author: HUGHES, J.

text:
    Troy ROBICHAUX, Shannon Robichaux, Michael J. Tuminello, Sr., and Olive D. Tuminello v. STATE of Louisiana, Through the DEPARTMENT OF HEALTH AND HOSPITALS and Through the Department of Environmental Quality and Dow Chemical Company.
    No. 2006 CA 0437.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.
    Rehearing Denied Feb. 14, 2007.

      Donald T. Carmouche, Victor L. Marcel-lo, John H. Carmouche, Gonzales, Counsel for Plaintiffs/Appellees Troy Robichaux, Shannon Robichaux, Michael J. Tuminello, Sr., and Olive D. Tuminello.
    F. Barry Marionneaux, F. Charles Mar-ionneaux, Plaquemine, David M. Bienvenu, Jr., John Michael Parker, Baton Rouge, Counsel for Defendants/lst Appellants The Dow Chemical Company and Ivy Dupree.
    William M. Hudson, Patrick B. Mclntire, Lafayette, Counsel for Defendant/2nd Appellant Louisiana DHH & DEQ.
    Robert M. Kallam, Jennifer A. Wells, Lafayette, Counsel for Defendant/3rd Appellant Industrial Haulers, Inc.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

13This appeal by Defendants, The Dow Chemical Company (Dow), Ivy Dupree, the State of Louisiana through the Department of Health and Hospitals and the Department of Environmental Quality, and Industrial Haulers, Inc., raises a number of assignments of error in the trial court’s class certification on behalf of the Plaintiffs under Louisiana Code of Civil Procedure Article 591(A) & (B)(3). Plaintiffs, through representatives Troy Robichaux, Orris Dupuy, Sr., and Marva L. Fefee, have answered Defendants’ appeal and lodged a cross-appeal seeking simultaneous certification under Article 591(B)(1), (2), and (3). For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

This suit arises out of purported groundwater contamination in Iberville Parish. The Louisiana Department of Health and Hospitals performed routine periodic testing of well water near or in the vicinity of Plaintiffs’ property in 1997 and 1998 that revealed vinyl chloride levels in excess of applicable federal drinking water standards. These test results were apparently not reported to the public until elevated levels in test results from February 2001 alerted the Department to review its records. At that point, the Louisiana Department of Environmental Quality took action to cut off use of the contaminated water and notify residents and property owners of the problem.

Plaintiffs filed suit in March 2002, alleging that the Louisiana Department of Environmental Quality and the Department of Health and LHospitals (State Defendants) were negligent in their failures to (1) report and warn class members of the 1997 and 1998 test results until 2001, (2) require and ensure remediation of the contaminated groundwater, and (3) conduct follow-up testing. Plaintiffs also alleged negligence by Dow in causing and allowing the contamination. Plaintiffs sought in-junctive relief, punitive damages under Louisiana Civil Code Article 2315.3, and remediation under Louisiana Revised Statutes 30:2015.1, enacted in 2003 to be Louisiana’s groundwater remediation statute. Additionally, Plaintiffs alleged strict liability under Louisiana Civil Code Article 2317. Most germane to the matter at bar, Plaintiffs sought class certification pursuant to Louisiana Code of Civil Procedure Article 591.

In January 2005 a two-day hearing was held on class certification. | ^Evidence included testimony by the three proposed class representatives. On January 31, 2005 the trial court initially denied certification of the class. Plaintiffs petitioned and were granted a new trial, limited to re-argument. In granting the new trial, the court stated that it had initially ruled too hastily and failed to give due consideration to Plaintiffs’ evidence. In a written ruling released on September 21, 2005 the trial court reversed itself and certified the class for remediation claims pursuant to Louisiana Revised Statutes 30:2015:1 and punitive damages except as against the State Defendants. In a judgment signed on October 18, 2005 the trial court defined the class as all landowners since 1990 in a geographically defined area including the contamination. These rulings also specify that the trial court certified the class solely under Louisiana Code of Civil Procedure Article 591(B)(3).

All Defendants have appealed this ruling, alleging error in the certification. The Plaintiffs have appealed the trial court’s determination that the class be certified solely under Louisiana Code of Civil Procedure Article 591(B)(3); they seek certification under Article 591(B)(1) and (2) as well.

II. LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 591(A) sets out the mandatory requirements for class certification:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
Is(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

Once a proposed class has demonstrated conformity with all requirements of Article 591(A), a court considering class certification must ensure that the proposed class fits into one of the four categories of class action enumerated in Article 591(B) as follows:

B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
|7(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subpara-graph B(3) might not otherwise be met.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

A trial court’s decision to certify a class merits great discretion and should be affirmed on appeal absent manifest error. White v. General Motors Corp., 97-1028, p. 13 (LaApp. 1 Cir. 6/29/98), 718 So.2d 480, 488. A trial court considering class certification should generally favor maintaining the class in light of the relative ease of subsequent modification as future developments or circumstances may wartant. Boyd v. Allied Signal, Inc., 2003-1840, p. 9 (LaApp. 1 Cir. 12/30/04), 898 So.2d 450, 456 (citing McCastle v. Rollins Envtl. Serv. Of La., Inc., 456 So.2d 612, 620 (La.1984)).

A. Mandatory Requirements for Class Certification

|sLouisiana Code of Civil Procedure Article 591(A), as quoted above, sets out five mandatory requirements for class certification: numerosity, commonality of factual or legal questions, typicality of the lead plaintiff or plaintiffs’ claims, adequacy of the lead plaintiff or plaintiffs as class representatives, and objectivity of the class definition. While class certification by the trial court is preferred for the reasons noted above, the party seeking class status has the burden of establishing these required qualifications. Carr v. GAF, Inc., 97-0838R, p. 6 (LaApp. 1 Cir. 4/8/98), 711 So.2d 802, 805-06.

1. Numerosity

The numerosity qualification requires that “the class is so numerous that joinder is impractical, but at the same time, it is a definable group of aggrieved persons.” Cotton v. Gaylord Container, 96-1958, p. 14 (LaApp. 1 Cir. 3/27/97), 691 So.2d 760, 768. A specific number is not required, but the class must entail more than mere allegations of a “large number of potential claimants.” Lewis v. Texaco Exploration & Prod. Co., Inc., 96-1458, p. 15 (LaApp. 1 Cir. 7/30/97), 698 So.2d 1001, 1012.

The trial court here found sufficiently numerous the “over two thousand landowners” in the area affected by the alleged groundwater contamination. Dow and the other Defendants argue that, far from being a numerous class, there are no plaintiffs at all. They reason that Plaintiffs have not shown evidence that any of the proposed class members are actually “aggrieved.” Defendants assert that the proposed class members, while being landowners, have no ownership interest in the groundwater beneath their property, as it is an uncaptured or “fugitive” mineral not susceptible of ownership until and unless it is reduced to possession. Defendants also argue that as Plaintiffs seek remediation costs but not | (¡individual stigma or lost value damages, they have not alleged sufficient compensable damage to have standing.

Although thought-provoking, this argument goes less toward the propriety of class certification as an essentially procedural matter and more towards the substance and merit of Plaintiffs’ claims. The only issue to be considered by the trial court in ruling on certification, and by this court on review, is whether the case at bar is one in which the procedural device of a class action is appropriate. In determining the propriety of a class action, the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood that they ultimately will prevail on the merits. Andry v. Murphy Oil, U.S.A., Inc., 97-0793, p. 3 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1129 (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) and Miller v. Mackey Int’l, Inc., 452 F.2d 424 (5th Cir.1971)). Defendants’ arguments might more properly be raised through an exception, a motion for summary judgment, or trial on the merits rather than through this inquiry, which is limited to the numerosity requirement for procedural certification of a class.

