author: SAUNDERS, Judge. AMY, J.,

text:
    Delton Ray COUTEE v. Rayland K. BEURLOT.
    No. CA 2006-569.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 2006.

      Eugene Joseph Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellant, Rayland K. Beur-lot.
    Eugene A. Ledet Jr., Rivers, Beck, Dal-rymple & Ledet, Alexandria, LA, for Plaintiff/Appellee, Delton Ray Coutee.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

liThe plaintiff filed suit against his former treating physician for breach of physician-patient privilege, intentional infliction of emotional distress, and invasion of privacy. The patient brought his action against his physician because his physician allegedly disclosed private, confidential information to the patient’s adversary at an ex parte meeting held to discuss the physician’s testimony in the patient’s upcoming maritime trial.

The physician, having already been deposed by both parties in the maritime action, admitted to attending the ex parte meeting at which the patient’s work status was discussed relative to new records given to the physician by the attorney for patient’s adversary.

The trial court found that the physician had breached the physician-patient privilege and awarded the patient twenty thousand dollars for emotional distress. The physician appealed this finding arguing that the patient had waived the physician-patient privilege, that the patient had failed to prove the necessary elements of intentional infliction of emotional distress or invasion of privacy and that the patient had failed to show any damage or injury resulted from the physician’s actions.

We affirm and amend the award to ten thousand dollars.

FACTS AND PROCEDURAL HISTORY

On January 5, 2001, Delton Ray Coutee (“Coutee”), a roughneck working offshore for Global Marine Drilling Company (“Global”), allegedly slipped and fell and sustained injuries. Coutee subsequently filed a maritime action against Global under the Jones Act in state court.

While getting treatment for his alleged injuries, Coutee was referred to Dr. Ray-land K. Beurlot (“Dr. Beurlot”). Dr. Beurlot saw Coutee one time for the purposes |aof performing a physical medicine consultation.

On June 19, 2003, the oral deposition of Dr. Beurlot was taken pursuant to notice, with a court reporter present. Dr. Beurlot was questioned by both the attorneys for Coutee and Global concerning his examination, findings, diagnoses and opinion of Coutee. Dr. Beurlot’s opinion was that Coutee could perform a medium duty level of work.

Following Dr. Beurlot’s deposition, counsel for Global arranged an ex parte meeting with Dr. Beurlot in order to discuss Dr. Beurlot’s testimony for the upcoming maritime trial. During this meeting, Dr. Beurlot was given other records pertaining to Coutee. At the maritime trial, Dr. Beurlot testified that he had participated in an ex parte meeting with Global’s counsel, that he had received records pertaining to Coutee from Global’s counsel and that his opinion regarding Coutee’s work status had changed to reflect that he felt Coutee could perform heavy manual labor.

Subsequent to losing his lawsuit against Global, Coutee filed suit against Dr. Beur-lot. Coutee alleged that Dr. Beurlot, by participating in ex parte communications with Global, had (1) breached the physician-patient privilege; (2) intentionally inflicted emotional distress upon him; and (3) invaded his privacy.

After a bench trial on the merits of Coutee’s claims against Dr. Beurlot, the trial court found that Dr. Beurlot had breached the physician-patient privilege and that Coutee had shown that he was entitled to damages in the amount of twenty thousand dollars from Dr. Beurlot for emotional distress. Dr. Beurlot appealed this ruling.

We affirm in part and amend in part.

ASSIGNMENTS OF ERROR:

1. Was the trial court manifestly erroneous or clearly wrong in finding that Dr. Beurlot disclosed confidential medical information and/or breached the physician-patient privilege?
|s2. Did the trial court create a cause of action for the plaintiff without a statutory or jurisprudential basis and without proof of the essential elements to support a cause of action for invasion of privacy or intentional infliction of emotional distress?
3. Was the trial court clearly wrong in finding that plaintiff suffered injury or damage?

ASSIGNMENT OF ERROR # 1:

Dr. Beurlot contends that the trial committed legal error in finding that Dr. Beurlot disclosed confidential medical information and/or breached the physician-patient privilege. We disagree.

A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

The applicable codal articles are as follows:

Louisiana Revised Statutes 13:8731

Privileged communication between health care provider and patient

As used in this Part.

[A](1) “Health care provider” means a hospital, as defined in Paragraph (3) hereof, and means a person, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital ... or agent thereof acting in the course and scope of his employment.
|4(2) “Patient” means a natural person who receives health care from a licensed health care provider.
(5) “Communication” means the acquiring, recording or transmittal, of any information, in any manner whatsoever, concerning any facts, opinions or statements necessary to enable the health care provider to diagnose, treat, prescribe or to act for the patients; said communications may include, but are not limited to any and all medical records, office records, hospital records, charts, correspondence, memoranda, laboratory tests, and results, x-rays, photographs, financial statements, diagnoses and prognoses.
(B) In noncriminal proceedings, testimonial privileges, exceptions, and waiver with respect to communications between a health care provider and his patient are governed by the Louisiana Code of Evidence.
(C) An action or proceeding described in Louisiana Evidence Code Article 510(B)(2) which constitutes an exception for a health care provider to testify at a trial on the merits also shall be an exception for purposes of any discovery method authorized by Article 1421 et seq. of the Louisiana Code of Civil Procedure.

Louisiana Code of Evidence Article 502

Waiver of privilege

(A) Waiver. A person upon whom the law confers a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.
[Comment] (e) As to waiver by taking the deposition of or requesting and obtaining the examining physician’s report, see C.C.P. Art. 1465.

Louisiana Code of Evidence Article 510(A)

Health care provider-patient privilege

A. Definitions.

As used in this article:

(1) “Patient” is a person who consults or is examined or interviewed by another for the purpose of receiving advice, diagnosis, or treatment in regard to that person’s health.
(2) “Health care provider” is a person or entity defined as such in R.S. 13:3734(A)(1), and includes a physician and psychotherapist | Ras defined below
(3) “Physician” is a person licensed to practice medicine in any state or nation.
(8) (a) “Confidential communication” is the transmittal or acquisition of information not intended to be disclosed to persons other than:
(i) A health care provider and a representative of a health care provider.
(iv) A patient’s health care insurer, including any entity that provides indemnification to a patient.
(b) “Confidential communication” includes any information, substance, or tangible object, obtained incidental to the communication process and any opinion formed as a result of the consultation, examination, or interview and also includes medical and hospital records made by health care providers and their representatives.
(Emphasis and underscore added)
[Comment] (h) The phrase “health care insurer” in Paragraph (A)(8)(a)(iv) is broader than entities denominated as insurance companies, and, as this Paragraph expressly states, includes any entity that provides indemnification to patients, hence including self-insurers and government plans, etc.

Louisiana Code of Evidence Article 510(B)

(1) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.
(Emphasis and underscore added)
(2) Exceptions.
(a) When the communication relates to the health condition of a patient who brings or asserts a personal injury claim in a judicial or worker’s compensation proceeding.

Louisiana Code of Evidence Article 510(E)

In Waiver. The exceptions to the privilege set forth in Paragraph B(2) shall constitute a waiver of the privilege only as to testimony at trial or to discovery of the privileged communication by one of the discovery methods authorized by Code of Civil Procedure Article U21 et seq., or pursuant to R.S. 40:1299.96 or R.S. 13:3715.1.
(Emphasis and underscore added)

Louisiana Code of Civil Procedure Article im

Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; request for release of medical records; and requests for admission. Unless the court orders otherwise under Article 1426, the frequency of use of these methods is not limited.

Louisiana Code of Civil Procedure Article U65(B)

By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.

(Emphasis and underscore added)

The record indicates that Dr. Beurlot engaged in unauthorized, ex parte communications with Global in preparation for the upcoming maritime trial between Coutee and Global. This court must decide whether information disclosed by Dr. Beurlot to Global violated the privilege between Dr. Beurlot and Coutee. This issue is one of utmost importance. There exists a confidential, personal and professional relationship between physician and patient and as such, there is a strong public policy in favor of protecting those communications made by a patient to his or her treating physician. To undermine the confidence between physician and patient is not something this court is inclined to do lightly.

Coutee maintains that the proper statute that created his cause of action is La. R.S. 13:1374. Under La.R.S. 13:1374(A), Dr. Beurlot is a “health care provider” and j 7Coutee is a “patient” and they engaged in a “communication” as defined by the statute. Part (B) of La.R.S. 13:1374 then mandates that we look to the Louisiana Code of Evidence to govern the issue at bar dealing with privileges regarding communications between health care provider and patient.

Louisiana Code of Evidence Article 510(B) establishes the general rule regarding privilege between health care provider and/or physician and patient as to confidential communications in noncriminal proceedings. Dr. Beurlot is included in the definition of “health care provider,” as well as the definition of “physician.” Further, Coutee is a “patient” as defined in the article. As such, any “confidential communication” between Dr. Beurlot and Coutee is subject to the physician-patient privilege under part (B) of La.Code Evid. art. 510.

