author: CARTER, C.J.

text:
    Sadie Mae TERRANCE, et al. v. THE DOW CHEMICAL COMPANY, et al.
    No. 2006 CA 2234.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Writ Denied Dec. 14, 2007.

      Lewis O. Unglesby, Robert M. Marion-neaux, Jr., John F. McKay, Baton Rouge, for Plaintiffs-Appellees, Sadie Mae Terrance, et al.
    Gary A. Bezet, Barrye P. Miyagi, Gregory M. Anding, Carol L. Galloway, Alicia M. Wheeler, Baton Rouge, for Defendant-Appellant, Exxon Mobil Corporation.
    Before: CARTER, C.J., PETTIGREW, and WELCH, JJ.
   CARTER, C.J.

| ¡.This survival action involves a claim by the estate and surviving spouse of James Terrance (Mr. Terrance) against Exxon Mobil Corporation (Exxon). The lawsuit asserts damages based upon Mr. Terrance’s contraction of and death from mesothelioma, a long-latency disease resulting from exposure to asbestos-containing products (ACPs). Plaintiffs initially filed suit against numerous defendants, including manufacturers and distributors of the ACPs, general labor contractors for whom Mr. Terrance was previously employed, and a variety of premises owners, including Exxon, where Mr. Terrance was allegedly exposed to the ACPs. However, all defendants settled with plaintiffs or were dismissed prior to trial except Exxon.

After a six-day jury trial, the jury awarded general damages in the sum of $5,000,000.00 for Mr. Terrance’s survival claim, plus past medical expenses and lost wages. Exxon’s motions for judgment notwithstanding the verdict (JNOV), and alternatively, for new trial or remittitur were denied by the trial court, and judgment was rendered in accordance with the jury verdict. Exxon appeals, asserting ten assignments of error. For the following reasons, we affirm.

| .BACKGROUND

During the years of 1964 through 1970, Mr. Terrance worked at the Baton Rouge Exxon refinery as a maintenance/laborer for two different employers at different times, Jacobs Constructors (Jacobs) and Nichols Construction Company (Nichols). Exxon contracted with a variety of construction companies such as Nichols and Jacobs for maintenance and construction work at the Exxon refinery. Most of the contract jobs lasted two-to-three months with eight-hour shifts in what was commonly referred to as “turn-around” projects. The work that Mr. Terrance performed at Exxon involved the chipping and stripping of insulation off of pipes, as well as the clean up and disposal of the old insulation material. All of the work was done in preparation for new insulation to be installed around the pipes. The old insulation contained asbestos, which became very dusty as it was stripped, gathered, and disposed of. As a result, Mr. Terrance was routinely exposed to asbestos dust and fibers while working at the Exxon refinery. During these same years, Mr. Terrance also worked at other oil and gas refineries, including Dow Chemical Company (Dow), performing various maintenance/labor jobs, but not the routine handling of large quantities of insulation containing asbestos.

In September 2001, Mr. Terrance was diagnosed with mesothelioma. He died four months later, on January 30, 2002. Mesothelioma is a fatal cancer of the lining of the lungs; it is almost always associated with exposure to ACPs. Mesothelioma is a long-latency disease, meaning that it does not manifest itself until anywhere from twenty-to-forty years after significant exposure to asbestos.

| ¿After Mr. Terrance’s death, his surviving spouse and adult children (plaintiffs) filed a wrongful death and survival action suit individually, and on behalf of Mr. Terrance’s estate, against the manufacturers and distributors of the ACPs to which Mr. Terrance had been exposed, Mr. Terrance’s various employers, and the numerous premises owners where Mr. Terrance was exposed to the ACPs. The lawsuit alleged that due to the negligence, strict liability, and/or intentional acts of the defendants, Mr. Terrance had contracted and died from mesothelioma as a result of his significant exposure to ACPs. At the time of trial, only Exxon remained as a defendant and the only claim at trial involved Mr. Terrance’s survival action.

Before trial, the trial court made a legal determination that Mr. Terrance’s claim against the premises owners (Exxon and Dow) was not barred by the Louisiana Workers’ Compensation Act (LWCA) because Mr. Terrance did not qualify as a statutory employee of the premises owners, and because mesothelioma was not a covered occupational disease under the version of the LWCA in effect at the time of Mr. Terrance’s exposure to asbestos. After trial, the jury returned a verdict in favor of the plaintiffs, finding that Mr. Terrance’s mesothelioma was caused by his exposure to asbestos. On the verdict form, the jury was asked to determine whether Mr. Terrance was at fault; whether Mr. Terrance’s employers, Jacobs and/or Nichols, were at fault; whether the manufacturers and distributors of the ACPs, Johns-Manville Corporation, Eagle Pitcher, HK Porter, and Foster Wheeler Corporation, were at fault; and whether Exxon and/or Dow were at fault. The jury unanimously found that Exxon was solely at fault in causing Mr. Terrance’s mesothe-lioma and resulting death. The jury awarded total general damages in the amount of $5,000,000.00. Exxon’s motions for |fiJNOV and new trial or remittitur were denied, judgment was rendered in accordance with the jury verdict, and Exxon’s appeal followed.

LAW OF THE CASE DOCTRINE

Exxon’s first assignment of error alleges that the trial court erred in requiring that the trial resume with an eleven-member jury after one juror was unable to return to serve on the jury when he suffered a heart problem during the trial. Twelve jurors were impaneled on May 23, 2006, with no provision for alternate jurors. On the fifth day of trial, May 30, 2006, one of the jurors experienced chest pain during the trial. The juror was sent to the emergency room, and the trial court was informed on May 31, 2006, that the juror could not return to jury duty. Over Exxon’s objection, the trial court directed that the trial resume with the eleven remaining jurors. Exxon moved for a mistrial, arguing that there was no stipulation by the parties to proceed with less than twelve jurors pursuant to LSA-C.C.P. art. 1761 B. The trial court denied Exxon’s motion, but stayed the proceedings to allow Exxon to apply for a supervisory writ to this court.

On June 1, 2006, this court issued an interim order to the trial court directing that a hearing be conducted to determine whether the juror would eventually be able to return to complete his service on the jury. A hearing was held on June 9, 2006, after which the trial court reported to this court that the juror would not be able to return for jury service due to a verified medical condition. As a result, this court ruled in favor of Exxon and granted a mistrial on June 14, 2006, thereby reversing the trial court, citing LSA-C.C.P. art. 1761, and stating that “[ajbsent a stipulation of the parties to | (¡proceed with less than twelve jurors, the loss of a juror results in a mistrial.” The next day, the plaintiffs filed an emergency writ with the Louisiana Supreme Court, and on June 19, 2006, the supreme court summarily reversed this court’s ruling and reinstated the trial court’s denial of Exxon’s motion for mistrial. The trial resumed on June 21, 2006, with the remaining eleven jurors who eventually reached a unanimous verdict against Exxon.

Because this court and the supreme court have previously addressed the propriety of an eleven-member jury in this case, we must consider whether the doctrine of the “law of the case” precludes us from considering Exxon’s first assignment of error. This doctrine applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. Dodson v. Community Blood Center of Louisiana, Inc., 92-2068 (La. App. 1 Cir. 11/24/93), 633 So.2d 252, 255, writs denied, 93-3158, 93-3174 (La.3/18/94), 634 So.2d 850, 851. This doctrine applies to parties who were parties to the case when the former rulings were rendered and who thus had their day in court. The law of the case doctrine avoids relitigation of the same issue, promotes consistency of results, and encourages efficiency and fairness to the parties by affording a single opportunity for the argument and decision of the matter at issue. Id.

[7We are convinced that the past action of the supreme court, reinstating the trial court’s denial of Exxon’s motion for mistrial and allowing the trial to continue with an eleven-member jury, precludes relitigation of this issue. The parties to the prior motion, writ applications, and this appeal are the same. The arguments and issues raised in this assignment of error are the same as those raised in the earlier-filed motion and writ applications. The citations to articles, statutes, and case law are the same. Thus, we conclude that reargument of this previously-decided issue is barred. All that is being raised by Exxon at this point is doubt as to the correctness of the ruling made by the supreme court. Considering the unanimous verdict and no obvious injustice, we will not question the accuracy of the former supreme court ruling in this case. See Held v. Aubert, 02-1486 (La.App. 1 Cir. 5/9/03), 845 So.2d 625, 639 (quoting from Louisiana Land and Exploration Company v. Verdin, 95-2579 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997)). See also Brumfield v. Dyson, 418 So.2d 21, 22 (La.App. 1 Cir.), writ denied, 422 So.2d 162 (La.1982). Therefore, by operation of the law of the case doctrine, we decline review of Exxon’s first assignment of error.

TRIAL COURT RULINGS

Three of Exxon’s assignments of error involve the propriety of pretrial rulings and/or rulings made by the trial court before the case was submitted to the jury. Exxon asserts that: (1) the trial court erred initially when it found that mesothe-lioma was not a compensable occupational disease under the LWCA in effect at the time of Mr. Terrance’s alleged significant exposure, that it erred again when it decided that Exxon was not Mr. ^Terrance’s statutory employer, and that it also erred in not submitting these questions to the jury; (2) the Johns-Mansville Trust Fund should have been deemed a legally responsible party and the jury so informed; and (3) Anco Insulations, Inc. (a distributor and installer of ACPs at Exxon) should have been included on the jury verdict form. We will individually address each of Exxon’s attacks on these various trial court rulings.

Compensable Occupational Disease / Statutory Employer

Exxon argues that the trial court committed legal error when it ruled that meso-thelioma was not a compensable occupational disease under the LWCA in effect at the time of Mr. Terrance’s significant exposure to ACPs. Exxon argues that because the parties stipulated that asbestos is a compound of both oxygen and metal, both of which are specifically mentioned in the definition of occupational diseases in the pertinent version of the LWCA, and mesothelioma is caused by exposure to asbestos, then mesothelioma must be a compensable occupational disease and Mr. Terrance’s exclusive remedy is under the LWCA.