In determining whether the elements for class certification have been established, the court may consider the pleadings, affidavits, depositions, briefs, exhibits, and testimony presented at a certification hearing. Cotton, 96-1958 at p. 13, 691 So.2d at 768. Here, the trial court held a full hearing and also seems to have given serious reconsideration to the evidence upon the Plaintiffs’ motion for new trial. It found a class of over two thousand potential class members sufficiently numerous. We see no error in this conclusion.

|102. Commonality of Factual or Legal Questions

The “common character” analysis arises twice in the class certification inquiry. As a mandatory requirement under Article 591(A)(2), the court must find “questions of law or fact- common to the class.” Under the provisions of Article 591(B), which determine the type of class being certified, the court may certify under Article 591(B)(3) if it finds that the common questions from Article 591(A) predominate over any individualized claims and also that the class action format will be a superior method of adjudication. At this time, we consider the basic commonality requirement; the predominance/superiority inquiry will be discussed infra.

The State Defendants argue against a finding of commonality because Plaintiffs’ claims against them and the basis of their potential liability differs from Plaintiffs’ claims against Dow. Dow argues against commonality because it suggests factual differences as to how, whether, and to what extent the contamination occurred on land owned by potential class members. The trial court in the case at bar found that the potential class members shared common questions of law and fact in that “there is one (1) chemical at issue and two (2) common claims made by the Plaintiffs.”

Both the United States Supreme Court and the Supreme Court of Louisiana have allowed that claims based on a “common cause or disaster” are likely subjects for class certification. Ford v. Murphy Oil U.S.A., Inc., 96-2913, pp. 12-14 (La.9/9/97), 703 So.2d 542, 549-50 (citing AmChem Prod., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). Although Defendants here argue likely issues for consideration on the merits, these do not defeat the common threads shared by all potential class Plaintiffs: groundwater under their properties has been contaminated Inby a single chemical; they seek remediation and, if appropriate, punitive damages. We find no error in the trial court’s finding on this element.

3. Typicality of the Class Representatives

This requirement asks whether the class representatives’ claims are typical of those of the greater proposed class. Typicality is satisfied if the claims of the class representatives arise out of the same event, practice, or course of conduct giving rise to the claims of the other class members, and are based on the same legal theory. The representatives’ claims need not exhibit all of the various types of possible injuries or elements of damages claimed by the class as a whole. Boyd, 2003-1840 at p. 25, 898 So.2d at 464-65. The trial court in the case at bar found typicality based on the “same course of [Defendant] conduct, namely the pollution of the groundwater, and.. .the same legal theories of remuneration and punitive damages.” The trial court further bolstered its finding by noting (as it did in its commonality analysis) the unity conferred by the fact of a common contaminant.

The State Defendants and Dow argue against the finding of typicality on grounds that, regardless of the singularity of the contaminant at issue, the alleged contamination entails multiple sources and causes as Plaintiffs have named two distinct entities, Dow and Industrial Haulers, as potential tortfeasors. The Defendants point particularly to Ford v. Murphy Oil, where the supreme court ruled against class certification on the basis of multiple sources of contamination. Ford, 96-2913 at p. 11, 703 So.2d at 548.

| ^Defendants’ reliance on Ford is misplaced. That opinion did not address typicality, but rather focused on the commonality inquiry as it appears in Article 591(B)(3). Id. at p. 10, 703 So.2d at 548. As seen above, Defendants have also sought to import too much of a discussion of this case’s merits and substance into the procedural inquiry of class certification. The statute provision as quoted above emphasizes the nature of class members’ claims, not potential questions as to causation. We agree with the trial court’s determination that the potential class representatives in this matter have lodged claims typical of those likely to be raised by the rest of the prospective class.

4. Adequacy of the Lead Plaintiffs to Represent the Class

This element asks whether “[t]he representative parties will fairly and adequately protect the interests of the class.” LSA-C.C.P. art 591(A)(4). The following factors aid courts in determining this requirement: (1) the claims of the chosen class representatives cannot be antagonistic or conflict with those of other class members; (2) the chosen representatives must have a sufficient interest in the outcome to ensure vigorous advocacy; and (3) counsel for the chosen representatives must be competent, experienced, qualified, and generally able to conduct the litigation vigorously. Boyd, 2003-1840 at p. 26, 898 So.2d at 465.

The trial court here found no conflict, no difference of interest, and competent counsel, thus it decided the class’s representation was adequate. Dow seems to argue in response that class representatives should be held to a heightened standard of knowledge and participation and that the Plaintiffs here serve as little more than “litigation figureheads” who lack even a viable injury to create a sufficient and justifiable interest in the litigation outcome. Dow refers in this context to supreme court statements in a case on a nonjclass13 action matter concerning the necessary showing of “reasons personal to the owner” to justify a damages award that exceeds restoration costs. Hornsby v. Bayou Jack Logging, 2004-1297, p. 11 (La.5/6/05), 902 So.2d 361, 368.

As above, Defendants here seek to import excessive merits and substance inquiries into the class certification analysis. If the Plaintiffs, or indeed any proposed class members, lack a cause of action, this is not the occasion for such discussion. Furthermore, the reference to Hornsby is inappo-site. Hornsby does not address class certification; it addresses a plaintiffs burden of proof for recovering non-pecuniary damages over and above restoration costs. This is particularized subject matter far afield from the bases for Plaintiffs’ class certification claims.

Finally, our jurisprudence does not demand of a class representative the sort of engagement that Defendants seek to require. This court recently certified a class with a representative who, despite having a relatively small financial stake in the disputed matter, “testified that he had a claim for loss of mineral royalties and he wished to pursue that claim through the class action litigation. He further testified that he would follow all the court’s orders and would cooperate in the process by giving a deposition or appearing in court as required.” Singleton v. Northfield Ins. Co., 2001-0447, pp. 15-16 (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 65.

Here, the Plaintiff representatives have already shown their willingness to appear personally on behalf of the class. At the certification hearing, all three testified to the trial court’s satisfaction that they would be acceptable class representatives. At this point, we decline to extend the requirements for adequacy beyond the three factors described above and 114current relevant jurisprudence. We thus find no error in the trial court’s finding of adequacy.

5. Objectivity of Class Definition

The final threshold requirement for class certification is that “[t]he class is or may be defined objectively in terms of ascertainable criteria....” According to the trial court, Defendants did not contest this issue, thus the court adopted the Plaintiffs’ reasons, which emphasized the class as a geographical entity, and defined the class accordingly. Dow argues that the trial court’s definition of the class to include all landowners in the affected area since January 1, 1990 amounted to an abuse of discretion since no contamination has been shown prior to 1997. This argument is likely based on statements in the federal Department of Health and Human Services report to the effect that testing in 1994, which seems to be the first time this water was under scrutiny, did not detect vinyl chloride.

Plaintiffs refer to the conclusions of Dr. Jeffrey S. Hanor, professor of Geology and Geophysics at LSU. The record contains Dr. Hanor’s report, which details a confirmed spill of chlorinated compounds at Dow in 1993 as well as indications of an earlier release of chlorinated hydrocarbons and the company’s ongoing use of a hazardous waste dump for chlorinated compounds that resulted in similar contamination. Dr. Hanor’s report also suggests that data from testing performed between 1992 and 1994 indicated chloride contamination that had likely been migrating for some time. [Hanor Report 20] We note finally that the record also contains, as an exhibit to Dr. Hanor’s deposition, a “status report” by Defendant Ivy Dupree of Dow’s | ^Environmental Services Department. This report, dated February 4, 1991, suggests in its summary that remediation be undertaken in order to “prevent the migration of contaminants downward to the Plaquemine aquifer.”

Our review of the record leads us to conclude that the trial court’s designation of the class’s temporal origins as of January 1, 1990 was not unreasonable. As noted at the outset of this analysis, should facts be developed in the course of litigation that require modification of this designation, the trial court will be within the scope of its discretion to do so.

B. Type of Class Action

Once a proposed class has demonstrated conformity with all requirements of Article 591(A), a court considering class certification must ensure that the proposed class fits into one of the four categories of class action enumerated in Article 591(B) as quoted earlier. Generally speaking, Article 591(B)(3) classes, in which a notified potential class member may “opt out” and pursue individual litigation, are the most commonly certified. The other three types of class action are less common, exceptional due to their specificity, and, in the case of Article 591(B)(1) and (2) class actions, entail a bar against opting out. Here, Plaintiffs were certified as a class under Article 591(B)(3) alone. They request on cross-appeal that the trial court’s decision not to certify under Article 591(B)(1) and (2) be reversed. Defendants contest the certification under Article 591(B)(3).