Dr. Beurlot contends that any information he disclosed to Global during the ex parte meeting was not a “confidential communication” as defined by La.Code Evid. art. 510(A)(8)(a)(iv) because it was he that received information from Global, not Global that received information from him. Dr. Beurlot’s testimony as to what was communicated at the ex parte meeting has been consistent. He testified that the communications between he and Global at the ex parte meeting were regarding the work status of Coutee. He also testified that Global gave him Coutee’s employment records from a job Coutee recently had been performing with a different employer. The employment records indicated that Coutee had been performing a job that required a different work status from that Dr. Beurlot opined Coutee could perform. After this meeting, Dr. Beurlot changed his opinion regarding Coutee’s work status and testified at the maritime trial that if Coutee was performing a job with a certain work status without any complaints of pain, then he saw no reason why Coutee could |snot continue to work at a job with that same work status.

We find that a physician’s opinion about the work status of his patient is a “confidential communication” as defined by La.Code Evid. art. 510(A)(8)(b). Dr. Beur-lot formed his opinion about his patient’s work not only from the records he received during his unauthorized ex parte meeting with Global, but also with information he obtained from his consultation with his patient. Therefore, we find that a physician discussing his patient’s work status is a “confidential communication” as defined by the statute and was subject to the physician-patient privilege.

Dr. Beurlot also argues that any information communicated to Global was not a “confidential communication” because Global was Coutee’s health care insurer. Dr. Beurlot’s argument is based on La. Code Evid. art. 510(A)(8)(a)(iv). Louisiana Code of Evidence Article 510(A)(8)(a)(iv) removes information given to a health care insurer, including any entity that indemnifies a patient, from being classified as a “confidential communication.” The record indicates that Global indemnified Coutee for Dr. Beurlot’s services. As such, Dr. Beurlot contends that any communication relevant to Coutee’s claim against Global was not a “confidential communication” as defined by the article. Therefore, any information disclosed to Global that was relevant to Coutee’s claim against Global is not subject to the physician-patient privilege.

Louisiana Civil Code Article 9 requires that when interpreting language of a statute, it cannot lead to absurd consequences. Further, courts should not interpret statutes that makes a part of the statute meaningless and superfluous. In re Succession of Boyter, 99-0761 (La.1/7/00), 756 So.2d 1122; First Nat'l Bank of Boston v. Beckwith Mach. Co., 94-2065 (La.2/20/95), 650 So.2d 1148; Matter of Am. Waste and Pollution Control Co., 93-3163 (La.9/15/94), 642 So.2d 1258; CHF Finance Co., Inc. v. Jochum, 241 La. 155, 127 So.2d 534 (1961).

If this court were to interpret La. Code Evid. art. 510(A)(8)(a)(iv) as Dr. Beurlot suggests, then there would be no need for La.Code Evid. art. 510(B)(2)(a), nor La.Code Evid. art. 510(E). Further, La.Code Evid. art. 510(A)(8)(a)(iv) refers to patient information relative to payment of bills by a health care insurer. The purpose of La.Code Evid. art. 510(A)(8)(a)(iv) is to help facilitate payment from a health care insurer to a health care provider for services rendered. What the patient’s health care issues are, when referenced by codes, is privileged information, and therefore need to be excluded as “confidential communications” so that a patient’s bills can be paid by a health care insurer in a timely manner. Therefore, we find that this argument put forth by Dr. Beurlot has no merit.

The provisions applicable to the case at bar are La.Code Evid. art. 510(B)(2)(a), La.Code Evid. art. 510(E) and La.Code Civ.P. art. 1421. Under La.Code Evid. art. 510(B)(2)(a), any person that brings a personal injury action in a judicial proceeding waives the physician-patient privilege. This waiver is limited by La.Code Evid. art. 510(E) only for trial testimony or under delineated discovery methods under La.Code Civ.P. art. 1421 et seq., La. R.S. 40:1299.96 or La.R.S. 13:3715.1.

Louisiana Revised Statutes 40:1299.96 and La.R.S. 13:3715.1 deal with medical records, whereas here, we are dealing with oral communications. Therefore, any waiver under La.Code Evid. art. 510(B)(2)(a) that could apply to the oral disclosure by Dr. Beurlot would have to fit under the discovery methods of La.Code Civ.P. art. 1421. When we look to La. Code Civ.P. art. 1421, we, of course, do not see ex parte communications as one of the regular discovery procedures listed. This | ^statutory scheme is evidenced by La. R.S. 13:3734(C) that references the relationship between La. Code Evid. art. 510(B)(2) and La.Code Evid. art. 510(E) by allowing a health care provider to answer discovery propounded under La.Code Civ.P. art. 1421. Therefore, we find that Coutee did not waive the privileged status of his medical information that would allow his treating physician to speak freely during an ex parte meeting with an opponent in a judicial proceeding.

Next Dr. Beurlot points to La.Code Evid. art. 502(A) to argue that Coutee waived any privilege on information regarding his health care in relation to his work status by allowing the doctor to give his deposition. Under La.Code Evid. art. 502(A) a person that has a privilege, while holder of that privilege, waives that privilege if he consents to a significant part of the privileged information to be disclosed.

What Dr. Beurlot failed to note about La.Code Evid. art. 502(A) is comment (e) under that article. Comment (e) of 502(A) refers to La.Code Civ.P. art. 1465 when dealing with waiver of privilege via a taking of a deposition. Louisiana Code of Civil Procedure article 1465 says that a patient waives any privilege he or she can assert about health conditions when one of his or her examiners is allowed to testify regarding the same mental or physical condition. Under La.Code of Civ. P. art. 1465, Coutee did waive his right to keep Dr. Beurlot from testifying, but he did not waive his right to keep Dr. Beurlot from participating in an unauthorized, ex parte meeting with his patient’s adversary and discuss his patient’s relevant condition. As such, this statute still does not allow Dr. Beurlot to breach his obligation to Coutee to uphold the physician-patient privilege. Therefore, we again find that this argument put forth by Dr. Beurlot has no merit.

It is clear from the record and from proper interpretation of the applicable statutes, that the trial court, in using its discretion to make a factual determination as Into whether Dr. Beurlot breached the physician-patient privilege, was not manifestly erroneous or clearly wrong. We find that the various arguments put forth by Dr. Beurlot to explain why he could breach the confidential, personal and professional relationship between he and his patient to be without any merit. Thus, the trial court’s finding that Dr. Beurlot breached the physician-patient privilege is affirmed.

ASSIGNMENT OF ERROR # 2:

Dr. Beurlot claims that the trial court erred in creating a cause of action for the Coutee without a statutory or jurisprudential basis and without proof of the essential elements to support a cause of action for intentional infliction of emotional distress or invasion of privacy. While there is no evidence that the trial court based its ruling on a finding of intentional infliction of emotional distress or invasion of privacy, but because appellant brings forth the issues and those two causes of action were included on the plaintiffs petition, in the interest of judicial efficiency, we will address them.

[I]n order to recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.”
White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991).

The record is completely devoid of any evidence that Dr. Beurlot either actively desired or was substantially certain that his conduct would cause Coutee severe emotional distress. Quite the contrary, Dr. Beurlot has consistently testified that his understanding was that Global could meet with him ex parte and that Global was entitled to ask any questions involving anything he had already been deposed upon regarding Coutee. There is no evidence in the record that Dr. Beurlot wanted, “to inflict severe emotional distress” or that he, “knew that severe emotional distress would be certain or substantially certain to result from his conduct.” Id. at 1209. 112Therefore, because Coutee failed to put forth any evidence of this essential element, we find that the record does not support a cause of action for the plaintiff against Dr. Beurlot for intentional infliction of emotional distress.

In the second part of their assignment of error # 2, Dr. Beurlot asserts that Coutee also failed to prove the essential elements invasion of privacy. The right to privacy is defined in Louisiana as “the right to be let alone.” Pack v. Wise, 155 So.2d 909, 913 (La.App. 3rd Cir.1963) writ denied 245 La. 84, 157 So.2d 281 (1963) quoting Hamilton v. Lumbermen’s Mut. Cas. Co., 82 So.2d 61, 63 (La.App. 1st Cir.1955), turit denied (La.1955). A tort of invasion of privacy can occur in four ways: (1) by appropriating an individual’s name or likeness, (2) by unreasonably intruding on physical solitude or seclusion, (3) by giving publicity which unreasonably places a person in a false light before the public and (4) by unreasonable public disclosure of embarrassing private facts. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (La.1979).