Exxon relies on Brunet v. Avondale Industries, Inc., 99-1354 (La.App. 5 Cir. 12/5/00), 772 So.2d 974, writ not considered, 01-0171 (La.3/23/01), 787 So.2d 1006, for this argument. In Brunet, the plaintiff developed lung cancer from asbestos exposure. Like mesothelioma, lung cancer was not a specifically-listed disease in the pertinent version of the LWCA. However, the Brunei court recognized lung cancer as an occupational disease under the second definition in the statute, as a disease caused by contact with an oxygen/metal compound. Id., 772 So.2d at 979. 19Exxon argues that the legislature would not have intended to cover only some asbestos-related diseases (such as asbestosis), but not others (such as mesothelioma and lung cancer). Exxon reasons that any other interpretation of the LWCA would be absurd since asbestos exposure can lead to different diseases in different people, and during the pertinent time frame, limited knowledge regarding diseases caused by exposure to asbestos requires a broad reading of the LWCA.

Exxon relies on other cases that follow the reasoning outlined in the Brunet case, wherein the courts found compensable occupational diseases even though the diseases were not specifically enumerated in the statute, but were caused by contact with a listed substance. See Adams v. Asbestos Corp. Ltd., 39,952 (La.App. 2 Cir. 10/28/05), 914 So.2d 1177, 1182-1183. Following this argument, Exxon contends that because mesothelioma is covered under the LWCA, the issue of whether Exxon was Mr. Terrance’s statutory employer ... entitled to statutory immunity to tort liability ... should have been submitted to the jury.

Initially we note our disagreement with Exxon’s statement that the issue of Exxon’s statutory employer status should have been submitted to the jury. The determination of whether a principal is a statutory employer entitled to immunity is a question of law for the court to decide. Jackson v. St. Paul Ins. Co., 04-0026 (La.App. 1 Cir. 12/17/04), 897 So.2d 684, 688, writ denied, 05-0156 (La.3/24/05), 896 So.2d 1042; Maddox v. Superior Steel, 00-1539 (La.App. 1 Cir. 9/28/01), 814 So.2d 569, 572. Likewise, the question of whether a disease is compensable under the LWCA is a legal determination involving interpretation of a statute. See Lirette v. Patterson Services, Inc., 05-2654 (La.App. 1 Cir. 11/17/06), 951 So.2d 223, 226. | inTherefore, we find it was proper for the trial court rather than the jury to resolve these legal issues. See Emery v. Owens-Corporation, 00-2144 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 447, writ denied, 02-0635 (La.5/10/02), 815 So.2d 842. Furthermore, we review questions of law under the de novo standard of review, without deference to the legal conclusions of the tribunals below. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582 (La.11/29/06), 943 So.2d 1037, 1045; Farmco, Inc. v. Wilson, 05-2132 (La.App. 1 Cir. 10/25/06), 944 So.2d 665, 667.

The interpretation of a statute starts with the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. In addition, courts are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Holly & Smith Architects, 943 So.2d at 1045 (quoting from Louisiana Municipal Association v. State, 04-0227 (La.1/19/05), 893 So.2d 809, 836-837).

Prior to its amendment in 1975, LSA-R.S. 23:1031.1 listed various occupational diseases that were covered by workers’ compensation and also listed certain substances that, when they caused disease as a result of occupational exposure, that disease would also be covered by workers’ compensation. Mesothelioma was not a listed disease and asbestos was not a listed substance, although asbestosis was a listed disease. The enumerated substances, however, referred to oxygen nitrogen, and carbon and their compounds, and metals other than lead and their compounds. See the 1952 Inversion of LSA-R.S. 23:1031.1 A(l)(d) & (g). Therefore, relying upon the stipulation that asbestos is a compound of both oxygen and metal, Exxon argues the trial court erred in ruling that meso-thelioma was not a compensable occupational disease. We disagree with this argument and note that the issue is not as clear as Exxon contends.

The Louisiana Supreme Court has yet to definitively decide whether mesothe-lioma fits within the 1952 statute’s definition of occupational disease such that an employer of a worker who contracted this asbestos-related disease after 1952 but before 1975 would be entitled to tort immunity. See Powell v. Weaver, 01-2937 (La.2/7/03), 841 So.2d 742, 744 (Wiemer, J. concurrence); Graves v. Riverwood International Corp., 41,810 (La.App. 2 Cir. 1/31/07), 949 So.2d 576, 585-586, writ denied, 07-0630 (La.5/4/07), 956 So.2d 621. The current jurisprudence reveals a conflict in the courts of appeal. There is a line of cases following Brunet (Exxon’s position) in the fifth and second circuits. See Adams, 914 So.2d at 1182-1183. However, this circuit, the third circuit, and the fourth circuit have reached the opposite conclusion, holding that because the pre-1975 version of LSA-R.S. 23:1031.1 did not include mesothelioma or lung cancer as a covered disease or asbestos as a covered substance that caused disease, a tort action against the employer was not precluded. See Alexander v. Thiokol Corp., 04-625 (La.App. 3 Cir. 11/10/04), 887 So.2d 685, 688-689 12(citing Malone & Johnson, Workers’ Compensation § 361 at 143-144 (Louisiana Civil Law Treatise, Vol. 14, 2002)); Callaway v. Anco Insulation, Inc., 98-0397 (La.App. 4 Cir. 3/25/98), 714 So.2d 730, 732, writ denied, 98-1034 (La.11/19/99), 749 So.2d 666; Gautreaux v. Rheem Mfg. Co., 96-2193 (La.App. 4 Cir. 12/27/96), 694 So.2d 977, 979, writ denied, 97-0222 (La.3/14/97), 690 So.2d 39; Johnson v. Ashland Oil, Inc., 96-0323 (La.App. 1 Cir. 12/20/96), 684 So.2d 1156, 1158, writ denied, 97-0206 (La.3/14/97), 690 So.2d 37; Thomas v. Armstrong World Industries, Inc., 95-2222 (La.App. 1 Cir. 6/28/96), 676 So.2d 1185, 1187, writ denied, 96-1965 (La.11/1/96), 681 So.2d 1272. We are bound and persuaded by this line of cases cited repeatedly in our circuit, and we specifically reject the rationale in Brunet and Adams of the fifth and second circuits. While asbestos does contain oxygen and metal, all compounds that contain oxygen and metal are not necessarily covered substances for purposes of former LSA-R.S. 23:1031.1. The broad interpretation proposed by Exxon would allow any disease resulting from contact with any compound containing oxygen or metal to be covered under the LWCA. We believe this inferential-inclusion interpretation goes far beyond the intentions of the legislature. Therefore, we find no error in the trial court’s legal conclusion that mesothelioma was not compensable under the LWCA in effect at the time of Mr. Terrance’s exposure to ACPs.

Further, in Emery, 813 So.2d at 448, we held that Exxon was not a statutory employer under very similar facts (and under the same version of LSA-R.S. 23:1031.1) where a worker was exposed to ACPs while intermittently working at the Exxon refinery during his employment with an insulation company. Relying on Emery and the specific fact sub judice that | iain 1961 Exxon began to contract with construction companies to perform all of the work involved with the stripping off and disposing of old insulation from the pipes at the Baton Rouge refinery, we find no error in the trial court’s legal conclusion that Exxon was not Mr. Terrance’s statutory employer, and therefore, was not immune from tort liability. These assignments of error have no merit.

Settlement with Party not at Trial

Exxon argues that the trial court erred in its ruling that evidence of the plaintiffs’ settlement with the Johns-Manville Trust Fund was inadmissible. Generally, the trial court is granted broad discretion on its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 476-477, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094. Exxon contends that because it is undisputed that the settlement occurred, Exxon should obtain a credit for the trust fund’s share of the fault. The plaintiffs argue that Exxon simply desires to substitute a settlement document for proof at trial of Johns-Man-ville’s fault, which is not allowed. We agree with the plaintiffs on this issue and find no error in the trial court’s evidentia-ry ruling.

Exxon, as the sole remaining viable defendant at trial, was only entitled to a reduction of the damage award if the alleged joint tortfeasors, like Johns-Man-ville, were released from liability and were actually proven to be joint tortfeasors. See Cole v. Celotex Corp., 599 So.2d 1058, 1072 (La.1992); Emery, 813 So.2d at 452. Exxon was required to prove at trial that | uJohns-Manville negligently caused the plaintiffs’ damages. Raley v. Carter, 412 So.2d 1045, 1046 (La.1982). Exxon insists that it should be able to rely on the settlement documents for proof of Johns-Man-ville’s liability. However, LSA-C.E. arts. 408 A and 413 prohibit settlement documents from being admitted into evidence as proof of liability. Therefore, under Articles 408 A and 413, the trial court correctly refused to admit into evidence the settlement documents between the plaintiffs and the Johns-Manville trust fund and the amount compromised. See Rick v. State, Dept. of Transp. and Development, 93-1776 (La.1/14/94), 630 So.2d 1271, 1277 (overruled on other grounds). This assignment of error is without merit.

Jury Verdict Form

Exxon argues that the jury verdict form should have included an option for the jury to find Anco Insulations, Inc. at fault because the jury was presented with evidence that Anco supplied and installed insulation for piping at Exxon during the time period when Mr. Terrance worked at the Exxon refinery. The verdict form reveals that the jury was asked to determine whether Mr. Terrance was at fault, whether Mr. Terrance’s employers were at fault, whether various manufacturers and distributors were at fault, and whether Exxon or Dow (as premises owners) were at fault in causing Mr. Terrance’s damages. Anco was not specifically listed on the jury verdict form. However, the record reveals that both Exxon and plaintiffs consented to the verdict form after substantial discussion with the trial court and changes were made to the form. Having consented to the | ^verdict form, Exxon cannot now argue on appeal that another entity should have been included in the list of possible responsible manufacturers and/or distributors. Any objections to the jury verdict were waived when Exxon consented to the final version of the form. See Sims v. Ward, 05-0278 (La.App. 1 Cir. 6/9/06), 938 So.2d 702, 709, writ denied, 06-2104 (La.11/17/06), 942 So.2d 535, and Clay v. International Harvester Co., 95-1572 (La.App. 3 Cir. 5/8/96), 674 So.2d 398, 405-406. This assignment of error is without merit.