1. Certification Under Article 591(B)(3)

Article 591(B)(3) class actions are the most often utilized. This type of class action builds on the “commonality” requirement established in Article 591(A) and asks further that the class commonalities “predominate over any questions affecting only individual members” and that the class action format be “superior to other available methods for the fair and 1^efficient adjudication of the controversy,” such as joinder or individual actions. The statute, as quoted above, provides six illustrative factors for courts to consider when determining an Article 591(B)(3) certification:

(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification; [and]
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation.

In the case at bar, the trial court certified the class under Article 591(B)(3) with the following explanation:

The questions of law and fact are common to all of the members of the class, namely there is one (1) chemical at issue and two (2) common claims made by the Plaintiffs. More importantly, these common issues predominate over any individuals claim by any one member of the class. All members of the proposed class have the same claims. For these reasons, this Court finds that under these facts, a class certification is superi- or to the other available methods of adjudication, and it would be in the best interests of efficiency and justice to continue this matter as a class action.

Dow argues that the trial court failed to consider factual differences and distinctions that could potentially affect class commonality. The State Defendants argue largely that distinctions between themselves and the private Defendants mitigate against class certification. Article 591(B)(3), however, asks only whether a proposed class’s commonalities predominate over its internal differences as a procedural matter. Internal differences |17within the proposed class that may arise on the merits and distinctions amongst defendants are not at issue. As the trial court pointed out, all proposed class members share identical claims regarding contamination by a single substance. That recoveries may ultimately vary from plaintiff to plaintiff does not defeat their cause as a whole. McCastle, 456 So.2d at 620. We thus uphold the trial court’s finding that the proposed class’s commonalities predominated over its potential internal or individual differences.

The private and State Defendants here both argue against the trial court’s ruling on the superiority of the class action format to other methods of adjudication. Dow argues against the trial court’s certification of a class on what Dow argues is a “novel, untested combination of legal issues presented.” This assertion relies upon the supreme court’s ruling that a “novel and untested” legal theory should not be made the basis of a class certification until courts have garnered enough experience and information to render judgment “in a way that preserves judicial resources.” Ford, 96-2913 at pp. 14-16, 703 So.2d at 550-51. Dow argues that Plaintiffs’ claims for remediation and punitive damages amount to an untested basis for class certifications for a number of reasons, including the relative newness of Louisiana Revised Statutes 30:2015.1, the lack of significant interpretive jurisprudence, and a lack of precedence for either class certification under the statute or for “bootstrapping” punitive damages claims from the underlying remediation claims.

The Ford theory was indeed novel: residents of St. Bernard Parish alleged that emissions from four defendant petrochemical plants caused personal and property damage “by virtue of a synergistic aecu-mulation or [ ^combination of releases.... ” Ford, 96-2913 at p. 14, 703 So.2d at 550. Writing for the court, Justice Victory found that the utter novelty of the plaintiffs’ “synergy” theory mitigated against a finding under Article 591(B)(3) and admonished that “the court must have experience with a tort in the form of several individual actions” before class certification may be appropriate. Id. at pp. 15-16, 703 So.2d at 551.

In the case at bar, it is true that Louisiana Revised Statutes 30:2015.1 dates only from 2003 and that only a handful of cases have treated the statute since its inception. We note, however, that the legislature expressly specified this statute to be procedural, not substantive; it is understood “to provide a set of procedures to be followed in litigation wherein the plaintiffs seek ‘to recover damages for the evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water.’ ” Simoneaux v. Amoco Prod. Co., 2002-1050, p. 2 (La.App. 1 Cir. 9/26/03), 860 So.2d 560, 575 (Fitzsimmons, J. concurring). This is a far cry from the Ford scenario where the plaintiffs sought to launch a truly novel and untested theory of causation requiring scientific testimony and expertise that would likely far outstrip a court’s ability to evaluate for purposes of class certification. We also note that Louisiana Revised Statutes 30:2015.1 has already been used as the basis of a class certification in Turner v. Murphy Oil, U.S.A., Inc., 234 F.R.D. 597 (E.D.La.1/30/06). We conclude that Dow’s argument on this point is misplaced.

liflThe State Defendants argue against the superiority of the class format on the basis' that the State departments, not the Plaintiffs, should be the party or parties seeking remediation. • This argument is also misplaced. . Louisiana Revised Statutes 30:2015.1 was designed to encourage private litigation against contaminators while ensuring State administrative oversight of the remediation efforts borne of the private litigation. Loyd J. Bourgeois, Comment, Private Actions Seeking Remediation or Restoration Damages: Who Ensures the Cleanup Actually Occurs':’, 17 Tul. Envtl. L.J. 355/369 (2004); see also Simoneaux, 2002-1050 at p. 2, 860 So.2d at 576. That the State in this litigation is at once a defendant and a potential “plaintiff’ in terms of its role in enforcing and ensuring cleanup does not affect the Plaintiffs’ ability to be certified as a class.

One further aspect in determining superiority is the consideration of policy concerns through the factors listed in the statute, particularly judicial efficiency and individual fairness. The supreme court has instructed trial courts to consider the enumerated factors as well as any additional potential relevant factors in its deliberations. McCastle, 456 So.2d at 617-18. Here, the trial court’s recitation references the factors in its finding that “it would be in the best interests of efficiency and justice to continue this matter as a class action” and its determination that the .uniformity of the proposed class members’ claims and the singularity of the chemical contaminant rendered class action the best method of adjudication. We find no error in this conclusion and affirm the trial court’s certification of the Plaintiffs as a class pursuant to Article 591(B)(3).

2. Certification Under Article 591(B)(1) and (2)

12nPlaintiffs have asked this court to approve certification under Article 591(B)(1) and (2) as well as (3). The trial court declined to do so, writing that: “This Court finds that the Plaintiffs have adequately satisfied [Article] 591(B)(3); therefore this Court need not consider the other enumerated sections of [Article] 591(B).” As noted above, certifications under (1) and (2) are exceptional and there is scant jurisprudence.

a. Certification Under Article 591(B)(1)

Article 591(B)(1) class actions, commonly referred to as “prejudice actions,” are certified on a “non-opt out” basis to address litigations “where the defendant or absent class members would be prejudiced without a single, unitary decision” and varying judgments will force inconsistent conduct from a defendant found liable. Kent A. Lambert, Certification of Class Actions in Louisiana, 58 La. L.Rev. 1085, 1098-1100 (1998); See Schexnayder v. Entergy Louisiana, Inc., 04-0636, p. 12 (La.App. 5 Cir. 3/29/05), 899 So.2d 107, 116.

This type of class action does not apply readily in the case at bar. Conventional knowledge suggests that these types of class actions depend on a “real risk that separate actions may occur,” which at this time is not the case here. Lambert, Certification of Class Actions, 58 La. L.Rev. at 1098. Further, it is also generally understood that these actions are not appropriate when the remedy at issue is one of money damages alone instead of, for example, injunctive relief. A defendant is not viewed as subject to “inconsistent conduct” if the difference is payment to one party and not to another. Id. at 1099. As the case at bar is one for damages alone, this type of certification is not appropriate.

Article 591(B)(1) class actions may also be certified to protect potential class members’ access to a limited fund for recovery. In order to |⅞1 obtain such certification, movants have the burden to show that there is a finite and actually limited fund. Id. Plaintiffs suggest here that constitutional limits on punitive damages be viewed as the sort of limited fund that this provision covers. In our view, this does not amount to a sufficient showing of a quantifiably limited fund. Thus, certification under Article 591(B)(1) is not appropriate under the facts as currently presented. We note, however, that as the trial court has significant discretion to modify a class certification judgment, Plaintiffs may raise this claim in the future should the facts develop accordingly,

b. Certification Under Article 591(B)(2)

Article 591(B)(2) class actions, commonly thought of as “civil rights actions,” are certified on a “non-opt out” basis in order to ensure the completeness of appropriate declaratory or injunctive relief concerning conduct by the defendant that may be either ordered or blocked. Lambert, Certification of Class Actions, 58 La. L.Rev. at 1100-01. See Defraites v. State Farm Mut. Auto Ins. Co., 03-1081, p. 16 (La.App. 5 Cir. 1/27/04), 864 So.2d 254, 262.