The record does not support that any of the above four occurrences transpired. There is no evidence that Dr. Beurlot appropriated Coutee’s name or likeness. There is no evidence that Dr. Beurlot intruded on Coutee’s physical solitude or seclusion. There is no evidence that Dr. Beurlot place Coutee in a false light privately, much less publicly. While there is some evidence that Dr. Beurlot unreasonably disclosed private facts about Coutee, the fact that a person’s work status is that of heavy manual labor as opposed to medium duty is hardly the type of embarrassing, private facts necessary to recover for an invasion of privacy. Therefore, we And that the record does not support a cause of action for the plaintiff against Dr. Beurlot for invasion of privacy.

ASSIGNMENT OF ERROR # 3:

| iaDr. Beurlot alleges that the trial court erred in finding that plaintiff suffered injury or damage. We disagree.

A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart, 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler, 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

There is evidence in the record that Coutee suffered injury or damage. Coutee testified that he was upset by the testimony Dr. Beurlot gave at the maritime trial. Coutee felt he was being called a liar and testified that it will always bother him. Further, Coutee’s wife also testified that Coutee was upset and has a general distrust of physicians now because he felt Dr. Beurlot had lied about him. The trial court gave credence to the testimony of Coutee and his wife. In its reasons for judgment, the trial court felt that it was obvious that Coutee felt psychological effects from having his private, privileged information discussed between his former physician and a third party. Given that there is evidence to support the trial court’s finding that Coutee suffered emotional injury, and keeping in mind the manifestly erroneous standard of review, we cannot say that the trial court was clearly wrong in finding that Coutee was injured and damaged by Dr. Beurlot.

However, we do find that the award of twenty thousand dollars for those injuries to be excessive. The proper standard for reviewing general damage' awards was enunciated in Guillot v. Doe, 03-1754, pp. 5-6 (La.App. 3 Cir. 6/30/04), 879 So.2d 374, at 379-80.

|14An appellate court should rarely disturb an award of damages due to the great and, even, vast discretion vested in the trial court. We can disturb such awards, only, when the trial court clearly abused its discretion. Reasonable people often disagree over the appropriate measure of general damages in a particular case. Yet, “[i]t is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.”
We should not rely on a comparison of prior awards in cases with similar medical injuries to decide whether the trial court abused its discretion. “The primary considerations in assessing damages are the severity and duration of the injured party’s pain and suffering.”

Citations and footnote omitted.

A quantum assessment is reviewed on appeal by the “much discretion” standard. Reck v. Stevens, 373 So.2d 498 (La.1979). The appellate court’s function is not to substitute its judgment for that of the trial court judge in this situation. If an abuse of discretion is found, the appellate court will only lower the award to the highest point which is reasonably within the discretion given to the trial court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

While there is testimony of Coutee and his wife that Coutee has a general distrust of physicians and that Coutee was surprised and felt betrayed by the testimony of Dr. Beurlot, there is no evidence of Coutee receiving any medical treatment for his emotional injury. Further, the kind of information that was revealed by Dr. Beurlot, one’s work status, is not such that would cause the emotional damage that would necessitate an award of twenty thousand dollars. Thus, based on these particular facts, we find that the trial court abused its discretion in awarding twenty thousand dollars to Coutee. The highest award we feel Coutee could recover under these facts is ten thousand dollars. Therefore, we amend those damages Dr. Beurlot owes to Coutee for his emotional damage to ten thousand dollars.

1 ^CONCLUSION

The judgment of the trial court is affirmed in part and amended in part. Costs of this appeal are assessed against Appellant.

AFFIRMED AND AMENDED.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissenting.

| t Certainly I understand Mr. Coutee’s concern regarding Dr. Beuriot’s- conversation with his employer’s counsel. Nevertheless, I find that he has failed to prove his entitlement to recover in this case. Mr. Coutee relies on La.R.S. 13:3734. Like La.Code Evid. art. 510, this provision merely relates to the testimonial and discovery privilege and, in my opinion, does not establish a basis for recovery in this case. Rather, it seems that Mr. Coutee’s complaints may be better viewed as ones for breach of contract or conflict of interest; however, the plaintiff failed to present evidence necessary for this type of recovery.

For these reasons, I respectfully dissent.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Kimberly Linn Conway CROOKS v. COREGIS INSURANCE COMPANY, et al.
    Nos. CW 2006-838, CA 2006-743.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 2006.
    Michael L. Glass, Alexandria, LA, Wilbert Joseph Saucier, Jr., Pineville, LA, for Plaintiffs/Respondents, Frank Crooks, Jr., Kimberly Linn Conway Crooks.
    Daniel G. Brenner, Sherron Ashworth, Bolen, Parker & Brenner, Alexandria, LA, for Defendants/Applicants, Marshall Larry Jeane, Lois J. Nichols Normand, Clarence Sheppard, Coregis Insurance Company, City of Pineville.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

I,Kimberly Linn Crooks sustained injuries to her back and hip when she slipped and fell in the hallway of Pineville City Hall on January 17, 2002. She received treatment for her injuries until August 12, 2002, approximately eight months after the occurrence of the accident.

On January 1, 2003, Mr. and Mrs. Crooks filed suit alleging claims of bodily injury and loss of consortium, naming as Defendants, the City of Pineville, Coregis Insurance Company, City Marshal Larry Jeane, work release inmate Clarence Sheppard, and Lois J. Nichols Normand. Defendants answered Plaintiffs’ petition alleging the comparative negligence of Plaintiff, Mrs. Crooks.

Defendants sought to have Plaintiff undergo a medical examination upon discovering that she had resumed treatment in February 2005, nearly two and a half years after she had ceased her initial treatment. The parties agreed that Mrs. Crooks would submit to a medical examination. However, despite two attempts, Mrs. Crooks was never evaluated. She flew to California on July 27, 2005, where she was treated by an orthopedist.

Defendants filed a Motion to Compel or, in the alternative, a Motion to Exclude Medical Evidence, claiming that they were deprived of their right to a medical examination. After a hearing, Defendants’ Motion to Exclude Medical Evidence was denied, and Defendants filed for supervisory writs appealing the trial court’s ruling, which have been consolidated with this appeal. After a trial on the merits, the trial court found in favor of Plaintiffs awarding them $47,063.00 in special and general damages. Defendants now appeal.

LFACTS AND PROCEDURAL HISTORY

On January 17, 2002, Kimberly Linn Conway Crooks, sustained injuries to her back and hip when she slipped and fell in the hallway of Pineville City Hall. She entered the Utility Office from the outside of the building and asked where she could find her husband, Frankie Crooks, Jr., who was employed as a Code Enforcement Officer with the City of Pineville Marshal’s Office. She then proceeded to walk through the double doors into the main hallway leading to the City of Pineville offices. As she stepped into the hallway, Mrs. Crooks slipped and fell on her right hip.

At the time of the accident, work release inmate, Clarence Sheppard, was mopping the floors of the hallway. He was under the supervision of Lois J. Nichols of the Pineville City Marshal’s Office. However, when the accident occurred, Ms. Nichols was assisting another inmate and was not present. Immediately after Mrs. Crooks fell, she was helped off the floor and was taken into the Utility Office, where she sat on a bench while Tonja Smail, the utility supervisor who was sitting directly behind the customer service desk in the Utility Office at the time of the accident, went to find Mr. Crooks.

At the time of his wife’s accident, Mr. Crooks was returning from lunch with Albert “Mickey” Basco, a police officer with the Pineville City Police Department. Ms. Smail located Mr. Crooks in the parking lot of City Hall and informed him that his wife had been injured. After reaching his wife, Mr. Crooks took her to the Rapides Regional Medical Center emergency room where an x-ray of her right hip was taken, and Mrs. Crooks was referred to orthopedist, Dr. David Levinsohn, at the Orthopedic Sports Medicine Clinic in Alexandria.

| sAfter the accident, Mrs. Crooks continued to suffer from sciatic pain shooting down her right leg, and experienced numbness in her right leg down to her knee. Dr. Levinsohn diagnosed Mrs. Crooks with piriformis syndrome and gave her an oral steroid. Four weeks later, she returned with the same symptoms. On her third visit, Dr. Levinsohn administered a steroid injection into Mrs. Crooks’ upper hip bone in an attempt to alleviate her pain. The injection provided some relief; however, the sciatic pain continued, and all of the pain returned after two to three days. Mrs. Crooks remained in the care of Dr. Levinsohn until the end of July of 2002, approximately seven months, when he relocated to California. Over the course of her treatment with Dr. Levinsohn, Mrs. Crooks was prescribed Vioxx and Celebrex on several occasions, and was also advised to do exercises to aid her recovery process.