LIABILITY OF OTHER ENTITIES

Exxon urges three assignments of error contending that the jury erred in failing to determine that Mr. Terrance’s employers and the various manufacturers and distributors of the ACPs, as well as the other premises owner (Dow), were also liable for Mr. Terrance’s damages. When evaluating liability in an asbestos claim, traditional theories of tort liability apply, all of which require proof of causation. Emery, 813 So.2d at 452. Whether a person or entity caused another’s injuries is a question of fact subject to the manifest error rule. Id. If a jury’s factual findings have an evidentiary basis, they must be affirmed on appeal unless manifestly erroneous or clearly wrong. See Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

As stated earlier, Exxon was required to prove that the manufacturers and distributors of the ACPs, as well as Dow, negligently caused Mr. Terrance’s damages. Raley, 412 So.2d at 1046. This it did not do. Based on our review, the jury’s finding that no other entity was at fault is not manifestly erroneous. The record is void of any evidence that any other entity except Exxon actually knew of a causal relationship between asbestos ^exposure and mesothelioma or any other asbestos-exposure related disease. Multiple witnesses testified that Exxon oversaw all work that was done at the refinery and Exxon had extensive knowledge of the danger of asbestos dust and fibers, yet it did not communicate the danger to the contractors (including Mr. Terrance’s employers) or the workers employed by the contractors (such as Mr. Terrance). Although Exxon presented some conflicting testimony about whether the dangers of asbestos dust was actually communicated to the contractors, the evidence of the lack of communication was not completely refuted by Exxon. In fact, the record establishes that some Exxon employees had knowledge dating back to the early 1950’s that certain levels of exposure to asbestos dust and fibers could result in injury and disease in the lungs. Moreover, by the early 1960’s, asbestos exposure was known by some Exxon employees to cause mesotheli-oma, yet this information was not definitively communicated to the contractors or the workers. The jury was presented with abundant evidence on the issue of Exxon’s knowledge and the lack of communication regarding the dangers of asbestos. Further, the experts characterized Exxon as a “pioneer” in industrial hygiene and safety issues.

All of the expert testimony agreed that asbestos fibers are only dangerous if disturbed and inhaled. To find the manufacturers and distributors liable for Mr. Terrance’s exposure to ACPs, Exxon apparently contends that “exposure” means being in the presence of ACPs with no requirement that the asbestos fibers be released and inhaled. However, the evidence does not support this contention. The only evidence showing that |17Mr. Terrance was significantly exposed to the inhalation of asbestos dust and fibers was during the work he performed at Exxon while he was engaged in an activity that Exxon knew to be dangerous because of the high dust levels emitted when the insulation was stripped, chipped, swept, picked up, and moved.

Evidence of the mere presence of ACPs is insufficient to find the manufacturers and distributors liable to plaintiffs. See Roberts v. Owens-Corning Fiberglas Corp., 03-0248 (La.App. 1 Cir. 4/2/04), 878 So.2d 631, 642, writ denied, 04-1834 (La.12/17/04), 888 So.2d 863. There was no evidence in the record of asbestos dust created by the manufacturers and distributors of the ACPs. Likewise, there was no evidence that Mr. Terrance actually performed the stripping and cleaning insulation work that created asbestos dust at the Dow refinery. While there was evidence that insulation work was being done at the Dow refinery during some of the time that Mr. Terrance performed manual labor tasks at the refinery, there was no evidence that asbestos dust was created and inhaled by Mr. Terrance at the Dow refinery such that a significant exposure occurred at Dow. The conflicting testimony regarding the sporadic insulation work that occurred near Mr. Terrance at the Dow refinery was obviously rejected by the jury when it contrasted the extensive hands-on daily work that Mr. Terrance 11Rperformed at Exxon, where he actually inhaled the harmful asbestos dust and fibers with the full knowledge of Exxon.

Based on our review of the evidence, the record clearly establishes a reasonable factual basis to support the jury’s finding that the other entities listed on the jury verdict form were not liable for Mr. Terrance’s damages. As such, the jury’s finding of Exxon’s sole liability is not clearly wrong. These assignments of error lack merit.

NEW TRIAL

Exxon argues in two assignments of error that a new trial is warranted because of: (1) misleading and prejudicial statements made by the plaintiffs’ counsel during closing argument and (2) erroneous jury instructions. The discretionary power to grant a new trial must be exercised with considerable caution, because a successful litigant is entitled to the benefits of a favorable jury verdict. .The jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Campbell v. Tork, Inc., 03-1341 (La.2/20/04), 870 So.2d 968, 970-971; Perkins v. Allstate Ins. Co., 05-2676 (La.11/3/06), 950 So.2d 850, 852 The granting or denying of a motion for new trial rests within the wide discretion of the trial court, and its determination should not be disturbed absent a clear abuse of discretion. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84, 93-94.

Misleading and Prejudicial Statements by Plaintiffs’ Counsel

According to Exxon, plaintiffs’ counsel made several improper remarks during closing argument, which resulted in prejudice against Exxon and an improper verdict. Specifically, Exxon takes issue with plaintiffs’ counsel’s reference that Exxon was trying to blame other entities for Mr. 11flTerrance’s mesothelioma so that it could “save ... some money.” Exxon objected to the remarks made by plaintiffs’ counsel at the end of the opening statement.

The test of whether argument of counsel is prejudicial or inflammatory is whether the comment is unreasonable or unfair in the eyes of the law. This test is balanced against the well-settled jurisprudence that counsel has great latitude in argument before a jury. This latitude is subject to regulation and control by the court, which has a duty to confine argument within the proper bounds. Breitenbach v. Stroud, 06-0918 (La.App. 1 Cir. 2/9/07), 959 So.2d 926, 931; Cooper v. United Southern Assur. Co., 97-0250 (La.App. 1 Cir. 9/9/98), 718 So.2d 1029, 1038. The trial court is vested with broad discretion in conducting trials in a manner conducive to justice. Breitenbach, 959 So.2d at 931.

We find that the trial court adequately addressed Exxon’s concerns by instructing the jury that the statements and arguments made by the attorneys are not evidence. See Sims, 938 So.2d at 709. This instruction was given to the jury both before and after the closing arguments. The trial court further informed the jury before deliberations that they must decide the case without regard to sympathy, prejudice, or passion for or against any party. These instructions given by the trial court served to counteract any possible adverse effects of plaintiffs’ counsel’s remarks. Id. Therefore, we do not find the jury was unduly prejudiced by the comments. This assignment of error lacks merit.

| ^Erroneous Jury Instruction

Exxon next complains that the trial court committed reversible error when it provided erroneous jury instructions regarding the sophisticated purchaser doctrine, and by doing so, prejudiced Exxon to the extent that a new trial is warranted. We disagree. We find nothing erroneous with the instructions. Exxon specifically contends that because the trial court gave the sophisticated purchaser instruction numerous times, but only once in conjunction with the failure to warn instructions pertaining to manufacturer liability, the jury was confused and Exxon was severely prejudiced by the emphasis on the sophisticated purchaser doctrine. However, Exxon acknowledges that the trial court “eventually ... gave proper ‘manufacturer’ instructions, setting forth all the theories of manufacturer liability.”

Adequate instructions are those that fairly and reasonably point up the issues presented by the pleadings and evidence and that provide correct principles of law for the jury’s application. McCrea v. Petroleum, Inc., 96-1962 (La.App. 1 Cir. 12/29/97), 705 So.2d 787, 791. It is the trial court’s responsibility to reduce the possibility of confusing the jury. Belle Pass Terminal, 634 So.2d at 488. The adequacy of the instructions must be determined in light of the jury instructions as a whole. Johnson v. Terrebonne Parish Sheriffs Office, 95-1180 (La.App. 1 Cir. 2/23/96), 669 So.2d 577, 582, writ denied, 96-0727 (La.4/26/96), 672 So.2d 907. An appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017, 1023 Accordingly, reviewing the jury instructions in their entirety, we find that the instructions were adequate, 12iwell-considered, and not erroneous or prejudicial. This assignment of error is without merit.

DAMAGES

The jury awarded Mr. Terrance $5,000,000.00 in general damages. Exxon argues that this award is abusively high and should be reduced by this court. The trier of fact is given much discretion in the assessment of damages. LSA-C.C. art. 2324.1. Damage awards on appellate review will be disturbed only when there has been a clear abuse of that discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). The initial inquiry must always be directed at whether the trial court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse as to the factfinder’s much discretion. Emery, 813 So.2d at 457. In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the court stated: “[o]nly after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.” (Citing Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976).)

The record reflects that Mr. Terrance suffered incredible pain and numerous hospitalizations, painful procedures, nausea, severe weight loss, and fatigue in the few months between his diagnosis and death. Before his diagnosis, Mr. Terrance suffered from a severe cough, shortness of breath, and pain. The powerful pain medication that Mr. Terrance used in the few months before he died only temporarily eased his pain. The medical | ^testimony from Mr. Terrance’s physicians described horrible pain with every breath as Mr. Terrance’s lungs became increasingly compressed by the growth of the thick tumor encasing his lungs. Mr. Terrance required the use of oxygen for the shortness of breath and a walker for his increased weakness due to fatigue and weight loss, until he was finally confined to bed before he died. Mr. Terrance also suffered from depression due to his knowledge of the incurable disease he was facing. Mr. Terrance was not ready to die; he had a large, loving family. Before his illness, Mr. Terrance was actively involved in hunting, fishing, cooking, and attending/hosting family events. Mr. Terrance suffered from anxiety and worry over the problems that his death was going to cause his wife and family.

The jury heard all of the evidence and made its award. While the award is arguably on the high end of the general damage spectrum, we cannot conclude that the jury abused its vast discretion. Accordingly, Exxon’s assignment of error in this regard lacks merit.

CONCLUSION

Finding that reasonable minds could differ, the standard for denying JNOV, and that the jury’s verdict is supportable by a fair interpretation of the evidence, as is required for denial of a new trial motion, we find no manifest error in the trial court’s denial of Exxon’s motions for JNOV and new trial. Therefore, we affirm the trial court’s judgment rendered in accordance with the jury verdict. Costs of this appeal are assessed to Exxon.

AFFIRMED.

      . The original plaintiffs were Mr. Terrance’s surviving spouse, Sadie Mae Terrance, individually and on behalf of her late husband's estate, and Mr. Terrance's adult children, Katherine Terrance, Sadie Houston, Margaret T. Smith, and James C. Terrance. Before trial, the plaintiffs dismissed their wrongful death claims.

      . The total amount of damages was $5,055,260.02, plus judicial interest and costs; however, the only amount challenged on appeal is the $5,000,000.00 general damage award.

      . Sadie Mae Terrance, et al. v. The Dow Chemical Company, et al., 06-1026 (La.App. 1 Cir. 6/14/06)(unpublished writ action)

      . Sadie Mae Terrance, et al. v. The Dow Chemical Company, et al., 06-1540 (La.6/19/06), 930 So.2d 961 (unpublished writ action).