Plaintiffs here seek to be certified under Article 591(B)(2)'on the grounds that Defendants have not acted to clean up the contamination; they seek a court-supervised remediation plan be adopted and undertaken, which they state is “declaratory in nature.” [Plaintiff Brief 27]. This is clearly Plaintiffs’ stated ultimate goal, and a valid one. Practically speaking, however, this litigation seeks the monetary means to effect remediation pursuant to the groundwater statute. As such, it is not the sort of “purely” declaratory or injunctive relief claim best addressed by this provision and class certification is not appropriate under Article 591(B)(2).

C. Separation of Powers

I^Dow’s final assignment of error states: “in the absence of actual damage, certification of a class-wide remediation remedy violates Louisiana’s separation of powers.” Dow argues that class certification in this matter will disturb the legislature’s intended scheme of expressly delegating groundwater remediation matters to the environmental agencies under the executive branch. Because, Dow argues, the proposed class seeks only remediation and punitive damages and not compensatory damages for actual loss or harm sustained, no claim exists within “the original jurisdiction of the court” and the judicial branch should refrain from engagement in what should be a matter limited to the oversight of the legislative and executive branches of state government. Dow argues emphatically that “[t]he plaintiffs in this case simply do not have an actionable claim for damages. For that reason, the judicial branch cannot exercise original jurisdiction.... ”

Dow’s argument, as others above, goes more applicably to a properly lodged exception. We note, however, that Plaintiffs have indeed lodged a valid actionable claim. They allege negligence on the part of Dow; this negligence allegedly caused, and perhaps allowed to worsen, groundwater contamination in sufficient amounts to constitute a per se violation of federal drinking water regulations. Plaintiffs also allege that negligence on the part of the State Defendants worsened the contamination through inaction and exposed Plaintiffs to risk of harm through the agencies’ failure for several years to warn and notify property owners of the contamination. Plaintiffs’ cause of action arises under tort principles and not Louisiana Revised Statutes 30:2015.1, which Plaintiffs use here in a procedural capacity to comply with proper procedures for seeking remediation. TheJ^statute’s language allows them to do so without a specific claim for individually compensable damages:

Notwithstanding any law to the contrary, upon the filing of any litigation, action, or pleading by any plaintiff in the principal demand, or his otherwise making a judicial demand which includes a claim to recover damages for the evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water... (emphasis added). LSA-R.S. 30:2015.1(A)

We thus conclude that this assignment of error does not overcome the trial court’s decision to certify the Plaintiffs as a class in this matter.

CONCLUSION

We conclude that this case is proper for class certification. Plaintiffs have demonstrated that the proposed class satisfies the enumerated requirements of Louisiana Code of Civil Procedure Article 591(A) and the class belongs properly within the category represented by Article 591(B)(3). The action of the district court in certifying the Plaintiffs as a class is hereby affirmed. Costs in the amount of $7,994.00 will be assessed in equal parts to the State of Louisiana through the Department of Health and Hospitals and through the Department of Environmental Quality, Dow Chemical Company, and Industrial Haulers, Inc.

AFFIRMED.

DOWNING, J., concurs.

      . Defendant Industrial Haulers, Inc. has submitted briefs in this matter, the essence of which adopt the assignments of error advanced by Dow Chemical Company and the State Defendants.

      . U.S. Dep’t of Health & Human Serv., Public Comment Release; Review of Groundwater Sampling Results from the Myrtle Grove Trailer Park Well System, June 18, 2002.

      .Plaintiffs abandoned the claims for injunc-tive relief in their Fourth Amending Petition of April 15, 2002.

      . This provision, in effect at the time in question but repealed by the legislature in 1996, provided that punitive damages could be awarded "if it is proved that plaintiff's injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances.”

      . The statute is comprehensive, but reads in pertinent part as follows:
      A. The legislature hereby finds and declares that Article IX, Section 1 of the Constitution of Louisiana mandates that the natural resources of the state, including water, are to be protected,, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people and further mandates that the legislature enact laws to implement this policy.
      B. Notwithstanding any law to the contrary, upon the filing of any litigation, action, or pleading by any plaintiff in the principal demand, or his otherwise making a judicial demand which includes a claim to recover damages for the evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water, such plaintiff filing same shall provide written notice by certified mail, return receipt requested, which notice shall contain a certified copy of the petition in such litigation, to the state of Louisiana through the Department of Environmental Quality. To the extent that any such litigation or action seeks to recover for the evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water, the Department of Environmental Quality, in accordance with its respective areas of constitutional and statutory authority and regulations adopted pursuant thereto, shall have the right to intervene-in such litigation or action in accordance with the Louisiana Code of Civil Procedure. The department shall not have the right to independently assert a plea for damages to usable ground water beyond that stated by the plaintiff in the principal demand. However, nothing in this Section shall dimmish the authority of the department from independently bringing any civil or administrative enforcement action. No judgment or order shall be rendered granting any relief in such litigation, nor shall the litigation be dismissed, without proof of notification to the state of Louisiana as set forth in this Subsection.

      ."We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Plaintiffs allege in their petition that Defendants "permitted or participated in the release of hazardous and toxic substances in their garde in a manner violative of their obligations under the law.”

      . In 1997, the Louisiana legislature enacted Act 839, which substantially amended the law pertaining to Louisiana class action procedure. This legislation completely rewrote the class action provisions to track the language of Federal Rule of Procedure 23 almost verbatim. However, according to the editor’s notes following Article 591 of the Louisiana Code of Civil Procedure, these modifications "appear to incorporate much of the jurisprudence, as set forth in McCastle v. Rollins....” Singleton v. Northfield Ins. Co., 2001-0447, p. 8 (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 61.

      . We note that Defendants raised exceptions early in this litigation; at this time, these exceptions have not yet been heard or resolved.

      . Dow also argues the potential for vinyl chloride contamination from non-named local sources, such as gas stations.

      . "All persons and entities who presently own, or owned at any time after January 1, 1990, land in the following area: Section 9 through 15, 46 through 57, and 83 through 87, all in Township 9 South, Range 12 East, Iberville Parish, Louisiana. Excluded from this definition are: (1) the defendants (and their officers, directors, and employees), and any entity in which the defendants have a controlling interest; and (2) any governmental entity, subdivision, agency or department.”

      . As noted above, the legislature enacted Louisiana Revised Statutes 30:2015.1 in 2003. See supra note 3 for text.

      . Turner v. Murphy Oil, U.S.A., Inc., 234 F.R.D. 597 (E.D.La. 1/30/06); Thibeaux v. Chevron Corp., No. 05-1545, slip op. at 2 (W.D.La., 12/8/05), available at 2005 WL 3359177; Brownell Land Corp., L.L.C. v. Apache Corp., No. 05-322, slip op. at 5 (E.D.La. 10/13/05), available at 2005 WL 3543772; Minvielle v. IMC Global Operations, Inc., 380 F.Supp.2d 755, 761 (W.D.La.10/19/04); Simoneaux v. Amoco Prod. Co., 2002-CA-1050 (La.App. 1 Cir. 9/26/03), 860 So.2d 560, 575.

      . It is our understanding that Defendant Murphy Oil has appealed the class certification ruling to the Fifth Circuit Court of Appeals. Turner v. Murphy Oil, U.S.A., Inc., No. 05-4206, slip op. at 4 (E.D.La.2/6/06), available at 2006 WL 286009.

      . See supra note 3 for text.

      . See supra note 1 and accompanying text.


source: Caselaw Access Project

author: DOWNING, J.

license: Public Domain

text:
    Laura GUILLOT, Individually & as Legal Representative for May Guillot v. LECC-BATON ROUGE INC., Louisiana Extended Care Centers, Inc., Landmark of Baton Rouge, L.L.P., & Does One Through Twenty.
    No. 2005 CA 2537.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.
    Jack W. Harang, Mobile, AL, Counsel for Plaintiff/Appellant Laura Guillot, individually & as legal representative for May Guillot.

