court erred in failing to determine whether Mr. Murray was aware of the 2006 judgment against him for failure to pay the $1,300 civil penalties to the Board.

LAW AND DISCUSSION

With regard to the first assignment of error, the sufficiency of service and notice of the petition objecting to the candidacy, Louisiana Revised Statute 18:1406 provides, in part:

|RPetition; answer; notification
A. An action objecting to the calling of a special election, objecting to candidacy, or contesting any election shall be instituted by filing a petition in a court of competent jurisdiction and venue and posting a copy of the petition in a conspicuous place at the entrance of the office of the clerk of court where the petition is filed.
B. The petition shall set forth in specific detail the facts upon the objection or contest is based....
C. The defendant shall be served with citation directing him to appear in court no later than 10:00 a.m. on the fourth day after suit was filed, subject, however, to the provisions of R.S. 18:1408(D). The defendant is not required to answer the petition, but if he answers, he shall do so prior to trial.

La. R.S. 18:1407 provides:

Appointment of agent for service of process
By filing notice of candidacy a candidate appoints the clerk of court for each parish in which he is to be voted on as his agent for service of process in any action objecting to his candidacy, contesting his qualification as a candidate in a second party primary election or in a general election, or contesting his election to office.

La. R.S. 18:1408 provides:

Service of process; sending notice and copies; documents to be filed
A. If service of process is to be made on the appointed agent, as authorized by R.S. 18:1407, such service shall be made by serving citation on this agent, but at the same time that service is made on the appointed agent, a diligent effort shall be made to make personal service on the defendant at his domiciliary address as shown by his qualifying papers.
B. When service is made on the appointed agent, he shall immediately send notice thereof, together with a copy of the citation, by certified mail, return receipt requested, or by commercial courier as defined in R.S. 13:3204(D), when the person to be served is located outside of this state, to addressee only, to the defendant at | fihis domiciliary address as listed in his notice of candidacy. If the appointed agent has reason to believe that the candidate is temporarily absent from his domiciliary address as listed in his notice of candidacy, he shall give additional notice to the candidate in the manner required by this Subsection by mailing a copy of the citation to any place where the candidate temporarily resides.
C. Proof of mailing, certified by the official mark of the United States Postal Service, or by commercial courier as defined in R.S. 13:3204(D), when the person to be served is located outside of this state, along with the return receipt if received by the agent, shall be filed in the proceedings.
D. Service of process on and citation of the appointed agent, together with the posting of the petition as provided in R.S. 18:1406, shall be sufficient service to give the trial court jurisdiction over the person of the defendant.

La. R.S. 18:1409 provides, in part:

Trial; decision; appeal
A. (1) Actions objecting to the calling of a special election, objecting to candidacy, or contesting an election shall be tried summarily, without a jury, and in open court. The trial shall begin no later than 10:00 a.m. on the fourth day after suit was filed.
(2) If the trial defendant does not appear on the date set for the trial, either in person or through counsel, the court shall appoint an attorney at law to represent him by instanter appointment made prior to the commencement of the trial. In a case where a court appointment of an attorney to represent the defendant is made, the proceedings shall be conducted contradictorily against the court-appointed attorney.

. Mr. Murray argues that service was insufficient because he was never personally served by citation with notice of the suit prior to the hearing, and nothing in the record indicates otherwise. However, he acknowledges in his brief that Mr. Morrell, as Clerk of Court for the Criminal District Court of Orleans |7Parish, was properly named a defendant in the suit objecting to his candidacy, and that pursuant to La. R.S. 18:1407 was his appointed agent for the purpose of service of process. The record reflects that the petition objecting to Mr. Murray’s candidacy was filed on September 13/2007. Therefore, the trial court had to commence the hearing no later than 10:00 a.m. on the fourth day after the suit was filed, in this case by 10:00 a.m. on September 17, 2007. The first page of the transcript does not indicate that Mr. Morrell made an appearance for the record. However, it is clear from reading the transcript that at some point after the hearing had begun Mr. Morrell came into the courtroom and was recognized by the trial court. The return on the citation to Mr. Morrell' indicates that he was not served with the citation until 10:40 a.m., on the day of the hearing. This was at least forty minutes after the time at which the hearing was required by law to begin and at most one hour and forty minutes after the time at which he was required to appear in court pursuant to the citation.