      . We note that LSA-C.C.P. art. 1797 B requires that if a trial is by a jury of twelve, only nine of the jurors must concur to render a verdict unless the parties stipulate otherwise. After the supreme court ordered that the case proceed with eleven jurors, the record does not reflect any stipulation by the parties as to the number of jurors who must concur in the verdict. However, a polling of the jury revealed the verdict was unanimous with eleven votes, two votes more than required when there is no stipulation.

      . Former LSA-R.S. 23:1031.1, in effect prior to 1975.

      . The parties do not dispute that this case is governed by the version of the law in effect at the time of Mr. Terrance’s significant exposure to asbestos, which was pre-1975, post-1952, amendment. See Austin v. Abney Mills, Inc., 01-1598 (La.9/4/02), 824 So.2d 1137, 1154. In 1975 by Acts 1975, No. 588, § 2, the legislature revised LSA-R.S. 23:1031.1 A by removing the list of specific diseases for which there was coverage under the LWCA. The parties do not dispute that since the 1975 amendment, mesothelioma would be included as a compensable occupational disease; however, the 1975 amendment is not relevant to our decision today.

      . Applying pre-comparative fault law since the plaintiffs' claims occurred prior to the enactment of comparative fault law in 1979.

      . In the "LIABILITY OF OTHER ENTITIES” section, infra, we determine that the record reasonably supports the jury’s conclusion that Exxon did not prove the liability of Johns-Manville at trial.

      . Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

      . One witness who testified about working with Mr. Terrance at Dow, Henry Williams, contradicted himself about whether they actually chipped off insulation at Dow or just cleaned up the insulation after the insulators were finished working with it. This witness also stated that they did a lot of different work at Dow that did not involve picking up insulation, such as breaking up concrete. Another witness, Morris Martin, Jr., testified that he worked with Mr. Terrance at Exxon and Dow. He stated that the Dow work did not involve working with insulation, whereas the Exxon work involved the removal and cleanup of insulation material that was very dusty and it got "all over you ... your body, [and] your face.” This witness testified that he worked with Mr. Terrance at Exxon for two months or more, removing the insulation material every day, “all day long.”

      . Exxon points out that plaintiffs’ counsel's remarks are particularly offensive, given the rule that Exxon was procedurally prohibited from presenting evidence to the jury that plaintiffs had received any monies in settlement from other sources. See Rick, 630 So.2d at 1277.

      . This is the only damage award challenged in this appeal.

      . See Lawson v. Mitsubishi Motor Sales of America, Inc., 05-0257 (La.9/6/06), 938 So.2d 35, 52.

      . See Campbell, 870 So.2d at 970-971.


source: Caselaw Access Project

author: WELCH, J. KUHN, J.,

license: Public Domain

text:
    Friday C. ADIKEMA v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS—OFFICE OF YOUTH DEVELOPMENT—Jetson Correctional for Youth.
    No. 2006 CA 1854.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.

      Mark E. Falcon, Daniel L. Avant, Baton Rouge, for Plaintiff — Appellant Friday C. Adikema.
    Cynthia G. Eyre, Baton Rouge, for Defendants — Appellees Dept, of Public Safety & Corrections, Office of Youth Development and Jetson Center for Youth.
    Robert R. Boland, Jr., Baton Rouge, for Defendant — Appellee Anne Soileau, Director, Dept, of State Civil Service.

      Before: KUHN, GAIDRY, DOWNING, MCDONALD, WELCH, JJ.
   WELCH, J.

12AppelIant, Friday C. Adikema, appeals the decision of the Civil Service Commission (Commission) upholding the designation of his resignation as one to avoid termination. We affirm.

BACKGROUND

Mr. Adikema was employed by the Department of Public Safety and Corrections (DPSC), Office of Youth Development, at Jetson Correctional Center for Youth (JCCY). He worked as an Administrative Director 3 and served with permanent status.

On January 30, 2006, Mr. Adikema was placed on suspension pending investigation of theft of state property. On February 2, 2006, DPSC notified Mr. Adikema to report to work. After Mr. Adikema reported to work, DPSC officials had him arrested, handcuffed and taken to jail, where he was charged with theft.

At the time of the arrest, JCCY Director Donna Bourque handed Mr. Adikema a Violation Report (VR-1), a document utilized by DPSC to initiate the disciplinary process, charging Mr. Adikema with aggravated malfeasance in violation of DPSC Rule 13(c). The form described in detail various building material items purchased by Mr. Adikema on his JCCY credit card for his personal use, as well as multiple charges on that card for concrete delivered to his personal residence. The VR-1 was not signed by Mr. Adikema or his employer, and it does not list a recommended disciplinary action. Mrs. Bourque also gave Mr. Adikema a letter notifying him that his initial review/Loudermill Notice was scheduled for | ^February 8, 2006.

The day before his scheduled Louder-mill hearing, on February 7, 2006, Mr. Adikema sent DPSC a letter in which he requested that DSPC accept his “voluntary resignation” effective “at the close of business this day.” DPSC received the resignation, and on February 14, 2006, advised Mr. Adikema that his separation had been designated as a “Resign to Avoid Dismissal.”

On March 9, 2006, Mr. Adikema appealed to the Civil Service Commission, challenging the propriety of the designation of his resignation. Pursuant to an agreement of the parties, the matter was submitted on briefs and, on June 16, 2006, a Civil Service referee filed a decision upholding the designation.

Mr. Adikema did not file an application for review, opting instead to allow the referee’s decision to become the final decision of the Commission, and appealed to this court. See La. Const. Art. X, § 12(A).

DISCUSSION

The final decision of the Commission is subject to review on any question of law or fact. La. Const. Art. 10, § 12; Addison v. L.S.U. Medical Center in Shreveport, 551 So.2d 750, 754 (La.App. 1st Cir.1989). The standard of appellate review for findings of fact made by referees of the Commission is the same as the review of district court decisions, that is, the Commission referee’s factual findings should not be disturbed unless they are clearly wrong or the referee committed manifest error. Dunlap v. Louisiana State University Health Sciences Ctr., 2005-1605, p. 4 (La.App. 1st Cir.6/9/06), 938 So.2d 109, 112. On appeal, with respect to the Commission’s decisions as to jurisdiction, procedure, and interpretation of laws and regulations, the court performs its traditional plenary functions and applies the error of law standard. James v. LSU Health 4Sciences Ctr. Med. Ctr. of Louisiana at New Orleans, 2001-1853, p. 3 (La.App. 1st Cir.11/8/02), 834 So.2d 470, 472, writ denied, 2003-0214 (La.4/21/03), 841 So.2d 792.

In this appeal, Mr. Adikema contends that DPSC improperly designated his resignation as a resignation to avoid dismissal in violation of Civil Service Rule 12.11(f). The rule, entitled “Resignations,” sets forth in relevant part:

(f) When, after receiving notice that his dismissal has been proposed, an employee resigns to avoid dismissal, the Standard Form 1 reporting the resignation shall so indicate and a copy thereof shall be furnished to the employee.

It is undisputed that DPSC did not give Mr. Adikema actual notice, either in writing or orally, that it had made a decision to terminate him before Mr. Adikema submitted his resignation. Mr. Adikema maintains that in order for Rule 12.11(f) to apply, the appointing authority must actually convey to the employee, in writing or orally, that a termination has been proposed. He submits that until he received such actual notice from his employer, he was free to resign and such resignation could not be construed as a resignation to avoid dismissal. Under the limited circumstances of this case, we disagree.

It is well settled that Civil Service rules have the effect of law. La. Const, art. X, § 10(A)(4); Bannister v. Dep’t of Streets, 95-0404, p. 5 (La.1/16/96), 666 So.2d 641, 645. Civil Service rules must be construed according to the rules of interpretation applicable to legislation. King v. LSU Health Sciences Center, 2003-1138, pp. 5-6 (La.App. 1st Cir.4/2/04), 878 So.2d 544, 547. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. La. Civ.Code art. 9. The following rules for statutory construction have developed in the jurisprudence: (1) it is presumed that every provision of a law was intended to serve some useful purpose; (2) it is not | ¡^presumed that the lawmaker intended for any part of the law to be meaningless; (3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; (4) it is the duty of the courts to interpret a provision of law in a manner which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and (5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory. Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 2004-1227, p. 10 (La.App. 1st Cir.6/10/05), 916 So.2d 252, 258.

Although Rule 12.11(f) requires that an employee have notice that his dismissal has been proposed prior to his resignation to avoid termination, it is silent as to what type of notice is required. As written, Rule 12.11(f) does not require the appointing authority to notify the employee, either in writing or orally, that his dismissal has been proposed prior to the resignation. Furthermore, Rule 12.11(f) is obviously designed to prevent an employee, who knows that his dismissal is imminent, from attempting to resign before the formal disciplinary process can be initiated in order to avoid the consequences of a resignation to avoid dismissal. Given the purpose of the rule, in light of the absence of any language in the provision specifying the type of notice required, we construe Rule | n 12.11(f) to authorize the designation of a resignation as one to avoid dismissal where an employee has actual or constructive notice that his appointing authority is in the process of dismissing him, and he in fact resigns to avoid the impending dismissal.

In upholding DPSC’s designation of Mr. Adikema’s resignation, the referee concluded that DPSC provided Mr. Adikema information from which there could be no doubt that his dismissal was imminent. In support of her conclusion that Mr. Adike-ma had to know that his dismissal was imminent before he submitted his resignation, the referee relied on the following factors: (1) DPSC suspended Mr. Adikema while it investigated him on the suspicion of theft of state property; (2) DPSC had Mr. Adikema arrested for theft, handcuffed and taken to jail; (3) DPSC furnished Mr. Adikema with a VR-1 initiating disciplinary action along with a letter notifying him that his initial disciplinary hearing was set for February 8, 2006, and (4) Mr. Adikema was an administrative director at JCCY and held a position of authority, and as such, had to know that the consequences of being charged with violating DPSC Rule 13(c), malfeasance-aggravated, theft of state property, and being arrested for the theft would be dismissal. The referee also concluded that under all of the circumstances, Mr. Adike-ma attempted to avoid the consequences of being dismissed by resigning one day before his disciplinary hearing.