      C. Blair Bright, New Orleans, Counsel for Defendants/Appellees LECC-Baton Rouge, Inc., Louisiana Extended Care Centers, Inc. & Landmark of Baton Rouge, LLP.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

1 pin this medical malpractice case the trial court sustained an exception of prescription filed by LECC-Baton Rouge Inc., Louisiana Extended Care Centers, Inc. (Landmark). The trial court then entered judgment dismissing the suit filed by Laura Guillot, individually and as legal representative of May Guillot (Guillot). Ms. Guillot appeals the judgment dismissing her suit. For the following reasons we reverse.

Louisiana Revised Statute 9:5628 provides that a claim for medical malpractice must be brought within one year of the alleged act or occurrence. La. R.S. 40:1299.47 provides that a claim filed with the Patients’ Compensation Fund (PCF) suspends the running of prescription.

Louisiana Revised Statute 40:1299.47(A)(2)(a) states in pertinent part:

The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, ... to the claimant or his attorney of the issuance of the opinion by the medical review panel....

The issue presented herein is when the plaintiff was effectively notified that the Medical Review Panel had rendered its opinion. Specifically, resolution of this issue depends on whether a UPS postal store employee was a putative mandatory authorized to accept service on behalf of Ms. Guillot.

The essential facts are as follows.’ On October 14, 2000, May Guillot became a long-term care resident of Landmark. On October 22, 2001, after suffering a fall, she was admitted to a rehabilitation facility. Ms. Guillot was officially discharged from Landmark on October 31, 2001. On September 27, 2002, Ms. Guillot’s attorney, Briana Rivera, who was licensed in both Louisiana and California, filed a malpractice claim against Landmark with |sthe PCF. Ms. Rivera used her California address when originally filing the claim but later associated with Jack W. Harang, an attorney in Louisiana. On January 27, 2004, several months before the panel decision was rendered, Mr. Harang sent a letter informing the PCF that he now represented Ms. Guillot. The letter also requested all correspondence to be mailed to him at his address in Mandeville, Louisiana.

On April 16, 2004, John Wellman, the PCF attorney, sent a certified letter informing all parties that the Medical Review Panel had rendered its decision. However, instead of mailing a copy of the decision to Mr. Harang’s address in Louisiana, the correspondence was only sent to Ms. Rivera in California.

In the meantime, due to medical reasons, Ms. Rivera closed her office in California and had her mail forwarded to a UPS post office box. On April 24, 2004 the PCF certified letter addressed to Ms. Rivera arrived at the UPS post office. However, instead of placing a notice in Ms. Rivera’s post office box that the post office had a certified parcel for her, the postal clerk signed for the certified parcel. On May 10, 2004, Ms. Rivera picked up the certified parcel and immediately forwarded the decision to Mr. Harang in Louisiana.

Mr. Harang did not file suit immediately. Instead, he calculated from May 10, 2004, the date he received notice of the decision, and determined that at least one hundred and seventeen days remained before the matter prescribed. On September 1, 2004 he filed suit against Landmark alleging that a bone scan performed on October 23, 2001 confirmed that Ms. Guil-lot sustained injuries during her stay at Landmark.

LLandmark, on the other hand, calculated that the prescription date began to run on April 24, 2004, the day the UPS representative signed for the certified letter. Consequently, Landmark filed an exception of prescription, claiming that the deadline for filing suit was August 26, 2004.

Landmark argues that when one co-counsel is given notice of the opinion being rendered that is enough to defeat a claim that service was not effective. We note that Landmark cites no authority that authorizes an individual not employed in the attorney’s office to accept the attorney’s certified mail. Nor does it cite any legislation or custom that would allow a UPS postal store employee to accept a customer’s certified mail. Instead however, citing Trusty v. Allstate Ins. Co., OS-289, (La.App. 5 Cir. 11/12/03), 861 So.2d 634, Landmark contends that this situation is no different than when an attorney attempts to defeat service by simply refusing to retrieve his mail.

Be that as it may, there is a threshold problem that halts our determination on the merits of this matter. Neither side introduced evidence at the hearing. Although both parties refer to various correspondence and proofs of service, there is absolutely no indication that any exhibits were ever introduced into the record. The hearing was not transcribed and the minutes do not reflect any documents being introduced.

At the trial of a peremptory exception, evidence may be introduced to support or controvert the defense of prescription, if its grounds do not appear from the petition. LSA-C.C.P. art. 931. Generally, in the absence of evidence, the objection of prescription must be decided based upon the facts alleged in the petition, which must be accepted as true. Kirby v. Field, 04-|1898,s p. 6, (La.App. 1 Cir. 9/23/05), 923 So.2d 131, 135. writ denied, 05-2467 (La.3/24/06), 925 So.2d 1230.

The law is clear: unless prescription is evident from the face of the pleadings the party raising the peremptory exception of prescription bears the burden of proof. King v. Phelps Dunbar, L.L.P., 98-1805, p. 9 (La.6/4/99), 743 So.2d 181, 188. Here, prescription is not evident on the face of the petition. Thus, Landmark had the burden of proving that the case had prescribed. Consequently, since Landmark has not shown by any evidence, preponderance or otherwise, that the UPS employee was authorized to accept service for Ms. Rivera’s correspondence or that prescription has run, the burden of proof has not been met.

After a careful review of the record, we conclude that under these specific facts, Landmark has not shown that either Ms. Rivera or Mr. Harang received notice by certified mail of the Medical Review decision. Accordingly, the trial court erred in sustaining the exception of prescription and the trial court judgment is reversed.

This memorandum opinion is issued in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1 B. All costs of this appeal are assessed against the defendant/appellee, LECC-Baton Rouge Inc., Louisiana Extended Care Centers, Inc., Landmark of Baton Rouge, L.L.P., et al.

REVERSED.

PETTIGREW and HUGHES, JJ., concur.

      . Defendants were incorrectly referred to in the petition as Landmark of Baton Rouge Nursing Home.

      . Ms. Rivera did not formally withdraw as counsel of record in this litigation.

      . Louisiana Civil Code article 1 provides that the sources of law are legislation and custom.

      . We do not decide whether actual receipt of notice vitiates the requirement that notice be by certified mail to re-commence the running of prescription as provided by La. R.S. 40:1299.47(A)(2)(a). This issue was not raised on appeal and is not before us today.


author: CARTER, C.J.

text:
    LIFE FLIGHT OF NEW ORLEANS v. Paul HOMRIGHAUSEN.
    No. 2005 CA 2538.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.
    Rehearing Denied Feb. 14, 2007.

      Collins Rossi, Covington, for Plaintiff/Appellant, Life Flight of New Orleans.
    Craig Robichaux, Mandeville, for Defendant/Appellee, Paul Homrighausen.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   CARTER, C.J.

| j>Life Flight of New Orleans, Inc. (“Life Flight”) appeals a judgment of the Office of Workers’ Compensation that dismissed its claim under LSA-R.S. 23:1208 and awarded its former employee, Paul Homri-ghausen, benefits, penalties and attorney’s fees and also appointed a vocational rehabilitation counselor.

FACTS AND PROCEDURAL HISTORY

Paul Homrighausen claimed to have injured his back in March 2000, during the course and scope of his employment with Life Flight of New Orleans, Inc. (“Life Flight”), a medical transportation company. Specifically, Homrighausen claimed that on March 4, 2000, while working with another employee to load an isolette into an ambulance, the weight of the isolette shifted and he felt a pulling sensation in his back. The sensation caused discomfort, but he continued to work. Then, on March 10, 2000, he again injured his back while loading an isolette into an ambulance. Homrighausen sought medical attention the following day and did not return to work thereafter.

Life Flight’s claims administrator investigated the claim and began paying workers’ compensation benefits in the form of temporary total disability benefits (“TTDs”). After further investigation and testing, Homrighausen’s benefits were converted from TTDs to Supplemental Earnings Benefits (“SEBs”). Then, in October 2003, upon the belief that Homrighausen had committed fraud, Homrighausen’s benefits were terminated.

|sIn December 2003, Life Flight filed a disputed claim for compensation seeking forfeiture of benefits pursuant to LSA-R.S. 23:1208. Homrighausen reconvened, contending that Life Flight is liable for indemnity benefits and medical expenses, as well as for costs, penalties and attorney’s fees for arbitrary and capricious termination of benefits and failure to provide vocation and rehabilitation training.