In Darnell v. Alcorn, 99-2405, p. 12 (La.App. 4 Cir. 9/24/99), 757 So.2d 716, 722-23, we held that serving the Clerk of Court as a legislative candidate’s agent for service of process pursuant to La. R.S. 18:1407 after the hearing challenging the candidacy had begun violated due process and was insufficient to confer personal jurisdiction over the candidate, even though the court had appointed an attorney as Curator Ad Hoc to represent the absent defendant in accord with La. R.S. 18:1409 A(2). In Darnell, this court stated:

In the instant case, the initial inquiry is whether the trial court had personal jurisdiction over Alcorn. We find it is impossible to conclude that the court had personal jurisdiction over the defendant. The record is uncontradicted that Alcorn was not personally served by lathe Civil Sheriffs office. Further, the trial court acknowledged that its only basis for jurisdiction was service on Edwin Lombard, the Clerk of Criminal District Court for Orleans Parish. However, that service was only effected after the hearing began on September 20, 1999. The record is devoid of any evidence that the Clerk of Court took any steps to comply with the provisions of LSA-R.S. 18:1408 B regarding notice to Alcorn by certified mail. Indeed, we opine that at that stage, it would have been a vain and useless act.

99-2405, p. 12, 757 So.2d at 722-23 (emphasis in original).

In the matter before us, as in Darnell, the Clerk of Court was not served with the citation of the suit challenging the candidate’s candidacy until after the hearing challenging the candidacy had begun. In Darnell, we held that this violated the candidate’s rights of due process, stating, that “[t]he essence of due process is notice and an opportunity to be heard. 99-2405, p. 12, 757 So.2d at 723. The court also noted that “[t]he Code of Civil Procedure requires that in order to obtain personal jurisdiction through service upon the agent, service upon him must be requested in sufficient time to permit the Clerk of Court to properly discharge his duty to mail the petition and citation to the defendant.” 99-2405, pp. 12-13, 757 So.2d at 723.

Here, as in Darnell, we find that the candidate was denied notice and the opportunity to be heard that are required for due process. Additionally, we note that the laws governing the conduct of elections must be liberally interpreted to promote rather than defeat candidacy. Darnell, 99-2405, p. 4, 757 So.2d at 718-19. Therefore, we must reverse the trial court judgment and reinstate Mr. Murray’s candidacy.

laOur decision regarding the first assignment of error is dispositive of this case. Thus, we need not consider the remaining assignments of error.

DECREE

Accordingly, the judgment of the trial court is hereby reversed. Mr. Murray’s candidacy for the office of State Representative, District 91, is hereby reinstated.

REVERSED.

McKAY, J., dissents for the reasons assigned by Judge BELSOME.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissents with reasons.

|TI respectfully dissent from the majority’s opinion. The trial judge correctly noted the limited time available to contest the election qualifications of a candidate. In doing so, she acknowledged the latest date and time a hearing should commence. The trial judge further noted that Mr. Murray contacted the court that morning before the hearing, sometime prior to 9:00 a.m.

Unfortunately, the record is vague with respect to when the Criminal Clerk of Court, Arthur Morrell, entered the hearing. While Mr. Morrell’s appearance is not noticed on page one of the transcript, he participates at page seven of the ten page transcript. If sendee of process is correlative of notice then these facts indicate notice. The facts presented in this case are distinguishable from those of Darnell v. Alcorn, 1999-2405 (La.App. 4 Cir.1999), 757 So.2d 716, which the majority relied upon. These facts support sufficient notice. Mr. Murray was fully aware of the proceedings and Mr. Morrell was present at the hearing. Given the limited parameters that exist when contesting candidacy, we should not encourage parties to avoid service that would defeat an election contest. Therefore, I do not agree with the majority’s opinion.

Additionally, I reiterate my concern as set forth in Louisiana State Board of Ethics v. Garrett, 2006-0263 (La.App. 4 Cir. 3/21/06), 929 So.2d 176. The question as to whether La. R.S. 18:492(A)(5) can pass constitutional muster still ^remains. Again, as in Garrett, a constitutional challenge to the statute has not been raised and therefore cannot be explored by this Court. Thus, based on the record in this case I dissent.

      . La. R.S. 18:492(A)(5) provides:
      A. An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:

      (5) The defendant falsely certified on his notice of candidacy that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act as provided in R.S. 18:463(A)(2).

      . La. R.S. 18:1495.4(B)(4) provides:
      Each candidate shall file a report no later than the tenth day prior to the primary election which shall be complete through the twentieth day prior to the primary election.

      . La. R.S. 18:1532(A) provides, in pertinent part:
      In addition to all other reports required by this Chapter, no later than ten days after a primary election and not later than ten days after a general election, each candidate ... required to file reports pursuant to this Chapter shall file a report with the supervisory committee, on such form as the committee shall provide, which shall include: (1) The total amount of expenditures the candidate ... has made for each category of expenditures listed below for services performed or advertising broadcast or published on election day: ...

      . The citation required Mr. Morrell to appear in court at 9:00 a.m. on September 17, 2007.

      . Unlike in Darnell, the trial court did not appoint an attorney as Curator Ad Hoc to represent the absent defendant.