The referee’s conclusion that Mr. Adike-ma was on notice that his dismissal had been proposed by his employer before he resigned, and its conclusion that Mr. Adikema attempted to avoid the consequences of dismissal by resigning, are factual conclusions that may not be disturbed by this court in the absence of manifest error. Both of these findings are reasonably supported by the record. ^Accordingly, we find no manifest error in the referee’s conclusion that DPSC did not violate Rule 12.11(f) by designating Mr. Adikema’s resignation as one to avoid dismissal, and we decline to disturb it.

DECREE

The decision of the Civil Service referee is affirmed. All costs of this appeal are assessed to appellant, Friday C. Adikema.

AFFIRMED.

KUHN, J., dissents with reasons.

GAIDRY, J., dissents.

KUHN, J.,

dissenting.

11A classified state employee enjoys a property right in continued employment which cannot be deprived without due process of law. AFSCME Council # 17 v. State ex rel. Dep’t of Health and Hospitals, 01-0422, p. 9 (La.6/29/01), 789 So.2d 1263, 1269. Civil Service rules have the effect of law. La. Const. art. X, § 10(A)(4); Bannister v. Dep’t of Streets, 95-0404, p. 5 (La.1/16/96), 666 So.2d 641, 645.

Civil Service Rule 12.11, entitled “Resignations,” sets forth in relevant part:

(f) When, after receiving notice that his dismissal has been proposed, an employee resigns to avoid dismissal, the Standard Form 1 reporting the resignation shall so indicate and a copy thereof shall be furnished to the employee. (Emphasis added.)

Civil Service Rules 6.5, 7.5, 8.9. 8.13. 8.18, 11.18, and 17.24 were amended effective August 5, 1992 to limit their adverse consequences to resignations submitted “to avoid dismissal.” Prior to August 5, 1992, Civil Service Rule 12.8(f) stated:

When an employee submits a resignation his appointing authority shall, if such is the case, indicate on the personnel action form reporting the transaction that the employee submitted his resignation to escape possible disciplinary action, and a copy of said personnel form shall be given the affected employee. (Emphasis added.)

Disciplinary actions include reassignments; suspensions without pay; reductions in pay; involuntary demotions, and dismissals. See Civil Service Rule 12.2(b). Thus, under the current rules, the adverse consequences of a | gdismissal can only attach to those resignations that are tendered after the employee has been notified that his dismissal has been proposed.

In this case, appellant was a classified employee who enjoyed permanent status. In her factual findings, the referee noted that although at the time of his arrest the VR-1 that Ms. Bourque handed to appellant listed the times and dates of the alleged violations, it did “not indicate what, if any, disciplinary action would be recommended and [it was] not signed by anyone.” Despite finding that appellant was not apprised of what, if any, disciplinary action DPSC would recommend against the former employee charged with aggravated malfeasance, in upholding the designation “Resign to Avoid Dismissal” in appellant’s Employee Notification Form, the referee reasoned, “Rule 12.11(f) is silent as to what constitutes notice and DPSC provided [appellant] information from which there could be no doubt that his dismissal was imminent.” In so concluding, the referee stated:

DPSC investigated [appellant] for theft of state property and DPSC had him arrested at JCCY for theft, handcuffed, and taken to jail. As he was being escorted off the grounds of JCCY, he was given a VR-1 setting forth allegations of theft and a letter notifying him that his initial reñew/[Loudermill ] hearing would be held on February 8, 2006....
[Appellant] was an Administrative Director 3 at JCCY and held a position of authority. As such, he knew that the consequences of being charged with violating DPSC Rule 13(C), Malfeasance— Aggravated, theft of state property, and being arrested for the theft would be dismissal. (Footnote added.)

Although I agree with the referee that a reasonable employee in these circumstances would realize that one consequence of his actions would be his dismissal from employment, because the Constitution mandates that Civil Service Rules have the effect of law, this court is duty-bound to apply Civil Service Rule 12.11(f) as wHt- ten, particularly since this rule was | ¡¡amended to limit the adverse consequences of such resignations to instances where notice of dismissal has been given to the employee. Nothing in this record indicates that at the time he tendered his resignation, appellant knew or otherwise had been given notice that the appointing authority had “proposed his dismissal.”

Because, according to the DPSC Employee Manual, a VR-1 may result in disciplinary action, I have no problem concluding that when he was handed the VR-1 form as he was arrested, appellant received notice that disciplinary action had been proposed. But Rule 12.11(1) requires more; it states that “after receiving notice that his dismissal has been proposed,” the resignation shall indicate that it was done to avoid dismissal. Nothing in this record supports a finding that prior to or at the time he was arrested, when he was given the incomplete VR-1 — which failed to specify any comments in the “Recommended Action” portion of the document — appellant had received notice that his dismissal had been proposed. And while I tend to agree with the referee that a person in a position of authority who works at a juvenile correctional facility should know that his arrest would result in his dismissal from service, the record is devoid of any evidence outlining the job duties of an Administrative Director 3 or otherwise setting forth appellant’s actual responsibilities such that we can impute such knowledge to him. Thus, even finding no error in the referee’s implicit determination that the formal notice provided in the VR-1 or that of a Loudermill hearing is not necessarily required under Rule 12.11(f), because disciplinary actions include reassignments, suspensions without pay, reductions in pay, involuntary demotions, and dismissals, the record simply is devoid of any evidence that 14appellant had actual notice that he would be dismissed as a result of the charges leading to his arrest.

Moreover, in the event appellant were to reapply for employment with the Civil Service after the appointing authority has successfully prosecuted the charges against him, Rule 7.5 permits the Director to reject the application of any person whose conduct has been infamous or disgraceful; or who has been adjudged guilty by a court of competent jurisdiction of a crime involving moral turpitude; Rule 8.13 permits the Director to cancel the employment eligibility of any applicant, or of any employee serving with other than permanent status following certification or employment, if his conduct has been infamous or disgraceful or if he has been adjudged guilty by a court of competent jurisdiction of a crime involving moral turpitude; and Rule 17.25 declares as ineligible from the preferred reemployment list former employees whose names have been removed from the applicable lists when the Director has found the person found not suitable for appointment to the position. Thus, under the Civil Service rules, a remedy exists if appellant is determined guilty.

Lacking any evidence whatsoever to support a finding that the notice appellant received prior to or at the time he was arrested apprised him that DPSC had proposed the consequence of dismissal from service, in light of the plain language of Rule 12.11(f) and its amendment effective August 5, 1992, and mindful that a classified state employee enjoys a property right in continued employment, under the law, the referee incorrectly upheld the appointing authority’s action of designating the separation as “Resign to Avoid Dismissal.” For these reasons, I would reverse. Accordingly, I dissent.

      . See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494. This hearing is presided over by a review officer, who makes an initial recommendation as to what disciplinary action should be taken, and the employee is officially notified of the recommended disciplinary action.

      . See Civil Service Rule 6.5(c) (making ineligible specified rate of pay for an employee reentering service if lie resigned to avoid dismissal); Rule 7.5(7) (permitting the Civil Service Director to reject the application for admission or examination of any applicant who resigned to avoid dismissal); Rule 8.13(7) (permitting employment ineligibility to any applicant who resigned to avoid dismissal); Rule 8.18 (making ineligible for noncompetitive reemployment any former employee who resigned to avoid dismissal); Rule 11.18 (making ineligible a former employer who resigned to avoid dismissal of the privilege of recrediting all accrued annual and sick leave that was cancelled upon separation); and Rule 17.25 (declaring as ineligible from the preferred reemployment list former employees who resigned to avoid dismissal).

      . See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

      . See Civil Service Rule 12.7 (requiring that a permanent employee be given oral or written notice of and the reasons for the proposed disciplinary action to be taken against him).

      . Although appellant has suggested entitlement to attorney fees, he has failed to brief this issue and, therefore, I would consider it as having been abandoned.


author: MCDONALD, J.

text:
    PARKVIEW BAPTIST CHURCH AND SCHOOL and Church Mutual Insurance Company v. Jordan WHITE and Lam D. Hoang.
    No. 2006 CA 2411.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.

      James Ryan, III, Timothy T. Roniger, Carroll Devillier, Jr., New Orleans, for Plaintiffs/Appellants Parkview Baptist Church and School and Church Mutual Insurance Company.
    Shannon Howard-Eldridge, Kathleen C. Marksbury, New Orleans, for Defendant/Appellee Farmers’ Insurance Exchange.
    Before: GAIDRY, MCDONALD and MCCLENDON, JJ.
   MCDONALD, J.

| ¡.This case arises out of a vandalism incident at Parkview Baptist School that occurred on July 7, 2002, when a group of teenagers entered the school and caused extensive damage. Parkview Baptist Church and School and its insurer, Church Mutual Insurance Company, thereafter sued the teenagers and their parents to recover for the damages. Included among the defendants were sixteen-year-old Kyle Antee, his father, Kenneth Wayne Antee, and Mr. Antee’s homeowners insurance company, Farmers’ Insurance Exchange.

Farmers’ Insurance Exchange filed a motion for summary judgment, asserting that the school vandalism by Kyle Antee was not covered, based on the intentional acts exclusion in the policy that applied to all residents of Mr. Antee’s household; thus, it had no duty to defend the Antees. The trial court granted Farmers’ Insurance Exchange’s motion for summary judgment. Parkview Baptist Church and School and Church Mutual Insurance Company appeal that judgment, asserting that Kyle Antee was staying with a girlfriend and/or planning to live with his mother at the time of his deposition, and was merely a visitor at his father’s home at the time of the vandalism.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991).

|3When the term “resident” is not defined in the policy it has been noted that the term has no absolute or precise meaning. We must, then, endeavor to ascertain the intent of the parties in accordance with the general, ordinary, plain and popular meaning of the term, unless it has acquired a technical meaning. Whether a person is or is not a resident of a particular place is a question of law and fact and is to be determined from the facts of each particular case. Our jurisprudence recognizes that the concept of residency is different from that of domicile. While a person has only one domicile, he may have several residences. Gedward v. Sonnier, 98-1688 (La.3/2/99), 728 So.2d 1265, 1270.

The intention of a person to be a resident of a particular place is determined by his expressions at times not suspicious, and his testimony, when called on, considered in the light of his conduct and the circumstances of his life. Berryhill v. Entergy New Orleans Inc., 2005-0005 (La. App. 4 Cir. 8/3/05), 925 So.2d 12, 15, writ denied, 2005-2068 (La.2/10/96), 924 So.2d 168.