After a hearing, the workers’ compensation judge (“WCJ”) summarily dismissed Life Flight’s 1208 claim. The WCJ took the remainder of the issues under advisement, then, after further consideration, issued a judgment awarding Homrighausen SEBs from November 2003 through June 2004 at a monthly rate of $1,651.20, and thereafter, pending further orders of the court, at a rate of $7.62 per hour. The WCJ awarded Homrighausen $7,500.00 in attorney’s fees for Life Flight’s arbitrary termination of benefits. The WCJ penalized Life Flight $2,000.00 for premature termination of vocational rehabilitation services and $2,000.00 for wrongful termination of medical benefits. Finally, the WCJ appointed a counselor to provide vocational rehabilitation services and ordered that Life Flight pay for Homrighausen’s reasonable and necessary medical care. Life Flight has suspensively appealed.

DISCUSSION

Life Flight’s 1208 Claim

Louisiana Revised Statute 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
|4E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The statute applies in all circumstances where: (1) there is a false statement or representation; (2) the statement or representation is willfully made; and (3) the statement or representation is made for the purpose of obtaining workers’ compensation benefits. Angelo Iafrate Construction Co. v. Herring, 05-1461 (La.App. 1 Cir. 9/1/06), 943 So.2d 487, 490. The issue of whether an employee forfeited his workers’ compensation benefits is one of fact, which is not to be reversed on appeal absent manifest error. Slidell Memorial Hospital v. Mull, 04-1309, 04-1310 (La. App. 1 Cir. 6/10/05), 916 So.2d 243, 245.

At the conclusion of the hearing, the WCJ stated:

In sum, credibility can be tarnished, it can be questioned, and it can be done so successfully. But for it to be impugned to the degree arising to the level of 1208, which is a much higher standard, simply was not done today. That standard [has] not been met. And, therefore, I dismiss the 1208 claim.

On appeal, Life Flight argues that these comments by the WCJ indicate he held them to a higher evidentiary standard that is not supported by the jurisprudence. We disagree.

Statutory forfeiture of workers’ compensation benefits is a harsh remedy and as such must be strictly construed. Chapman v. JD’s Trucking Co., Inc., 01-1568 (La.App. 1 Cir. 7/24/02), 835 So.2d 480, 483. The burden of proof requires more than a mere showing of inconsistent statements or inadvertent omissions by the claimant. Slidell Memorial Hospital, 916 So.2d at 245. After proving a false representation, an employer seeking 1208 forfeiture must prove that the false representation was made willfully and that it was for the purpose of obtaining or defeating [fiany benefit or payment. Revere v. Dolgencorp, Inc., 04-1758 (La.App. 1 Cir. 9/23/05), 923 So.2d 101, 106. The willful misconduct justifying forfeiture consists of more than just a credibility call. Reynolds Industrial Contractors v. Fox, 41,051 (La.App. 2 Cir. 6/28/06), 935 So.2d 783, 790. When considered in context, we find no error in the WCJ’s statements regarding the employer’s burden of proof on the issue.

Additionally, with regard to the 1208 claim, Life Flight contends the WCJ erred in failing to review the surveillance footage that it offered and was accepted into evidence. During the hearing, various witnesses testified about the surveillance footage and what the footage showed. The special investigator for Life Flight’s claims administrator, who made the ultimate decision to terminate Homrighau-sen’s benefits, testified that he would have terminated benefits without the surveillance footage, but believed the footage bolstered their case. In dismissing the 1208 claim, the WCJ stated that, like the special investigator, he did not feel the tapes were relevant enough for him to review before ruling. On appeal, Life Flight contends that by refusing to review all of the evidence it submitted, the WCJ violated his duty to review the entirety of the evidence before him.

The WCJ has great discretion to assign whatever weight he deems appropriate to evidence that has been admitted. Louisiana Workers’ Compensation Corporation v. Gray, 34,731 (La.App. 2 Cir. 5/9/01), 786 So.2d 310, 314. In this case, the WCJ assigned no weight to the tapes, but did so before reviewing them. We agree that this was erroneous. The WCJ should have reviewed and considered the tapes. Compare Louisiana Workers’ Compensation Corporation, 786 So.2d at 314. However, both Homrighausen and witnesses for Life Flight discussed the contents of the ^surveillance footage during the hearing. We have reviewed the footage and find that the witnesses’ testimony accurately depicts the relevant portions thereof. Thus, while we find that the WCJ erred in refusing to consider the footage, the error was harmless, and did not interdict the WCJ’s factual findings, which are reasonably supported by the record.

After reviewing all of the evidence herein, we agree with the WCJ that Life Flight did not prove a 1208 violation. The evidence submitted does not show that Homrighausen willfully made a false representation for the purpose of obtaining workers’ compensation benefits.

Reinstatement of Benefits

An employee is entitled to receive SEBs if he sustains a work-related injury that results in the inability to earn ninety percent or more of his pre-injury wage. LSA-R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Magee v. Abek, Inc., 04-2554 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 807.

At the outset, Life Flight complains that the pleading Homrighausen filed, by which he requests reinstatement of benefits, is fatally deficient under LSA-R.S. 23:1311 because it does not indicate a date of the accident. However, in this case, Life Flight initiated the compensation proceedings. On its 1008 form, Life Flight lists the date of injury -as March 4, 2000. Homrighausen admitted that allegation in his answer and reconventional demand. Further, Louisiana workers’ compensation law is to be liberally |7construed in favor of coverage. Foy-Watson v. General Motors Corporation, 37,106 (La.App. 2 Cir. 5/14/03), 847 So.2d 85, 92. Thus, we find no error in the WCJ’s rejection of Life Flight’s argument regarding the formal pleading requirements.

A worker’s testimony alone may be sufficient to discharge the burden of proving a work-related injury that caused disability, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Barring circumstances that cast suspicion on the reliability of the worker’s uncontradicted testimony, the fact finder should accept the testimony as true when determining whether the worker has discharged his burden. If the evidence leaves the probabilities of causation equally balanced, the worker has failed to carry his or her burden of proof. Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Magee, 934 So.2d at 807.

After reviewing all of the testimony adduced at trial, we cannot say the WCJ was manifestly erroneous in concluding that Homrighausen met his burden of proof. The two Life Flight employees who testified at trial stated they simply did not know if Homrighausen was injured as he claims. Their testimony does not rise to a level that would cast suspicion on Homri-ghausen’s testimony. Moreover, the testimony of Homrighausen’s wife and the medical evidence corroborate Homrighau-sen’s claims.

|sLife Flight does not contest the WCJ’s finding that Homrighausen cannot now earn ninety percent or more of his pre-injury wage. Accordingly, we affirm that portion of the judgment awarding SEBs.

Penalties and Attorney’s Fees

The WCJ awarded Homrighausen $7,5000.00 in attorney’s fees after finding that Life Flight arbitrarily terminated his benefits in October of 2003. Life Flight contends its continuing investigation of Homrighausen’s claim yielded sufficient facts to justify terminating compensation benefits.

Louisiana Revised Statute 23:1201(1) provides, in pertinent part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

It is undisputed that Life Flight discontinued payment of SEBs. We have determined that the WCJ was correct in concluding that Homrighausen was entitled to receive SEBs. However, attorney’s fees are only awarded when the discontinuance of payments is arbitrary and capricious. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstance presented, or of seemingly unfounded motivation. The crucial inquiry is whether the employer has articulable and objective reason for discontinuing benefits at the time it took that action. Authement v. Wal-Mart, 02-2434 (La.App. 1 Cir. 9/26/03), 857 So.2d 564, 574. The WCJ’s determination of whether an employer or insurer should be cast with attorney fees in a workers’ | ¡¡compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Frith v. Riverwood, Inc., 04-1086 (La.1/19/05), 892 So.2d 7, 15.

In this case, Life Flight’s claims administrator discontinued benefits based on what it interpreted to be fraud by Homri-ghausen. The claims administrator’s special investigator testified that the decision to terminate benefits was made after learning that Homrighausen was attending classes at Delgado, when he had not informed them he was doing so. Homri-ghausen explained that Life Flight knew he was attending Delgado noting it was shown on the surveillance footage; however, no representative of the claims administrator asked him about it.