On January 8, 2003, Mr. and Mrs. Crooks, filed suit for negligence, claiming bodily injury and loss of consortium, and naming as Defendants, the City of Pine-ville, its insurer, Coregis Insurance Company, Pineville City Marshal Larry Jeane, work release inmate Clarence Sheppard, and Lois J. Nichols Normand. Plaintiffs’ petition alleged Defendants’ negligence in creating an unreasonable risk of harm to guests at City Hall, failure to provide proper signage, blockades and other warnings to its guests, failure to remove substance from the floor, failure to direct pedestrian traffic through the interior of the building, and failure to adequately supervise and control the inmate.

In the petition, Mrs. Crooks sought to recover damages for “numerous contusions, abrasions, and disabling injuries to her body” as well as mental anguish and distress. Additionally, Mr. Crooks brought a separate cause of action for loss of consortium due to the physical injury his wife incurred as a result of the accident.

I ¿Defendants filed an answer on January 27, 2003, arguing the comparative negligence of Plaintiff, Mrs. Crooks. In their answer, they asserted that she was partially at fault for the accident at issue due to her failure to maintain a proper lookout, as well as her failure to act as a reasonably prudent person. They additionally argued that Mrs. Crooks failed to mitigate her damages and that she suffered no physical or mental loss for which medical expenses were necessary. A supplemental and amending answer was filed and signed on April 21, 2003, in which Defendants further alleged that Mrs. Crooks was walking too fast under the circumstances and that she ignored the posted warning signs advising that the floor was wet.

In February of 2005, nearly two and one-half years after she had last seen Dr. Levinsohn, Mrs. Crooks returned to the Orthopedic Sports Medicine Clinic for treatment with orthopedist, Dr. Jeffrey Garrison. During her first appointment, Dr. Garrison diagnosed Mrs. Crooks with piriformis syndrome and prescribed her Relaflen, an anti-inflammatory medication. He also suggested physical therapy exercises.

After she received no real relief, Mrs. Crooks sought treatment from Dr. Stephen Flood, an orthopedic surgeon in Lake Charles, on June 17, 2005. Dr. Flood performed an SI joint block, in which he injected a steroid into her spine. On her second visit, Dr. Flood ordered an MRI and performed nerve conduction studies. He found that Mrs. Crooks was suffering from a muscle putting direct pressure on the sciatic nerve and diagnosed her condition as post traumatic piriformis syndrome.

Upon receiving notice that Mrs. Crooks had resumed seeking medical treatment, Defendants began the process of requesting an Independent Medical | ¡^Examination (IME). The parties agreed to schedule an evaluation at the convenience of Defendants and the examining doctor. The parties agreed that the medical examination would be performed by Dr. Rayland K. Beurlot on July 14, 2005 in Alexandria, Louisiana. Plaintiffs arrived at Dr. Beur-lot’s office at the appointed time. However, they refused to complete the new patient questionnaire provided to them by Dr. Beurlot’s staff, and after telephoning their attorney, Mrs. Crooks left the doctor’s office without being examined.

Subsequently, Defendants filed a Motion to Compel an IME of Mrs. Crooks, and the order was signed on July 23, 2005, setting the hearing for August 15, 2005.

The parties then conducted a conference with the trial judge in chambers, in which the trial judge instructed Mrs. Crooks to return to Dr. Beurlot to be examined. Further, it was determined that she did not have to fill out the questionnaire by hand; however, she was instructed by the trial judge that she would have to verbally answer any questions the doctor may have. The second evaluation was scheduled for July 26, 2005.

Mr. and Mrs. Crooks arrived at Dr. Beurlot’s office at the appointed time on July 26, 2005. There is a dispute between the parties as to whether Mrs. Crooks refused to sign an “authorization” or “consent to examination” form. Defendants argue that Mrs. Crooks refused to sign the consent form, as required by Dr. Beurlot’s office in order for him to conduct the medical examination. According to Defendants, counsel for Plaintiffs then contacted counsel for Defendants and informed him that he would not allow his clients to sign the three sentence consent form unless the phrases, “IME” and “Independent” were removed. Mrs. Crooks, however, maintains that she was never asked to sign an “authorization” or a “consent to examination” | (¡form when she arrived at Dr. Beur-lot’s office for the second time, nor was she given any paperwork whatsoever to fill out. After sitting in the waiting room for approximately an hour and a half, Mr. and Mrs. Crooks were told by a member of Dr. Beurlot’s staff that they could leave, as the doctor would not see Mrs. Crooks that day. Consequently, Mrs. Crooks left Dr. Beurlot’s office yet again, without undergoing the medical examination.

The next day, July 27, 2005, Mr. and Mrs. Crooks flew to California for an appointment scheduled for July 28, 2005 with Dr. Aaron Filler at the Institute for Nerve Medicine in Santa Monica. Mr. Crooks had found Dr. Filler on the internet, and Dr. Flood assisted Mrs. Crooks in scheduling an appointment. On August 1, 2005, Dr. Filler performed an MRI guided approach for percutaneous chemo-myolytic ablation of the right piriformis muscle for decompression of the sciatic nerve, which involved 5 to 6 injections. Mrs. Crooks has incurred medical bills totaling $12,063.00, and although she has made no appointments for treatment with Dr. Filler in the near future, she has testified that she continues to be under his care.

On January 4, 2006, Defendants filed a Motion to Compel an IME or, in the alternative, a Motion to Exclude medical evidence after 2002, claiming that they were deprived of their right to a medical examination. After a hearing on the motion, the trial court denied Defendants’ motion in open court on January 30, 2006. Defendants applied for supervisory writs of review seeking to have the interlocutory judgment overturned. These writs were granted and are consolidated with this appeal.

The matter came to trial on February 2, 2006. After hearing the evidence and testimony, the trial court rendered judgment in favor of Plaintiffs, giving its reasons for judgment in open court. Plaintiff, Mrs. Crooks, was awarded general damages in |7the amount of $30,000.00 and special medical damages in the amount of $12,063.00. Additionally, the trial court awarded $5,000.00 in damages to Mr. Cooks for his loss of consortium claim. All costs and fees were assessed to Defendants. Defendants now appeal.

ASSIGNMENTS OF ERROR

Assignment of Error No. 1: The trial court erred in allowing Plaintiffs to present medical testimony concerning treatment occurring after 2002.

Assignment of Error No. 2: The damages awarded are manifestly erroneous in light of the medical evidence that should have been allowed in this case.

STANDARD OF REVIEW

A trial court’s factual determinations are subject to the manifest error standard of review and may not be overturned unless they are found to be “manifestly erroneous” or “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). In applying this standard, the appellate court must determine not whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Id. at 880. Therefore, “[i]f the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

LAW AND ANALYSIS

Assignment of Error No. 1: The trial court erred in allowing Plaintiffs to present medical testimony concerning treatment occurring after 2002.

^Defendants argue that they had a right to an IME in this case pursuant to La. Code Civ. P. art. 1464, which states:

When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. In addition, the court may order the party to submit to an examination by a vocational rehabilitation expert or a licensed clinical psychologist who is not a physician, provided the party has given notice of intention to use such an expert. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

Defendants assert that Mrs. Crooks placed her injuries to her back and hip area at issue when she and Mr. Crooks filed suit, and therefore, they deserve the opportunity to have an IME conducted in order to reasonably defend against Mrs. Crooks’ claims of injury. Plaintiffs counter this argument, noting that the only IME provided for under Louisiana law is found in La.R.S. 23:1317.1, and deals with the examination of a workers’ compensation claimant by a court appointed physician. Indeed, La.Code Civ. P. art. 1464 does not entitle Defendants to an IME. Rather, it allows a court to order a party whose physical condition has been put at issue to submit to a physical examination on the motion of another party and for good cause shown. In this case, although there is no written record of the determinations made during the conference in the trial judge’s chambers, and there is a dispute between the parties as to what was determined regarding what paperwork Mrs. Crooks had to fill out, there is no dispute as to the fact that the trial judge ordered Mrs. Crooks to return to Dr. Beurlot for examination.

| ^Plaintiffs point out that Mrs. Crooks was required only to appear to be examined by Defendants’ retained physician, without the necessity of executing the new patient questionnaire. Plaintiffs assert that, in this regard, Mrs. Crooks was 100% compliant, as it is uncontradicted that Mrs. Crooks appeared at Dr. Beurlot’s office at the scheduled time set for the second examination and that after waiting approximately one hour and a half, she was dismissed by Dr. Beurlot’s staff.