THE INSURANCE POLICY

The Farmers’ Insurance Exchange policy provides as follows:

SECTION II: EXCLUSIONS

1. COVERAGE E — Personal Liability and Coverage F — Medical Payments to Others do not apply to “bodily injury” or “property damage”:

a. which is expected or intended by one or more “insureds”;

The policy further provides:

3. “Insured” means you and residents of your household who are:
a. Your relatives; or
b. Other persons under the age of 21 and in the care of any person named above.

| ¿ANALYSIS

Kyle Antee’s parents were divorced on May 14, 1992 in Texas. The divorce decree named Terri Denise Antee, Kyle Antee’s mother, as the “sole managing conservator” of Kyle Antee, and granted her “the sole legal right to determine the residence of the child.” The decree named Mr. Antee “possessory conservator” of Kyle Antee, and granted visitation as agreed upon by the parties, with a structured visitation schedule if the parties failed to agree upon visitation. Further, the decree granted Mr. Antee “the duty of care, control, protection and reasonable discipline of the child during periods of protection.”

At the time Kyle Antee participated in vandalizing Parkview Baptist School he was living with Mr. Antee. In his deposition, taken December 11, 2003, Kyle Antee testified as follows:

Q. Now, how long have you been living with your dad?
A. I, like, live with my mom one year, live with my dad the next year. It’s on and off.
Q. In July of 2002, where were you living?
A. With my dad.
Q. And that’s on Parkview?
A. Yes, sir.

Essentially, Parkview Baptist Church and School and Church Mutual Insurance Company argue that Kyle Antee’s mother had sole custody and his father had only visitation, thus he could not have been a resident of his father’s house. However, under the facts and circumstances of this ease, where Kyle Antee rotated living with one parent and then the other, it is clear he was a resident of his father’s house rather than a mere visitor. The 1 sfact that he was planning to move again at the time of his deposition does not change the facts of the case at the time of the vandalism.

After a de novo review of the record, we find no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law that Kyle Antee was a resident of Mr. Antee’s house at the time of the vandalism incident at Parkview Baptist School. Thus, the trial court judgment is affirmed. The appellants, Parkview Baptist Church and School and Church Mutual Insurance Company, are cast with costs.

AFFIRMED.

      . Further, the record shows that, in Mr. An-tee’s memorandum in support of his motion for summary judgment, he stated "On July 7, 2002, Kyle Antee was residing at his father's residence in Baton Rouge, Louisiana at the sole discretion of Terri Denise Antee.”


author: PER CURIAM. KUHN, J.,

text:
    STATE of Louisiana, through Doug MOREAU, District Attorney for the 19th Judicial District of Louisiana v. Vincent Mark CASTILLO.
    No. 2007 CE 1865.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 24, 2007.
    Doug Moreau, District Attorney, Mark D. Pethke, Baton Rouge, LA, for Plaintiff/Appellee, State of Louisiana.
    Vincent Mark Castillo, St. Rose, LA, Defendant/Appellant, Appearing Pro Se.

      Before CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDonald, McClendon, hughes, and WELCH, JJ.
   PER CURIAM.

| ¡.This is an election suit challenging the eligibility of defendant/appellant, Vincent Mark Castillo, as a candidate for the office of Governor of the State of Louisiana.

FACTS AND PROCEDURAL HISTORY

Mr. Castillo filed a notice of candidacy with the Louisiana Secretary of State, seeking to qualify as a candidate for Governor of the State of Louisiana in the primary election to be held on October 20, 2007. On September 12, 2007, Doug Mor-eau, District Attorney for the Parish of East Baton Rouge, filed a petition objecting to Mr. Castillo’s candidacy on the grounds that Mr. Castillo, as a convicted felon, is prohibited under LSA-Const. art. I, § 10, from qualifying for the office he seeks.

The record establishes that, in 2001, Mr. Castillo was convicted in the 24th Judicial District Court, Parish of Jefferson, of two felony counts of attempted extortion. After serving three years and ten months at hard labor, on October 4, 2006, Mr. Castillo was discharged from his sentence and received an automatic first offender pardon pursuant to LSA-R.S. 15:572 B(l). Mr. Castillo has not sought, nor has he received, a pardon from the Governor for the State of Louisiana.

| aAfter considering the evidence and testimony, the district court signed a judgment declaring Mr. Castillo disqualified as a candidate for governor and casting Mr. Castillo with costs and attorney fees in the amount of $1,000. See LSA-R.S. 18:495 E. This expedited appeal by Mr. Castillo follows. See LSA-R.S. 18:1409 F.

DISCUSSION

As the facts of this case are not in dispute, this court is faced with the resolution of a purely legal issue. On legal issues, an appellate court gives no special weight to the findings of the trial court, but instead exercises its constitutional duty to review questions of law and render a judgment on the record. City of Baker School Bd. v. East Baton Rouge Parish School Bd., 99-2505 (La.App. 1 Cir. 2/18/00), 754 So.2d 291, 292-98. Appellate review of questions of law is simply to determine whether the trial court was legally correct. LaCombe v. McKeithen, 04-1880 (La.App. 1 Cir. 8/30/04), 887 So.2d 48, 51, writ denied, 04-2240 (La.9/2/04), 882 So.2d 588.

Article I, Section 10(B), of the Louisiana Constitution approved by the Louisiana voters on October 3, 1998, provides in pertinent part:

The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, ... and has not afterwards been pardoned ... by the governor of this state....

Mr. Castillo advanced several challenges to the “constitutionality”' of LSA-Const. art. I, § 10. First, Mr. Castillo contends that LSA-Const. art. I, § 10 conflicts with LSA-Const. art. I, § 20, which allows for restoration of the |4full rights of citizenship upon termination of state supervision following a conviction for any offense. Mr. Castillo maintains that, pursuant to LSA-Const. art. I, § 20, he is entitled to hold public office. Under the general principles of constitutional construction, a more detailed provision prevails over a more general provision addressing the same subject matter, and the latest expression of the will of the people prevails over previously enacted conflicting provisions. Malone v. Shyne, 06-2190 (La.9/13/06), 937 So.2d 343, 352. To the extent Article I, Section 20, may be construed to conflict with Article I, Section 10, the latter, a more recent and more specific provision, prevails. Cook v. Skipper, 99-1448 (La.App. 3 Cir. 9/27/99), 749 So.2d 6, 10, writ denied, 99-2827 (La.9/30/99), 745 So.2d 601.

Second, Mr. Castillo maintains that because, as a first offender, he was entitled to an automatic pardon upon completion of his sentence, pursuant to LSA-Const. art. IV, § 5(E)(1), he is eligible to qualify as a candidate for public office under LSA-Const. art. I, § 10. An automatic pardon pursuant to La. Const, art. IV, § 5(E)(1) does not have the same effect as a full pardon granted by the governor under the same provision. See State v. Adams, 355 So.2d 917, 921-922 (La.1978). An automatic pardon requires no action by the governor. See LSA-Const. art. IV, § 5(E)(1); LSA-R.S. 15:572 B(l). Reference in LSA-Const. art. I, § 10(B) to a pardon “by the governor of this state,” is a plain reference to the gubernatorial pardon in the first sentence of LSA-Const. art. IV, § 5(E)(1), and not to the automatic first offender pardon that requires no action by the governor. Malone v. Tubbs, 36,816 (La.App. 2 Cir. 9/6/02) 825 So.2d 585, 592, writs denied, 02-2322 (La.9/11/02), 824 So.2d 1164 and 02-2448 (La.10/1/02), 826 So.2d 1110; 5see Cook, 749 So.2d at 10-11. The automatic pardon provision does not restore Mr. Castillo’s right to hold public office.

Lastly, Mr. Castillo seeks a declaration from this court that LSA-Const. art. I, § 10, approved by the voters of the State of Louisiana on October 3,1998, is a “nullity” due to alleged procedural defects in the legislative process that occurred prior to bringing the referendum to the people. The challenges to the validity of LSA-Const. art. I, § 10 were not presented to, nor considered by, the trial court. Moreover, any Election Code challenge to the election of 1998 would be untimely. LSA-R.S. 18:1405 C; see LSA-R.S. 18:1401 C.

CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed to defendant/appellant, Vincent Mark Castillo.

AFFIRMED.

KUHN, J., dissents & assigns reasons.

McDONALD, J., concurs.

PARRO, J., dissents for the reasons assigned by Judge KUHN.

KUHN, J.,

dissenting.

| ^his is an election suit challenging the eligibility of defendant/appellant, Vincent Mark Castillo, as a candidate for the office of Governor of the State of Louisiana. This appeal is untimely.

The district court’s judgment declaring Mr. Castillo disqualified as a candidate for Governor was signed September 17, 2007, at 11:55 a.m. That judgment cast Mr. Castillo with all court costs and applicable attorney fees in the amount of $1,000. Mr. Castillo’s motion for direct appeal and the attached, signed order granting that motion bear a file date of September 17, 2007, at 12:01 p.m. The order of appeal was signed on September 18, 2007; no time is specified. The record reflects that no bond was posted.

On September 19, 2007, Mr. Castillo filed in district court a request for pauper status. Pauper status was granted on September 20, 2007, at 3:10 p.m., more than three days after the judgment declaring Mr. Castillo ineligible to run was signed.

The plaintiff/appellee, the State of Louisiana, filed a motion to dismiss Mr. Castillo’s appeal for failure to comply with the requirements of LSA-R.S. |⅞18:1409 D. In order to appeal a district court judgment in an election suit, the appellant must, within twenty-four hours after rendition of judgment, obtain an order of appeal and give bond for a sum fixed by the court. LSA-R.S. 18:1409 D. The twenty-four-hour delay for an appeal in the election contest is based on the obvious need for expedited treatment. Dumas v. Jetson, 445 So.2d 424, 425 (La.1984) (Appeal bond filed twenty-two minutes after the statutory time period expired is untimely. See facts as stated in Dumas v. Jetson, 446 So.2d 747, 749 (La.App. 1 Cir.1983)). Because Mr. Castillo failed to comply with the required procedural act within the time period established by LSA-R.S. 18:1409 D, his appeal has not been properly perfected. After the 24-hour delay lapsed, the trial court’s order granting him pauper status had no effect on the statutorily-imposed bond requirements. Except where a statute may be declared unconstitutional, statutes prevail over actions or orders of courts.