Statutes providing for penalties and attorney’s fees are penal in nature and must be strictly construed. Adams v. Burger King, 04-0146 (La.App. 1 Cir. 2/11/05), 906 So.2d 540, 544. In this case, even considering the confusion surrounding Homrighausen’s ability to attend school, we cannot say that the WCJ was manifestly erroneous in finding no reasonable basis for Life Flight’s discontinuance of his benefits. Thus, the imposition of $7,500.00 attorney’s fees is affirmed.

The WCJ additionally penalized Life Flight $2,000.00 for termination of medical benefits and $2,000.00 for termination of vocational rehabilitation services. Life Flight contends these awards are erroneous because the record contains no evidence that Homrighausen requested either medical treatment that was denied or vocational rehabilitation services that were refused. Nonetheless, the record does clearly reflect that Life Flight terminated all workers’ compensation benefits in October of 2003. Moreover, we have found no manifest error in the WCJ’s conclusion that linthe termination was arbitrary and capricious. Accordingly, we find no error in these awards and they are affirmed.

Appointment of Vocational Rehabilitation Counselor

Life Flight complains on appeal that the WCJ erred in appointing Cornelius Gor-man as Homrighausen’s vocational rehabilitation counselor. Life Flight concedes the WCJ’s authority to make such an appointment, but complains that Gorman’s name was not mentioned until Homrighausen filed his post-trial brief, which precluded them from contesting his appointment. We find no merit in this argument and find no manifest error in the appointment.

Answer to Appeal

Homrighausen has answered Life Flight’s appeal and requests that this court increase the WCJ’s award of penalties and attorney’s fees due to his counsel incurring additional fees and expenses related to the appeal. A workers’ compensation claimant is entitled to an increase in attorney’s fees to reflect additional time incurred in defending the employer’s unsuccessful appeal. Frith, 892 So.2d at 15. Therefore, we award $1,500.00 in additional attorney’s fees for work done on appeal.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. We render judgment ordering Life Flight of New Orleans, Inc., to pay Paul Homrighausen an additional $1,500.00, which represents attorney’s fees expended on appeal. Costs of this appeal are assessed to Life Flight of New Orleans, Inc.

RENDERED AND AFFIRMED.

McDONALD, J., agrees in part and dissents in part.

McDONALD, J., agreeing in part and dissenting in part.

|,I agree with the majority except as to affirming the award of $2,000 penalty for termination of medical benefits and a $2,000 penalty for termination of vocational rehabilitation.

      . The testimony at trial established that an isolette is a self-contained device that weighs between two and three hundred pounds, used for transporting infants in a temperature and atmosphere controlled environment.

      . Louisiana Revised Statute 23:1311 applies to petitions initiating claims for compensation and requires that a petition contain, "[a] statement of the time, place, nature, and cause of the injury, or such fairly equivalent information as will put the employer on notice with respect to the identity of the parties.”

      . The law in effect at the time of the violation is the law applicable to the issue of penalties and attorney’s fees. Broussard v. Lafayette Parish School Board, 05-575 (La.App. 3 Cir. 4/5/06), 926 So.2d 713, 722, writ denied, 06-1044 (La.6/23/06), 930 So.2d 983.


author: PARRO, J. .

text:
    STATE of Louisiana v. Joyce Marie HANDON.
    No. 2006 KA 0131.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Joseph L. Waitz, Jr., District Attorney, Ellen D. Doskey, Assistant District Attorney, Houma, for State of Louisiana.
    Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, for Defendant-Appellant Joyce Marie Handon.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J. .

LThe defendant, Joyce Marie Handon, was charged by bill of information with one count of aggravated battery, a violation of LSA-R.S. 14:34, and pled not guilty. Following a jury trial, she was found guilty as charged. She moved for a new trial and for a post-verdict judgment of acquittal, but the motions were denied. She was sentenced to six years of imprisonment at hard labor, to run concurrently with any other sentence she might be required to serve for any previous conviction. She moved for reconsideration of sentence, but the motion was denied. She now appeals, designating two assignments of error. We affirm the conviction and sentence.

FACTS

On November 19, 2004, at approximately 2:15 a.m., the victim, Pamela Rogers, was seated at a table with Cheryl Klingman, Rita Duplantis, and David Authement at The Pit Stop restaurant in Houma. Kling-man was the bartender and manager of Kathy Shaw’s Lounge, and the group had been at that lounge together before going to The Pit Stop.

The defendant was also seated at a table at The Pit Stop. According to the victim, after ordering their food, she and her group sat at their table talking. The defendant approached the table and spoke to Duplantis. Thereafter, Duplantis began having a conversation with Klingman, and Klingman recognized the defendant as someone with whom she had had a previous problem. The defendant started shouting at Klingman, and Klingman stood up and told her she did not want to fight her, and she was not worth fighting and going to jail for. The defendant then returned to her table.

Thereafter, the defendant screamed and cursed Klingman from across the restaurant. Subsequently, the defendant again approached the victim and her group’s table, cursing at Klingman, and grabbing a five-ounce bottle of Tabasco sauce as she approached. The victim stood up and grabbed the defendant’s arm to block her from reaching the table. The defendant struck the victim in the face with the Tabasco bottle. The bottle shattered on the victim’s right eye, sliced her face in two different places, Ubroke one of her teeth, blackened her right eye, almost closed her left eye due to irritation from the Tabasco sauce, and numbed her lip due to nerve damage. The wounds required approximately 28 to 30 stitches to close. Following the incident, the defendant had to be restrained by Authement and Jason Guidry, a man with whom the defendant had been sitting. The defendant continued to shout vulgarities across the restaurant.

The defense presented testimony that the defendant had a “knot” on her head and bruises on her legs following the incident. The defense also presented testimony from Guidry. According to Guidry, he and the defendant had been together at Kathy Shaw’s Lounge prior to November 19, 2004. While he was in the bathroom, a man apologized to him for grabbing the defendant under her skirt. Thereafter, Duplantis or Klingman followed Guidry and the defendant around the lounge, staring at them.

Furthermore, according to Guidry, on November 19, 2004, someone from the victim’s table called the defendant over to the table in a friendly manner. Thereafter, chairs began flying backwards, and people began standing up and shouting at the victim’s table. The defendant fell backwards after being pushed or hit. Guidry claimed the defendant hit the victim with the Tabasco bottle on the back of her head.

BATSON

In assignment of error number one, the defendant argues the trial court erred in denying the Batson challenges to the state’s use of peremptory challenges to strike prospective jurors, Ethyl Swan, Charles Phillips, and Natalie K. Antoine.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court adopted the following three-step analysis to determine whether or not the constitutional rights of a defendant or prospective jurors had been infringed by impermissible discriminatory practices. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving [ ¿purposeful discrimination. State v. Rodriguez, 01-2182 (La. App. 1st Cir.6/21/02), 822 So.2d 121, 127, writ denied, 02-2049 (La.2/14/03), 836 So.2d 131.

Louisiana Code of Criminal Procedure article 795, in pertinent part, provides:

C. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror. [Footnote added.]
D. The court shall allow to stand each peremptory challenge exercised for a racially neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror.
E. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

The ultimate burden of persuasion remains on the party raising the challenge to prove purposeful discrimination. Johnson v. California, 545 U.S. 162, 170-71, 125 S.Ct. 2410, 2417, 162 L.Ed.2d 129 (2005); State v. Elie, 05-1569 (La.7/10/06), 936 So.2d 791, 796. A defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. Johnson, 545 U.S. at 170, 125 S.Ct. at 2417; Elie, 936 So.2d at 796.

In order to make a prima facie showing that the prosecutor has exercised peremptory challenges on an impermissible basis, the defendant may offer any facts | ¿relevant to the question of the prosecutor’s discriminatory intent. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor during voir dire which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim -of purposeful discrimination. Rodriguez, 822 So.2d at 128.