Defendants argue that Plaintiffs’ objections to the questions posed in Dr. Beur-lot’s pre-examination questionnaire were “no more than thinly disguised attempts to subvert the routine IME process” and to hamper the discovery process. They assert that Dr. Beurlot utilizes the Ostewes-try Disability Questionnaire, a pre-exam questionnaire used widely throughout the United States by physicians, including Dr. Filler; however, they point out, Mrs. Crooks did not object to completing Dr. Filler’s questionnaire, or several similar questionnaires at doctors of her own choosing, including Dr. Flood. From this, they conclude that Plaintiffs used the nature of the questions as an excuse for their “bad faith refusal to submit to the IME.” We find this argument to be moot, as the issue was resolved when the parties met with the trial court judge in chambers after the first attempted medical examination with Dr. Beurlot, and the judge determined that Mrs. Crooks had to return to Dr. Beurlot for the medical exam; however, she did not have to complete the questionnaire in her own hand.

Defendants further argue in their appeal that Plaintiffs acted in bad faith to deprive it of the court-ordered IME. They argue that Plaintiffs had adequate time between the July 14, 2005 medical exam and the rescheduled July 26, 2005 medical |inexam to review any patient documents and express them objections before arriving at Dr. Beurlot’s office for the second appointment. They argue that instead, Plaintiffs reserved their objections to the inclusion of the phrases “independent medical examination” and “independent examiner” with the intention of preventing the IME altogether, eventually undergoing surgery, and severely prejudicing Defendants’ ability to defend their claims.

First, we note that the trial court never ordered an IME of Mrs. Crooks. It is undisputed that the trial judge ordered that Mrs. Crooks return to Dr. Beurlot for a medical examination. However, as stated earlier, there is no documentation of such order in the record. In fact, the record is unclear in many places. What we do know is that Mrs. Crooks appeared for her medical examination and has testified that she was ready to answer any questions that may be asked of her by Dr. Beurlot, as she was ordered to do by the trial court judge. Defendants stringently argue that Mrs. Crooks refused to sign the “authorization” or “consent to examination” form. They aver that their counsel then received a telephone call from Plaintiffs’ counsel advising him that he would not allow his client to sign the form if it included the current language, thus preventing her from being medically examined by Dr. Beurlot. Consequently, Plaintiffs were told to leave Dr. Beurlot’s office by a member of his medical staff, as he would not see Mrs. Crooks that day.

Under the Louisiana Rules of Professional Conduct, Rule 2.1, an attorney “shall exercise independent professional judgment and render candid advice.” However, pursuant to Rule 1.2, “a lawyer shall abide by a client’s decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client | nas to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.” Therefore, although there was a phone call placed by Plaintiffs’ counsel to Defense counsel in regard to the advice he gave his client to signing the consent form, the final decision of whether to sign the consent form ultimately lay with Mrs. Crooks. As stated earlier, there is no evidence in the record that shows Mrs. Crooks was presented with, or refused to sign an “authorization” or “consent to examination” form on her second trip to Dr. Beurlot’s office. However, the record does contain the uncontradicted testimony of Mrs. Crooks that establishes that she was not asked to sign any paperwork when she arrived. In fact, she testified that had she been presented a consent to be examined form, she would have signed it. At trial, Defense counsel asked Mr. Crooks, “And you don’t know what was going on with Dr. Beurlot’s office, your lawyer’s office and my office while you were sitting there in the waiting room to, for your wife to be examined; do you?” He replied, “I thought everything was worked out before our visit. So, no, I don’t know what’s going on. I just knew we were sitting in a lobby.” Mr. Crooks’ testimony tends to show that neither he nor Mrs. Crooks knew about the telephone conversation or any problem regarding the consent form.

Given these facts, we do not find that Defendants have carried their burden of proving that Plaintiffs did not comply with the orders of the trial court and acted deliberately and in bad faith to deprive them of the court ordered medical examination. Therefore, we do not find that the trial court abused its discretion in allowing medical |1gevidence obtained after 2002 to be admitted at trial. Accordingly, we affirm the decision of the trial court.

Assignment of Error No. 2: The damages awarded are manifestly erroneous in light of the medical evidence that should have been allowed in this case.

Defendants argue in their second assignment of error that the award of damages to Plaintiffs is manifestly erroneous, as it is based, in large part, on medical evidence from 2005, which Defendants maintain should have been excluded from evidence by the trial court. We have determined that the trial court did not abuse its discretion in allowing the medical evidence obtained after 2002 into evidence. Therefore, Defendants’ argument as to quantum is moot.

CONCLUSION

Upon review of the record, we do not find that the trial court abused its discretion in allowing medical evidence obtained after 2002 to be admitted at trial. Additionally, we do not find that the trial court committed manifest error in its award of damages to Plaintiffs. Accordingly, we affirm the decision of the trial court and assess all costs of the appeal to Defendants.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Phillip Duke SEMON, Appellant.
    No. 41,999-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 30, 2006.

      Indigent Defender Board by Jerry Kir-cus, for Appellant.
    Paul Joseph Carmouche, District Attorney, Damon Daniel Kervin, Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   LWRIT DENIED.

This writ is untimely, but we will consider the filing because:

• there were extenuating circumstances relative to the late filing, and
• it is clear that the application should be denied on the merits anyway.

The defendant’s writ application was indeed filed late, but the reason was a family illness, and the record is ample to dispose of this suppression question.

All three of applicant’s issues raised in this writ pertain to consent. This is technically an unnecessary inquiry, because of the extant arrest warrants for the defendant. These warrants provided objective justification for entries into defendant’s home and his bedroom to search for his person, without need for consent of the co-occupant.

| ¿The questions and answers at the suppression hearing were primarily focused on whether or not Defendant’s mother freely and voluntarily consented for the officer to enter:

• the residence where she and the defendant live; and
• the defendant’s bedroom.

Our learned brother judge below observed the two witnesses and made a credibility call that the entries into the home and into the defendant’s bedroom were consensual. Nothing in this filing leads us to find error in the trial court’s conclusion in this regard.

In actuality, though, the two salient points are these:

• It is undisputed that the officers were aware of the existence of two arrest warrants for this defendant, one on a felony probation matter;
• Consent of the mother was unnecessary — a non-issue — since she admitted that the defendant lived with her.

The officers therefore had the objective right:

• to enter the defendant’s home and search anywhere he could hide;
• to be where he was (inside the house and inside his bedroom); and
• to seize any items immediately apparent to him as contraband. The items were legally seized pursuant to plain view.

Once lawfully inside the premises (whether by consent or by an arrest warrant), had the officers possessed a reasonable suspicion of danger, they could also have conducted a protective sweep, for officer safety, also limited to places a | sdefendant could hide. In conjunction therewith, any contraband in plain view could have been seized.

This writ application is denied on the merits.

      . There is no requirement that the officers must have the arrest warrant in their possession. La. C. Cr. P. Art. 217.

      . An officer may search a defendant’s residence and arrest him, without consent, and without close pursuit, pursuant to an arrest warrant. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

      . Had this defendant been hiding in a structure that was not his home, then (absent consent or close pursuit) the officers would have needed an arrest warrant for Semon, and a search warrant for his person, in order to make a non-consensual entry of the premises. This is not the case here. See Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

      . This is so, even assuming, arguendo, that the mother's consent was not voluntary, a claim expressly rejected by the trial court.

      . See Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003(1983).

      . U.S. v. Gould, 364 F.3d 578 (5th Cir.2004), cert denied, Gould v. U.S., 543 U.S. 955, 125 S.Ct. 437, 160 L.Ed.2d 317 (2004).


author: DICKINSON, Justice, DIAZ, Justice,

text:
    FEDERATED MUTUAL INSURANCE COMPANY v. Kevin Darrin McNEAL.
    No. 2004-CA-02450-SCT.
    Supreme Court of Mississippi.
    Nov. 30, 2006.
    William Bienville Skipper, attorney for appellant.
    Robert G. Germany, Eugene Coursey Tullos, Mark K. Tullos, Jackson, attorneys for appellee.
   ON MOTION FOR REHEARING

DICKINSON, Justice,

for the Court.

¶ 1. The appellee’s motion for rehearing is denied. The previous opinion is withdrawn, and these opinions are substituted therefor.

¶2. After collecting benefits from his employer’s workers’ compensation insurer, an injured employee filed suit against an allegedly negligent third party. When the suit was settled, the insurer requested reimbursement for workers’ compensation benefits paid to the employee, but the circuit court, citing the “made whole” doctrine, refused to order the repayment. Claiming an absolute statutory right to reimbursement, the insurer filed this appeal without first formally seeking intervention in the case. The questions presented are whether the insurer is properly before this Court and, if so, whether the judicially-created “made whole” doctrine preempts Miss.Code Ann. Section 71-3-71 (Rev.2000), which grants to a workers’ compensation insurer a lien against any amount recovered by an employee from a third party.

BACKGROUND FACTS AND PROCEEDINGS

¶ 3. Kevin Darrin McNeal was injured while delivering fuel to a customer of his employer, John Weatherford, Inc., who maintained a workers’ compensation insurance policy with Federated Mutual Insurance Company (“Federated”). McNeal applied for and was paid workers’ compensation benefits.