Mr. Castillo failed to timely give bond for costs or timely secure pauper status. “When an appellant fails to timely take and perfect his appeal, the appellate court lacks jurisdiction to hear the appeal.” Board of Com’rs of Hammond Area Economic and Indus. Development Dist. v. All Taxpayers, Property Owners, Citizens of Hammond, 06-1832 (La.App. 1 Cir. 10/6/06), 944 So.2d 640, 643, writ denied, 06-2426 (La.11/3/06), 940 So.2d 675.

Mr. Castillo failed to comply with the mandatory provisions of LSA-R.S. 18:1409 D. The appeal is untimely, and this court lacks jurisdiction. Accordingly, the judgment of the trial court declaring appellant disqualified as a candidate for the governor’s office has become a final, definitive judgment and is no longer subject to an appeal.

      . The appellate court shall sit en banc in all election contests involving candidates for offices voted on throughout the state. LSA-R.S. 18:1409 H.

      . The district attorney has standing to bring an action objecting to the candidacy of a person he has reason to believe is a convicted felon prohibited from qualifying for office pursuant to LSA-Const. art. I, § 10. LSA-R.S. 18:495.

      . In Louisiana, a felony is defined as an offense that may be punished by death or imprisonment at hard labor. LSA-C.Cr.P. art. 933(3).

      . “A first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.” LSA-R.S. 15:572 B(l) (emphasis supplied).

      . The appellate court shall sit en banc in all election contests involving candidates for offices voted on throughout the state. LSA-R.S. 18:1409 H.


author: McCLENDON, J. GUIDRY, J.,

text:
    Larry and Rosie ADAMS v. RHODIA, INC. and Exxon Mobil Corporation.
    No. 2006 CA 1803.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2007.

      Aidan C. Reynolds, Christopher L. Whittington, Baton Rouge, LA, for Plaintiff/Appellee, Larry Adams.
    L. Victor Gregoire, Melissa A. Hem-mans, Baton Rouge, LA, Michael P. Cash, Pro Hac Vice, Houston, TX, for Defendant/Appellant, Exxon Mobil Corporation.
    Before CARTER, C.J., KUHN, PARRO, GUIDRY, and McCLENDON, JJ.
   McCLENDON, J.

lain this personal injury suit, Exxon Mobil Corporation (Exxon), the only remaining defendant at trial, appeals the judgment for damages in favor of the plaintiff, Larry Adams. After a thorough review of the record, we reverse.

FACTS AND PROCEDURAL BACKGROUND

By contract, Mr. Adams’ employer, Rho-dia, Inc. (Rhodia), provided sulfuric acid to Exxon for use at its facility. After the acid was used, Exxon returned the spent acid to Rhodia through a pipeline for regeneration of the acid for future use by Exxon and other Rhodia customers. At Rhodia, the acid was often stored in tanks, and sometimes held in rail cars.

On May 14, 2000, Mr. Kenneth Fonte-not, another employee of Rhodia, was attempting to pump spent sulfuric acid from Rhodia’s Tank 10 onto a barge. During the unloading procedure, he noticed that Tank 10, which was dedicated to receiving spent sulfuric acid from Exxon, showed an unusually rapid and high rise in temperature of 120 degrees. In compliance with company protocol, Mr. Fontenot “blocked” off the tank by shutting off all valves to the tank, including intake and outtake. Mr. Fontenot then noted the incident in the log and told the shift supervisor. According to Mr. Fontenot, normal procedure would also require the tank to remain blocked off until an explanation could be found for such an increase in temperature.

The next morning, on May 15, 2000, plaintiff, Mr. Larry Adams, relieved Mr. Fontenot some time between 5:30 a.m. and 6:00 a.m. Mr. Fontenot told Mr. Adams of the rise in temperature. Despite the normal procedure to first determine the cause of the sudden temperature rise before | ¡^unloading resumed, Rhodia ordered Mr. Adams to transfer the spent acid from Tanks 7 and 10 onto the barge. As soon as Mr. Adams opened the Tank 10 valve to unload the spent acid onto the barge, an alarm sounded. After checking the gauge in the tank farm control room, he noticed a spike in temperature. Following the same procedure as Mr. Fontenot had the night before, Mr. Adams electronically stopped the unloading of the tank from the control room, and then went outside to block off the tank by manually shutting off the valve. When Mr. Adams began to block off Tank 10, sulfur dioxide gas was released from the tank. The release occurred about 10:16 a.m. Mr. Adams suffered severe injuries from his exposure to the gas.

On May 8, 2001, Mr. Adams and his wife, Rosie, filed a petition for damages, naming as defendants Rhodia and Exxon. By the time of trial, Mr. Adams had settled with Rhodia. Rhodia, various additional defendants named by amending and supplemental petitions, and an intervening insurer were eventually dismissed from the suit.

At the jury trial, plaintiff primarily relied on the testimony of a chemical engineer, Dr. Steanson Parks, who was accepted as an expert. In Dr. Parks’ opinion, Exxon released free or insoluble hydrocarbons into the pipeline sometime between 6:30 a.m. and 6:50 a.m. on May 15, 2000, the morning of the accidental gas release. An insoluble hydrocarbon load, for example, jet fuel, posed a threat when combined with the acid and was not a material that should have been released into the pipeline and sent to Rhodia. According to Dr. Parks’ estimate, it would take approximately 40 minutes for an insoluble hydrocarbon load to reach the Rhodia facility. Based on an assumption that Tank 10 must have opened to intake material from the pipeline at around 6:30 a.m. on the morning of the accident, Dr. Parks theorized that the insoluble hydrocarbon load entered Tank 10 at that time, pin his opinion, the combination of the free or insoluble hydrocarbon and the spent sulfuric acid triggered an exothermic reaction that led to the gas release. Dr. Parks believed that the introduction of insoluble hydrocarbon from an Exxon unit into the pipeline was evidenced by a twenty plus degree rise in temperature, recorded by the Exxon unit at the time it was sending material to Rhodia, and by the post-accident finding of a half inch coating of visible, insoluble hydrocarbon on the surface of the remaining material in Tank 10.

However, on cross-examination, Dr. Parks was advised by Exxon’s counsel that the tank had been blocked off the night before and was opened only for unloading of the material just prior to the gas release at 10:16 a.m. In response, Dr. Parks admitted that he had no evidence that a hydrocarbon load entered Tank 10 and he had no other explanation for how a load of hydrocarbon could have entered the tank on the morning of the accident. On rebuttal, Dr. Parks agreed with the plaintiffs counsel assertion that, regardless of when the free or insoluble hydrocarbon from Exxon got into the tank, the presence of insoluble hydrocarbon in the tank after the accident proved their theory linking Exxon to the gas release. Thus, it was the theory that plaintiff’s relied on to establish fault on the part of Exxon.

A representative of Rhodia, who was called by plaintiff, related the findings of Rhodia’s post-accident investigation. Admittedly, Rhodia took a stream of spent acid, which had been stored in a rail car, and blended it with the spent acid material already in Tank 10. The two streams of spent acid had different chemical compositions and should not have been mixed. The two different streams were then allowed to react with each other while sitting in the tank for weeks; a process that produced a higher percentage than usual of sulfur dioxide gas. According to Rho-dia, the unloading | ¡¡procedure agitated the combined streams enough to cause the sudden release of the confined sulfur dioxide gas that injured Mr. Adams. Rhodia found no evidence that an insoluble hydrocarbon load from Exxon played any role in the 2000 accident and injury to Mr. Adams.

Dr. Kerry Dooley was called by Exxon and accepted as an expert in chemical engineering. Dr. Dooley agreed with Rho-dia that hydrocarbon played no part in the accident. He testified that spent acid generally contains about eight to nine percent soluble hydrocarbon, called acid soluble oils or “aso.” According to Dr. Dooley, while the streams of spent acid were sitting for weeks in Tank 10, the “aso” and spent acid reacted, as indicated by the build-up in temperature. As a result of the reaction, sulfur dioxide gas was produced and built up in the tank. When the unloading procedure began, the material was agitated and the gas was released suddenly. The tank’s venting capacity was overwhelmed, which allowed the explosive release of gas that injured Mr. Adams. If the material in the tank had been agitated every few days, the gas would have been released and vented gradually. Another byproduct of the reaction was the light, insoluble hydrocarbon that floated to the surface of the tank. In Dr. Dooley’s opinion, the amount of insoluble hydrocarbon measured in Tank 10 after the accident was “entirely consistent” with such a reaction during the three to four week period the material sat in Tank 10 before the unloading procedure began.

It was undisputed that the insoluble hydrocarbon found in Tank 10 post-accident was not analyzed by either party. Therefore, it was not determined through testing whether the insoluble hydrocarbon seen in the tank post-accident was a byproduct of the spent acid and “aso” reaction, or part of a free or insoluble hydrocarbon load from Exxon, such as jet fuel.

| (¡After the jury retired, a question was forwarded to the trial judge. The jury asked, “If one hundred percent of fault was on Rhodia, would all the compensation come from Rhodia?” Counsel for both sides argued as to how the question should be answered. Plaintiffs believed that the answer was no; Rhodia had settled and was no longer a party, thus no additional payment would come from Rhodia. Exxon believed that the answer was yes, and argued that if only Rhodia was at fault for the accident, the settlement payment made by Rhodia would be the total compensation paid to Mr. Adams. After the exchange, the court addressed the jury, as follows:

The Court:
The question is not susceptible to being answered yes or no and requires a further explanation. Be instructed that fault may be allocated amongst and against any person. Compensation will come from a party. Everybody understand?
[Jury Foreperson]:
No, Ma'am.
The Court:
All right. Fault or negligence can be allocated against any person. A person may be an individual or a corporation or a partnership. They can be persons and divided into fault.
Compensation, however, would come from a party in the litigation. A party is different from a person. A person may be a party. In this litigation there are two parties. You understand? Sort of? [Juror]:
One more time.
The Court:
You have two concepts you’re talking about here, fault and compensation. Fault may be allocated, allocated means spread among, any person, any persons, involved in any way. You can spread fault. Compensation, on the other hand, comes |7from a party. A party is a member of the action, the lawsuit. Does that amplify it for you? Everybody understand?
[Juror]:
So, your honor, are you saying our wording is off when we asked the question?
The Court:
You will recall that the court suggested to you that all persons are equal before the court, persons. A corporation is a person. I explained that to you. All right?
A party, however, the court did not instruct you on who is a party. A party is a litigant, a party to the action.
[Jury Foreperson]:
We do have one question too that we left in there.
The Court:
All right. What is your question?
[Jury Foreperson]:
There was a breakdown, a financial breakdown sheet, and on there at the top it was Mr. Larry Adams versus Rho-dia slash Exxonmobil. I think that sort of — we know it’s Exxonmobil but on that sheet it did say Rhodia slash Exxon.
The Court:
Well, that was the style of the case initially. The style means that was the denomination of the case in the very beginning.
[Juror]:
Your Honor, could I ask how many parties are involved in this case, numbers?
The Court:
Well, of course you can. You will recall that the court read to you the contentions of the parties. The court read to you the plaintiffs’ contentions and defendant’s contentions. Do you recall?
|s[ Juror]:
Yes, Ma'am.
The Court:
All right. So you know the answer, right? Plaintiffs, defendants.