No formula exists for determining whether the defense has established a pri-ma facie case of purposeful racial discrimination. A trial judge may take into account not only whether a pattern of strikes against African-American venire-persons has emerged during voir dire but also whether the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. Rodriguez, 822 So.2d at 128.

For a Batson challenge to succeed, it is not enough that a racially discriminatory result be evidenced; rather, that result must ultimately be traced to a racially discriminatory purpose. Thus, the sole focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. Rodriguez, 822 So.2d at 128.

If the defendant is unable to make out a prima facie case of racial discrimination, then the Batson challenge fails and it is not necessary for the prosecutor to articulate “race-neutral” reasons for his strikes. State v. Allen, 03-2418 (La.6/29/05), 913 So.2d 788, 798, cert. denied, - U.S. -, 126 S.Ct. 2023, 164 L.Ed.2d 787 (2006).

The state, in presenting race-neutral reasons for its excusal of prospective jurors, need not present an explanation that is persuasive, or even plausible; unless a discriminatory intent is inherent in the state’s explanation after review of the entire record, the reason offered will be deemed race neutral. A reviewing court owes the trial court’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Elie, 936 So.2d at 801.

bln the instant case, the defense first raised a Batson objection following the state’s peremptory challenge to the first prospective alternate juror, Natalie Antoine. Defense counsel alleged that Antoine was the third minority person on the two panels and that the state had raised peremptory challenges to all three prospective jurors. The court asked the state to set forth a racially neutral reason for its challenge against Antoine. The state indicated Antoine was related to Michael Nixon, who was facing charges for the same type of crime at issue in this case. Further, the state set forth that Antoine was friends with the brother of Tige Wesley, who was facing trial for murder. Additionally, the state argued there had been no proof that Antoine was a minority or that any member of the first panel on whom peremptory challenges were exercised by the state was a minority individual. The defense conceded it had not questioned the prospective jurors concerning their race, but argued the court could take judicial notice that Ethel Swan, Charles Phillips, and Antoine were challenged peremptorily by the state and were minorities. The defense also objected to the removal of Phillips and Swan. The court noted the defense objection, but stated the members of the first panel of prospective jurors (including Swan and Phillips) had left the courthouse. The court accepted the state’s explanation for its peremptory challenge against Antoine “regardless of what her race might be[,]” and found the explanation racially neutral. The defense objected to the court’s ruling.

There was no abuse of discretion in the denial of the Batson challenges against prospective jurors Swan and Antoine. In regard to the challenge against the state’s use of a peremptory challenge against prospective juror Swan, the defense failed to make a prima facie showing that the prosecutor had exercised the peremptory challenge on the basis of race. The defense failed to produce evidence sufficient to permit the trial judge to draw an inference that discrimination had occurred. The defense did not even establish the race of Swan.

In regard to the Batson challenge against the state’s use of a peremptory challenge against prospective juror Antoine, whether or not the defense established a prima facie case of discrimination is moot. The issue of whether the defense 17established a prima facie case of discrimination is moot once the prosecutor has offered a race-neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination. State v. Snyder, 981078 (La.9/6/06), 942 So.2d 484, 490 n. 9.

Nevertheless, a review of the state’s explanations for the peremptory challenge against prospective juror Antoine reveals no discriminatory intent. See Elie, 936 So.2d at 801. Further, the prosecutor’s demeanor was evaluated by the trial court which found no discriminatory intent. The explanations were reasonable and the proffered rationale had some basis in accepted trial strategy. See Snyder, 942 So.2d at 494. The state indicated Antoine was related to Michael Nixon, who was facing charges for the same type of crime at issue in this case. Also, the state set forth that Antoine was friends with the brother of Tige Wesley, who was facing trial for murder. Indeed, during voir dire, Antoine indicated her nephew, Michael Nixon, had been arrested for possession of crack cocaine and aggravated battery, and the aggravated battery charge was currently pending. Antoine claimed she would not hold Nixon’s arrests and his conviction for possession of cocaine against the state. Antoine also indicated she knew Tige Wesley, and Wesley’s brother was awaiting trial for murder. Antoine claimed that Wesley’s brother’s arrest would not give her a problem with law enforcement personnel called as witnesses.

Moreover, a review of the entire voir dire transcript fails to reveal any evidence that the use of peremptory strikes by the state in this matter was motivated by impermissible considerations.

This assignment of error is without merit.

MISTRIAL

In assignment of error number two, the defendant contends the trial court erred in denying the defendant’s motion for a mistrial. In particular, the defendant argues the state failed to fully and fairly comply with open-file discovery and its failure to timely disclose the issuance of subpoenas to Kelly Billiot and Adam Kelly misled the defense and constituted a legal defect in the proceedings, which makes the verdict reversible as a matter of law.

| ^Louisiana Code of Criminal Procedure article 729.5 prescribes sanctions for failure to honor a discovery right, leaving in the trial judge’s discretion the decision of whether to order a mistrial or enter any such other order as may be appropriate. As is pertinent here, LSA-C.Cr.P. art. 775 provides that a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. However, a mistrial is a drastic remedy which should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. Determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for a mistrial will not be disturbed on appeal without abuse of that discretion. State v. Berry, 95-1610 (La.App. 1st Cir.11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La.10/10/97), 703 So.2d 603.

Except as specifically provided by statute, a defendant in Louisiana is not entitled to statements by witnesses made to the district attorney or to agents of the state. LSA-C.Cr.P. art. 723. However, the defendant may not be denied exculpatory statements made by a witness other than the defendant, provided the statement is material and relevant to the issue of guilt or punishment. LSA-C.Cr.P. art. 718. Berry, 684 So.2d at 451-52.

A defendant generally does not have a right to the names and addresses of state witnesses. State v. Bennett, 591 So.2d 1193, 1197 (La.App. 1st Cir.1991), writ denied, 594 So.2d 1315 (La.1992). The discovery of the information is not prohibited, however, where there has been a determination that there exists peculiar and distinctive reasons why fundamental fairness dictates discovery. State v. Ondek, 584 So.2d 282, 294 (La.App. 1st Cir.), writ denied, 586 So.2d 539 (La.1991).

During opening argument, the state indicated it would present testimony from Billiot and Kelly. Thereafter, the defense moved for a mistrial, arguing neither Billi-ot nor Kelly had been mentioned in the state’s file provided to the defense and neither witness was mentioned on the subpoena list. The state responded it did not have a statement from either Billiot or Kelly and only learned of the witnesses approximately |aten days earlier. The state further indicated it had only spoken to one of the witnesses on the previous day and the other witness on that day. The state added, contrary to the assertion of the defense, the record did contain a request that subpoenas be issued to Billiot and Kelly. The state indicated neither Billiot nor Kelly had advised it of any exculpatory evidence. The court denied the motion for mistrial, holding that, unless the information was exculpatory, the state was not obligated, as a matter of constitutional law, to interview witnesses and then tell the defense what it had learned.

At the beginning of the next day of trial, the defense renewed its motion for a mistrial on the basis of non-disclosure of the statements of Billiot and Kelly. The trial court again denied the motion. The court indicated it had researched the issue and concluded the state had only a limited responsibility to provide discovery under the discovery articles of the Louisiana Code of Criminal Procedure and constitutional law and the state had not violated any duty owed to the defense under the constitution or the Code of Criminal Procedure.

There was no abuse of discretion in the trial court’s denial of the motion for mistrial. The defense failed to establish any peculiar or distinctive reason why fundamental fairness dictated discovery of the names of Billiot and Kelly. Further, the defense does not claim, nor does the record indicate, that the defense was denied exculpatory statements made by these witnesses.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

      . The discretion afforded to a trial court by LSA-C.Cr.P. art. 795(C) to overrule a Batson objection, following the making of a prima facie case supporting the objection, without requiring the state to set forth its reasons for a challenged peremptory strike may be at odds with Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 2332, 162 L.Ed.2d 196 (2005). State v. Snyder, 98-1078 (La.9/6/06), 942 So.2d 484, 490 n. 9, 2006 WL 2549003.

      . The state indicated defense counsel had not conducted open file discovery since shortly before the defendant’s arraignment. The defense did not deny the state's claim, but argued the state had advised it that, if anything new was added to the file, the defense would either be provided with the item or advised of its addition to the file.