¶ 4. McNeal filed a complaint in the Circuit Court of Smith County, Mississippi, against Navistar International Truck and Engines Corp. ABA Corporation, and Waters International Trucks, Inc., alleging these defendants negligently caused the accident that led to his injuries. A Smith County jury assessed McNeal’s total damages at.$2,250,000.00 against Nav-istar International Truck and Engines Corporation, ABA Corporation, and Waters International Trucks, Inc. The jury also found McNeal to be twenty-five percent at fault, and a judgment was entered in McNeal’s favor for $1,687,500.00.

¶ 5. The defendants appealed to this Court, but the parties reached a settlement before the conclusion of the appeal. After being informed of the settlement, this Court remanded the matter to the Smith County Circuit Court. In its order approving the third-party settlement, the circuit court noted that McNeal disputed Federated’s entitlement to a workers’ compensation subrogation lien and directed the parties to deposit the disputed portion of the settlement funds in an interest bearing account maintained by McNeal’s attorney.

¶ 6. Federated, who had never formally sought intervention in the case and was not a party, filed a Motion to Compel Compliance with Section 71-3-71 requesting the circuit court order McNeal to reimburse it for all workers’ compensation benefits paid to him. The circuit court denied Federated’s motion, holding that the “made whole” doctrine announced in Hare v. State, 733 So.2d 277 (Miss.1999), applied to workers’ compensation subrogation liens. The circuit court further held that McNeal had not been made whole by the amount he received in settlement and that, until he was made whole, Federated was not entitled to repayment of its lien. Upon learning its motion was denied, Federated perfected an appeal to this Court.

DISCUSSION

¶ 7. On appeal, Federated raises only the question of “[w]hether the lower Court erred in holding the equitable ‘made whole’ doctrine applies to statutory workers’ compensation subrogation liens, despite the clear language of Miss.Code Ann. § 71-3-71.”

I. Mississippi Workers’ Compensation Act

¶ 8. The Mississippi Workers’ Compensation Act grants to a workers’ compensation insurer the statutory right to reimbursement of benefits paid an injured worker in the event the worker recovers from a responsible third party. The pertinent portion of the statute provides:

[A]ny amount recovered by the injured employee or his dependents (or legal representative) from a third party shall be applied as follows: reasonable costs of collection as approved and allowed by the court in which such action is pending, or by the commission of this state in case of settlement without suit, shall be deducted; the remainder, or so much thereof as is necessary, shall be used to discharge the legal liability of the employer or insurer; and any excess shall belong to the injured employee or his dependents.

Miss.Code Ann. § 71-3-71 (Rev.2000) (emphasis added).

¶ 9. Thus, the statute unambiguously provides that, after deducting the costs of collection and attorneys’ fees, any recovery from a third party (whether by award or through settlement) must be applied first to repay the workers’ compensation insurer for benefits it paid the claimant. This Court, stating the statute must be strictly interpreted according to its mandatory language, has uniformly and consistently applied the statute and required reimbursement. See, e.g., Miss. Power Co. v. Jones, 369 So.2d 1381, 1387 (Miss.1979) (“The statute is plain and unambiguous.”); Litton Sys., Inc. v. Murphree, 301 So.2d 850, 852-53 (Miss.1974) (statute means “exactly what it says; that is, that the employer and insurer are entitled to recover compensation paid.”); Merchants Co. v. Hutchinson, 199 So.2d 813, 815 (Miss.1967) (“Mississippi law is clear and unambiguous on the procedure to be followed by the employer or its insurer in intervening or joining in the cause of action. It is equally clear and unambiguous in setting forth the mandatory distribution to be made of any amount recovered.”).

¶ 10. Clearly, the requirements for application of Section 71-3-71 are met by the facts of this case: Federated paid workers’ compensation benefits to McNeal pursuant to the Mississippi workers’ compensation statutes, and McNeal recovered money from the third-party defendants. Thus, the money recovered by McNeal from the defendants, after deducting collection and attorneys’ fees, must next be used to reimburse the workers’ compensation provider. Therefore, McNeal is statutorily required to reimburse Federated for the workers’ compensation benefits it paid him.

II. The “Made Whole” Doctrine

¶ 11. In refusing to order the reimbursement, the circuit court relied on this Court’s decision in Hare, 733 So.2d at 279, wherein Hare was insured by both a health insurance policy and an uninsured motorist policy. Hare suffered injuries in an automobile accident and collected approximately $6,000 in medical benefits from his health insurance policy, which included the following subrogation language: “[t]he plan shall be subrogated and shall succeed to the right of the Employee ... to recovery against any person, organization or other carrier.” Id. Thereafter, Hare settled with his uninsured motorist carrier for $10,000, and the health insurance carrier sought reimbursement pursuant to its subrogation agreement. Id.

¶ 12. In Hare, this Court engaged in a detailed analysis of the “made whole” rule, defining it as “the general principle that an insurer is not entitled to equitable subro-gation until the insured has been fully compensated.” Id. at 281. This decision was based on equitable common law principles which supported the conclusion that until the insured had been fully compensated — or made whole — no double recovery would occur. Id. at 284. This Court further stated, “the general intent of sub-rogation (and the stated intent of [Hare’s health insurance policy]) is to prevent a double recovery by the insured.” Id. at 285. Finally, this Court noted that the “made whole” rule “is not to be overridden by contract language, because the intent of subrogation is to prevent a double recovery by the insured....” Id. at 284. Thus, because this Court found that Hare had not been fully compensated for his injuries, the health insurance carrier was not allowed to enforce its otherwise valid and enforceable contractual right of subrogation. Id.

¶ 13. Federated’s subrogation rights do not spring from a contractual agreement as in Hare, but rather are conferred by Section 71-3-71. As the Court of Appeals stated in Mississippi Food & Fuel Workers’ Compensation Trust v. Tackett, 778 So.2d 136, 143 (Miss.Ct.App.2000), a workers’ compensation insurer’s right of reimbursement “exists by virtue of statute and must rise or fall strictly as a matter of statutory interpretation.” In reversing and rendering a chancery court’s order denying a workers’ compensation insurer its right of reimbursement, the Court of Appeals noted, “[a] chancellor, despite his broad equitable powers, is not free to disregard the clear guidance of a pertinent statute simply because he concludes that it would be unfair on the particular facts of the case to apply the statute according to its terms.” Id.

¶ 14. Thus, we find the circuit court erred when it applied the equitable “made whole” doctrine to the statutory right of subrogation provided in Section 71-3-71. The Mississippi Workers’ Compensation Act unambiguously provides the method for distributing proceeds when, as here, an injured employee recovers from a third party.

¶ 15. The circuit court’s reliance on an unpublished opinion from the Hinds County Circuit Court was error. First, our trial courts are not free to decide issues according to authority found in unpublished circuit court opinions. Additionally, the Arkansas case cited by the Hinds County Circuit Court is inapposite. In Jaynes, the Arkansas Supreme Court applied the “made whole” doctrine to an Arkansas workers’ compensation subrogation lien statute which had previously been found vague and ambiguous. 33 S.W.3d at 165. The Arkansas statute entitled the compensation carrier to a first lien on only two-thirds of the net proceeds recovered in a third-party action. Id. The statute required one-third of the remainder of the proceeds go to the injured employee. Id. Considering the depth and breadth of Mississippi precedent on this question, reliance on a foreign jurisdiction’s interpretation of its own markedly different subro-gation statute is unnecessary.

¶ 16. Thus, in the case before us today, Federated is entitled to satisfaction of its workers’ compensation subrogation lien in the amount of $66,412.10.

III. Federated’s Failure to Intervene

¶ 17. Relying only on its statutory right of subrogation, Federated appealed the circuit court’s decision denying its motion for subrogation. Federated admits it did not formally pursue intervention pursuant to Rule 24 of the Mississippi Rules of Civil Procedure but, instead, filed a motion for enforcement of its lien. Federated pointed out in oral argument that our case law has not required a workers’ compensation insurer to intervene or join in an employee’s third-party suit in order to as-serf its statutory lien. Indeed, Federated is correct, as this Court has never required the insurance carrier to join or intervene in an employee’s third-party litigation to validate or enforce its subrogated claim to the proceeds recovered in that litigation. See, e.g., Sneed v. Verdun, 611 So.2d 947, 948 (Miss.1992); Kidwell v. Gulf, Mobile & Ohio R.R., 251 Miss. 152, 168 So.2d 735, 736 (1964). However, the question before us today is different. The issue is not whether Federated is entitled to subrogation without intervention, but rather whether Federated may appeal the circuit court’s decision without intervention.