After the exchange ended, Exxon objected to the court’s giving an instruction that had not been agreed to by the parties and argued that the instruction given led “the jury to believe that if they do not find Exxonmobil responsible, that there will be no compensation for Mr. Adams.” The court denied the objection.

After trial, the jury rendered a verdict in favor of the plaintiffs. Specifically, the jury assigned two percent of the fault to Mr. Adams, ten percent to Exxon, and eighty-eight percent to Rhodia; and, awarded a total of $4,461,000.00 in damages. A judgment incorporating the verdict was signed on March 27, 2006.

Exxon filed a motion for remittitur and a judgment notwithstanding the verdict, both of which were denied. Exxon appealed. Plaintiff answered the appeal requesting an increase in the fault assigned to Exxon.

APPLICABLE LEGAL PRECEPTS

When there is legal error implicit in the fact-finding process or when a mistake of law forecloses the fact-finding process, such as when the factfinder’s decision has been tainted by an improper and prejudicial jury instruction or erroneously admitted prejudicial evidence, a de novo review may be appropriate. State Farm Mutual Automobile Insurance Company v. Ford Motor Company, 2004-1311, p. 5 (La.App. 1 Cir. 6/15/05), 925 So.2d 1, 4; Levy v. Bayou Industrial Maintenance Services, Inc., 2003-0037, p. 7 (La.App. 1 Cir. 9/26/03), 855 So.2d 968, 974, writs denied, 2003-3161 (La.2/6/04), 865 So.2d 724 and 2003-3200 (La.2/6/04), 865 So.2d 727. A de novo review, rather than. a remand, is conducted only when the appellate court has all of the facts before it. Ferrell v. Fireman’s Fund Insurance Co., 94-1252, p. 7(La.2/20/95), 650 So.2d 742, 747; Levy, 2003-0037 at p. 7, 855 So.2d at 974.

ANALYSIS

The record before us is complete. From our review of the exchange between the court, the parties, and the jury, especially in light of the actual wording of the question presented to the trial court by the jury, it is more likely than not that the jury was misled by the instructions given by the court and assumed that a finding of no fault on the part of Exxon would result in no recovery by Mr. Adams from anyone, whether party or person. See Jones v. St. Francis Cabrini Hospital, 94-2217, p. 7 (La.4/10/95), 652 So.2d 1331, 1335.

Although the jury used the word “compensation,” it is apparent from the exchange with the court that the jury was not using the word in the same strict legal sense inferred by the trial court’s answer, that is, as a payment ordered by a court. The jury should have been instructed not to concern itself with how Mr. Adams would actually be paid or compensated for his injury. Rather, the jury’s only responsibility was to fairly assign fault and award damages based on the evidence presented to them at trial. Considering all these factors as a whole, we conclude that the instructions likely misled the jury on a crucial point, thus interdicting the fact-finding process and tainting the verdict. Therefore, no weight should be accorded the jury verdict, and we will review the record de novo. See Jones, 94-2217 at p. 7, 652 So.2d at 1335.

| inBased on a thorough de novo review of the record before us, we find that the plaintiff did not meet his burden to show that Exxon caused the accident and injury. The record did not support plaintiffs theory that a hydrocarbon load entered Tank 10 on the morning of the accident. Tank 10 showed an unusually high increase in temperature the night before the alleged release by Exxon of an insoluble hydrocarbon load and before the accident. At that time, Mr. Fontenot blocked off the tank. There is no evidence, testimonial or documentary, that the tank was opened for intake from the pipeline at any time on the morning of the accident. The only testimony concerning opening the tank the next morning came from Mr. Adams. He testified that the tank was opened for unloading, which would allow a flow of material out of the tank, not into the tank.

Nor is there any evidence in the record proving the release of an insoluble hydrocarbon load from Exxon to Rhodia at any time before the accident. Exxon did present evidence explaining the presence of a hydrocarbon sheen on the surface of the material in the tank post-accident. In addition, the record contains Rhodia’s finding that an insoluble hydrocarbon load from Exxon played no part in the accident and that the gas release was caused by Rho-dia’s decision to improperly mix and unload two incompatible streams of spent acid after a long period of stagnation. After Exxon rested, plaintiff presented no rebuttal evidence to show that Exxon’s expert and other evidence was incorrect, or that Rhodia’s investigative findings were unreasonable or unfounded.

Alternatively, even if the jury verdict was not tainted, we would reverse. The jury’s finding that plaintiff proved the requisite causal link between Exxon and the gas release was clearly wrong and not supported by the record on appeal. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

Because plaintiff was not able to show specifically how or when a load of insoluble hydrocarbon from Exxon entered Tank 10, which was the linchpin of his causation theory, plaintiff asserted that the mere presence of one-half inch of light hydrocarbon found after the accident in a tank dedicated to receiving Exxon materials, was sufficient to prove a causal link to Exxon. Exxon, however, provided a fundamentally unrebutted explanation as to how the amount of light hydrocarbon sheen on top of the remaining material in the tank most likely occurred. Exxon’s evidence, coupled with Rhodia’s internal investigation and conclusions, overwhelmed plaintiffs reliance on the mere presence of a hydrocarbon sheen observed post-accident as the only proof that a hydrocarbon load from Exxon entered Tank 10 and caused the accident. Essentially, the plaintiff was left with too many unproven assumptions. Despite the seriousness of Mr. Adams’ injuries, justice is not served by imposing damages on a party in the absence of proven fault.

Having found that plaintiff failed to meet his burden of proof, we reverse the judgment and dismiss plaintiffs suit against Exxon. Costs of the appeal are assessed to the plaintiff, Larry Adams.

REVERSED AND RENDERED.

CARTER, C.J., dissents.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

14 respectfully dissent from the majority’s opinion, reversing the trial court and dismissing the plaintiffs’ claims against Exxon. First, I do not agree that the trial judge’s instructions misled the jury such that the jury verdict was tainted. In a jury trial, the judge has a duty to give instructions, which properly reflect the law applicable in the case. La. C.C.P. art. 1792. In making his charge to the jury, a trial judge is not required to give the precise instructions submitted by either party, but must give instructions which properly reflect the law applicable in light of the facts of the particular case. LaFrance v. Bourgeois, 97-376, p. 4 (La.App. 5th Cir.10/15/97), 701 So.2d 1026, 1029, writ denied, 97-2865 (La.2/13/98), 706 So.2d 995. Further, the law is clear that an appellate court must exercise great restraint before overturning a jury verdict on the suggestion that the instructions were so erroneous as to be prejudicial. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 (La.App. 1st Cir.3/11/94), 634 So.2d 466, 488, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094.

In the instant case, the jury instructions given by the trial judge correctly pointed out that fault may be assessed against any person, but compensation, or an award for damages, can only come from a party to the action. There is no evidence Lin the record that this legally correct instruction prejudiced Exxon. In fact, the jury returned a verdict finding Rhodia, who was no longer a party to the action, eighty-eight percent at fault, and only assessed Exxon with ten percent of fault. Accordingly, because the jury instructions accurately reflect the law applicable to the issue posed by the jury, and there is no evidence in the record that these instructions misled the jury in its determination of fault, I find that a de novo review of the record is inappropriate.

Further, reviewing the record in its entirety, and applying the manifest error/clearly wrong standard, I find that there is a reasonable factual basis in the record to support the jury’s decision to find Exxon ten percent at fault for the accident at issue. Plaintiffs’ expert, Dr. Parks, testified that the Light Oil Finishing Unit (LOFU) at Exxon, which primarily treats substances such as jet fuel and uses hydrocarbons in the reactive process, sends spent sulfuric acid directly from LOFU through an exclusive pipeline system to Rhodia, without any intermediate storage. Dr. Parks stated that he analyzed a few months of data from LOFU and saw several spikes in temperature pri- or to the spike on the morning of the accident. According to Dr. Parks, free hydrocarbon entered the pipeline and was transferred from Exxon to Rhodia with the spent sulfuric acid, as evidenced by the spike in temperature on the morning of the accident and the film of light hydrocarbon on the top of the acid in tank ten.

Though Dr. Parks’ testimony was called into question, because the pipeline to tank ten had been closed by Rhodia the night prior to the accident following a similar unexplained and uninvestigated spike in temperature, Dr. Parks gave additional testimony to support his theory that free hydrocarbon contaminated the spent sulfuric acid in tank ten. Dr. Parks stated Exxon acknowledged some soluble hydrocarbon traveled with the spent sulfuric acid through the pipeline, which was permissible; however, there was no ^material safety data sheet for LOFU, and the material safety data sheet referencing the spent sulfuric acid transported to Rhodia did not indicate the type of hydrocarbon that was sent with the spent sulfuric acid, or its reactive status. Also, Dr. Parks stated that due to the fact that the tanks at Exxon and Rhodia were only tested approximately twice a day, there was a gap in time in which impurities could have entered the process. Finally, Dr. Parks asserted that a couple of weeks prior to the accident at issue, foreign hydrocarbons from Exxon had entered the pipeline and were transferred to Rhodia. Based on all of this evidence, Dr. Parks opined that Exxon sent acid contaminated with free hydrocarbons to Rhodia, and but for Exxon’s actions, Adams would not have been exposed to fumes.

Accordingly, from my review of the record, Dr. Parks presented the jury with a reasonable factual basis to support his opinion as to how the chemical reaction that led to Adams’ injury occurred, and I do not find that the jury was manifestly erroneous in assessing Exxon with ten percent of fault in this case. Therefore, I respectfully dissent from the majority’s opinion.

      . Although temperature rises in the chemical storage tanks were not uncommon, it was the quickness of the rise that concerned Mr. Fon-tenot.