¶ 18. Although Mississippi lacks relevant precedent on this subject, we find the Fifth Circuit’s approach to appeals by non-parties who did not intervene to be well-reasoned and instructive. In SEC v. Forex Asset Management LLC, 242 F.3d 325, 328-29 (5th Cir.2001), the Fifth Circuit examined whether investors could appeal a district court’s order approving a Receiver’s distribution plan when the investors were not parties named in the SEC’s complaint and never sought to intervene under Rule 24 of the Federal Rules of Civil Procedure. Acknowledging the general rule that non-parties lack standing to appeal, the Court applied a three-part test to determine whether the investors, as non-parties, could nonetheless appeal the district court’s order. Id. at 329. Under this test, a court inquires whether “the non-part[y] actually participated in the proceedings below, the equities weigh in favor of hearing the appeal, and the non-part[y] ha[s] a personal stake in the outcome.” Id. (Citations omitted). Finding the investors satisfied each prong of the three-part test, the Fifth Circuit determined the investors had standing to appeal. Id. at 330. However, the Fifth Circuit cautioned, and we agree, “that this decision does not indicate that parties will be given a free pass to avoid complying with the rules of intervention.” Id.

¶ 19. Looking to the first requirement of whether Federated actually participated in the proceedings below, the circuit court and all parties to the litigation accepted Federated as having intervened in the proceedings. No objection was ever raised to Federated’s active participation. As to the second condition — weighing the equities of hearing the appeal — we again find in favor of Federated. The circuit court’s improper imposition of the “made whole” doctrine substantially affects Federated’s statutory subrogation rights. As previously discussed, the application of Section 71-3-71 clearly requires McNeal to reimburse Federated for the workers’ compensation benefits paid out on his behalf in the amount of $66,412.10. Finally, the repayment of money owed to it under Section 71-3-71 gives Federated a personal stake in the outcome, satisfying the third requirement for non-party standing.

¶ 20. Although the formal procedural requirements of Rule 24 were not met, no objection was raised to either Federated’s participation in the trial court or its pursuit of this appeal. Additionally, Federated satisfies the test for non-party standing to appeal under Forex. However, we stress that the better practice for insurers who anticipate the possible need for judicial assistance in enforcing their liens is to file a formal intervention in accordance with the provisions of Rule 24 of the Mississippi Rules of Civil Procedure.

CONCLUSION

¶21. For the reasons stated, we reverse the trial court’s refusal to order payment to Federated based upon the “made whole” rule, and we remand this case for further proceedings consistent with this opinion.

¶ 22. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., AND CARLSON, J., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, GRAVES AND RANDOLPH, JJ.

DIAZ, Justice,

Dissenting.

¶ 23. Because Federated Mutual, a non-party, has no standing to appeal in this case, I must respectfully dissent. It is absolutely uncontested that Federated Mutual never intervened at the trial court level. The majority opinion finds that, even though Federated did not intervene via M.R.C.P. 24, it should be allowed to appeal an action in which they were not formally involved. This is contrary to our precedent applying Rule 24 and the Rules of Civil Procedure in general. “We have repeatedly required strict compliance with the appeal provisions of our rules and appeal statutes.” Bertucci v. Miss. Dep’t of Corrs., 597 So.2d 643, 647 (Miss.1992).

¶ 24. Indeed, Federated Mutual never even sought to intervene, and only now asks on appeal that we accept it as an intervenor. To intervene in a trial court action is not difficult. Rule 24 has one of the lowest standards of any rule: “[ujpon timely application, anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action.... ” (emphasis added). If Federated Mutual wished to participate in the trial court proceedings, it simply needed to file a motion.

¶25. The majority ignores that “the rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (1988) (per curiam). The Marino Court concluded that “the better practice is for such a nonparty to seek intervention for purposes of appeal.” Id. Federated Mutual could have intervened in the trial court, but it chose not to.

¶ 26. In examining the Marino opinion and applying it as precedent, the First Circuit noted that “[hjistory confirms the accuracy of th[e] description” of the “well settled” rule of not allowing appeals by non-parties. Microsystems Software, Inc. v. Scandinavia Online AB, 226 F.3d 35, 40 (1st Cir.2000). That court ultimately concluded that “courts are powerless to extend a right of appeal to a nonparty who abjures intervention” in situations “when intervention is readily available.” Id. at 40. In obeying Marino, the Seventh Circuit put it simply: “Without an appeal, we have no jurisdiction ... [and][w]e do not have the power to decide cases of which we lack jurisdiction, for jurisdiction is power to decide.” SEC v. Wozniak, 33 F.3d 13, 15 (7th Cir.1994).

¶ 27. A non-party attempting to appeal is apparently a matter of first impression with our Court, although we have previously decided when a motion to intervene is proper. Our precedent holds that a motion to intervene may be denied if it is filed in an untimely manner, subject to a four-part test. City of Tupelo v. Martin, 747 So.2d 822, 829 (Miss.1999) (“Regardless of whether intervention of right or permissive intervention is sought, in either case the motion must be timely”). In Martin we ultimately denied the motions to intervene because of untimeliness, even though that meant the “harsh” dismissal of two wrongful death lawsuits. Id. at 829. We have required strict adherence to other Rules of Civil Procedure in the past. Perry v. Andy, 858 So.2d 143, 148 (Miss.2003) (even “pro se plaintiffs must be held to a strict compliance standard under Miss. R. Civ. P. 4(h)”); Foster v. Noel, 715 So.2d 174, 182-83 (Miss.1998) (requiring strict compliance with Rule 26 “to prevent trials from being tainted with surprise and unfair advantage”). We have also recently underscored the requirement of strict compliance with statutory pre-require-ments to litigation. See Arceo v. Tolliver, — So.2d -, 2006 WL 3317036, 2006 Miss. LEXIS 650 (Miss. Nov. 16, 2006) (requiring strict compliance with Section 15-1-36(15), which requires a 60-day notice be provided to medical providers prior to suit); Pitalo v. GPCH-GP, Inc., 933 So.2d 927 (Miss.2006); Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 819-20 (Miss.2006) (requiring strict compliance with Section 11-46-11(1), which requires 90 days notice prior to suit against a governmental entity).

¶ 28. The majority today would overrule our entire line of cases interpreting Rule 24-for apparently there is no need for a test examining timeliness, as timeliness no longer matters at all. As discussed above, the burdens of intervention are not heavy. Second, the Rules were adopted for a reason: to provide a comprehensive and orderly framework for litigation, understandable by practitioners, judges, and litigants. By casting aside the plain language of the rules and adhering to a “close enough” standard, the majority thwarts the very reason for having our rules. And as we have said before, “[a] rule which is not enforced is no rule.” Bertucci, 597 So.2d at 647 (internal quotation & citation omitted).

¶ 29. The majority also takes a passive approach to Federated Mutual’s standing before this Court that is contrary to our case law. The majority notes that “[i]n this case, no party ever raised the issue of Federated’s formal intervention, and the matter only arose in response to a question posed to counsel at oral argument.” This fact is meaningless, since “[tjhis Court may sua sponte dismiss a case for lack of standing whether it was raised in the court below or not.” Benedict v. City of Hattiesburg, 693 So.2d 377, 381 (Miss.1997) (emphasis added). We decided likewise in State v. Hicks, 806 So.2d 261, 263 (Miss.2002). Then Presiding Justice Smith, writing for the Court, held that even when “the issue of whether [a party] has standing to prosecute [an] appeal has not been raised by the parties, this Court may sua sponte address the question of standing.” Id. at 263 citing Benedict v. City of Hattiesburg, 693 So.2d 377, 381 (Miss.1997).

¶ 30. Because the majority today ignores well-settled law, our Rules of Civil Procedure, and overturns precedent regarding the application of Rule 24 and our Rules in general, I respectfully dissent.

EASLEY, GRAVES, AND RANDOLPH, JJ., JOIN THIS OPINION.

      . Under the "made whole" doctrine, a plaintiff must be made whole, that is, recover all damages, before an insurer is allowed to enforce its contractual right to subrogation.

      . In denying this motion, the circuit court relied on an unpublished opinion from the Hinds County Circuit Court, which cited an Arkansas Supreme Court case, General Accident Insurance Co. of America v. Jaynes, 343 Ark. 143, 33 S.W.3d 161 (2000).

      . We also recently declined to apply the "made whole” rule to an Uninsured Motorist/Under Insured Motorist case. See United Servs. Auto. Ass’n v. Stewart, 919 So.2d 24, 30 (Miss.2005).

      . The circuit court cited the unpublished Hinds County Circuit Court opinion of Mississippi Insurance Guaranty Ass’n v. Brewer. On July 26, 2005, the Mississippi Court of Appeals issued its decision in Mississippi Insurance Guaranty Ass’n v. Brewer, 922 So.2d 807 (Miss.Ct.App.2005). One assignment of error in Brewer was the trial court’s ruling that the "made whole” doctrine applied to workers’ compensation subrogation liens. Id. at 812. In reversing the trial court, the Court of Appeals held that the workers’ compensation insurer "ha[s] a statutory right of subrogation for monies paid to” the claimant. Id. at 813. Therefore, the circuit court's reliance on the unpublished circuit court opinion in denying Federated’s subrogation reimbursement was misplaced.

      . The dissent correctly points out that Federated failed to strictly comply with the mandates of Rule 24. If this case involved Federated’s failure to comply with statutory requirements, the dissent's arguments would be well-taken. However, strict compliance with procedural rules is capable of being waived. See Young v. Huron Smith Oil Co., 564 So.2d 36, 39 (Miss.1990) (party waived issue of compliance with the service requirements of M.R.C.P. 4). In this case, no party ever raised the issue of Federated’s formal intervention, and the matter only arose in response to a question posed to counsel at oral argument.

      . Rule 24 of the Federal Rules of Civil Procedure and Rule 24 of the Mississippi Rules of Civil Procedure use virtually the same language to describe the requirements for intervention of right and permissive intervention. Both Rules also require the same intervention procedure.

      . The majority opinion ignores these citations to the recent cases holding that we must strictly follow certain rules of civil procedure. However, the opinion fails to cite even one case that supports this proposition. Instead, it looks to Young v. Huron Smith Oil Co., 564 So.2d 36, 39 (Miss.1990) for support. Young is further support for respecting the orderly language and processes the Rules provide. In that case, we found a party waived a Rule 12 defense because "we have consistently held that failure to assert the defense in an answer, motion or other pre-responsive pleading is a waiver that will be enforced.” Id. at 39. This waiver is expressly created by the rules. M.R.C.P. 12(h)(1).


author: SMITH, Chief Justice,

text:
    Wallace WEATHERLY, M.D., and Weatherly Sports Medicine & Family Orthopaedic Clinic, P.C. v. Adina WELKER and Forrest Welker.
    No. 2003-CA-02595-SCT.
    Supreme Court of Mississippi.
    Nov. 30, 2006.

      Mark P. Caraway, Meta S. Copeland, Jackson, attorneys for appellants.
    Kenneth Charles Miller, Derek L. Hall, Thandi Wade, Jackson, attorneys for ap-pellees.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   SMITH, Chief Justice,

for the Court.

¶ 1. This case comes to this Court on appeal from the Circuit Court of First Judicial District of Hinds County, by defendants Dr. Wallace Weatherly and Weatherly Sports Medicine and Family Orthopaedics Clinic, P.A. (hereinafter “Weatherly”). This case involves a medical malpractice claim against Weatherly in connection with the care and treatment given to plaintiff Adina Welker (hereinafter “Ms. Welker”) when she fell during a visit to Weatherly’s clinic. On July 28, 2003, a jury returned a verdict in favor of plaintiffs Adina and Forrest Welker (hereinafter “Welker”) in the amount of $530,000, and judgment was entered in accordance with that verdict. Weatherly appeals and requests a new trial on all issues of liability and damages.

¶ 2. We hold that the trial judge abused her discretion when she advised the jury venire of on-going settlement negotiations between the parties.

FACTS AND PROCEDURAL HISTORY

¶ 3. On July 13, 2000, Welker filed a complaint alleging medical negligence against Weatherly, who is a board certified orthopaedic surgeon who resides and practices in Hinds County, Mississippi, based on an injury Ms. Welker sustained during a visit to Weatherly’s clinic. On May 12, 1999, Ms. Welker came under the care of Weatherly for the first time when she made an office visit. She filled out an intake form and was initially interviewed by one of Weatherly’s surgical assistants. She made complaints of hip pain and popping and disclosed that she suffered from neurally medicated hypotension. Weath-erly performed a physical examination of Ms. Welker and administered a steroid injection into the bursa of her hip. There is some dispute as to how long. Weatherly remained in the room after the injection. After Weatherly left the room, Ms. Welker fainted and fell to the floor, causing her to suffer injuries which are the subject of this action. The matter proceeded to trial on July 21, 2003.

¶ 4. On the first day of trial, the trial court met with the parties in chambers to inquire about the status of settlement negotiations. The court instructed the parties to leave the courtroom and discuss settlement before a jury was selected. At this point, the venire had been called to the courtroom. The trial judge then returned to the courtroom to perform roll call of the panels, at which time she informed the potential jurors that settlement negotiations were taking place outside the courtroom at that very moment. Neither the parties nor their attorneys were present when the trial judge made the following statement:

This is another part of the selection process. It’s called voir dire. But at this point I’m going to have to put you-all in recess again. And the recess is because the ease that’s scheduled to begin and we’re supposed to be picking a jury for right now, the attorneys and the parties are talking settlement. They may not settle, and we may be here at some point talking about a trial going forward. If this happens as it does in 90 percent of the cases-that are ever filed, then we won’t need you. If they do not reach an agreement, then you will be back here at 1:00 and the jury will be picked.

Jury selection followed that afternoon, and later that evening counsel for Weatherly learned that the venire had been informed of an attempted settlement. The next morning, before opening statements, defense counsel made a motion for a mistrial and the selection of a new jury based on the trial court’s violation of Rule 408 of the Mississippi Rules of Evidence. That motion was denied.

¶ 5. The jury subsequently returned a verdict in favor of Ms. Welker in the amount of $500,000 and in favor of Forrest Welker in the amount of $30,000. Judgment was entered in accordance with the verdict. On August 14, 2003, Weatherly moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. On October, 2, 2003, the trial court issued an order denying the post-trial motions, from which Weatherly filed a notice of appeal. On appeal, Weatherly presents the following issues for review:

I.Whether the trial court erred by informing the venire of on-going settlement negotiations.
II. Whether the trial court erred in its application of the United States Supreme Court decision of Batson v. Kentucky to Dr. Weatherly’s peremptory challenges.
III. Whether the trial court erred by denying a continuance of the trial date after Plaintiffs disclosed critical medical records seven days prior to trial.
IV. Whether the trial court erred by refusing to instruct the jury on Dr. Weatherly’s claim of contributory negligence.
V. Whether the trial court erred by giving Jury Instruction 12, which was peremptory in nature, and which did not state the standard of care to be applied to Dr. Weatherly’s care and treatment of Adina Welker.

Because the determination of the first issue controls, we need not address the other issues.

DISCUSSION

I. Whether the trial court erred by informing the venire of on-going settlement negotiations.

¶ 6. Weatherly asserts on appeal that the trial court erred by informing the veni-re of on-going settlement negotiations. Weatherly argues that Rule 408 of the Mississippi Rules of Evidence disallows the mentioning of settlement negotiations at any time during trial, with one exception pointed out in Smith v. Payne, where the fact of settlement was used for the purpose of explaining the absence of a settling defendant at trial. 839 So.2d 482, 487 (Miss.2002). With regard to disclosing the amount of settlement, the Court stated that the probative value, if any, of the settlement amount is substantially outweighed by the danger of unfair prejudice; however, this case does not offer any guidance with regard to the factual situation in the present case. Id. Weatherly cites cases from other jurisdictions, which found that Rule 408 prohibits the trial judge from discussing settlement negotiations with the jury. See infra Kennon v. Slipstreamer, Inc., 794 F.2d 1067, 1071 (5th Cir.1986); Fahrbach v. Diamond Shamrock, Inc., 122 N.M. 543, 928 P.2d 269, 274 (+1996). Relying on Green v. State, 97 Miss. 834, 53 So. 415, 416 (1910), Weatherly submits that the proscription against discussing settlement negotiations found in Rule 408 applies with even greater force to the trial court because of the importance that jurors place on the judge.

¶ 7. Rule 408 provides that:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

Miss. R. Evid. 408. Although evidence of settlement is not admissible to prove liability or the invalidity of a claim under Rule 408, “this rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” Id.

¶ 8. There are no Mississippi cases directly on point with regard to whether a trial court’s disclosure of on-going settlement negotiations between parties actively involved in a trial to the venire violates Rule 408; however other jurisdictions provide guidance. In Fahrbach, the Supreme Court of New Mexico stated that an analogous version of Rule 408 applies equally to “comments of the court or of counsel made in argument to jury or in voir dire.” 928 P.2d at 274. The Fifth Circuit has held that Federal Rule 408 bars the admission of evidence of settlement unless it is admissible for a purpose other than “to prove liability for or invalidity of the claim or its amount” Kennon, 794 F.2d at 1069. Similar to this Court’s reasoning in Smith, the Fifth Circuit held that while it is reversible error for a trial court to reveal the amount of settlement, revealing the fact of settlement is permissible when it explains the absence of settling defendants who were previously in court because it serves the purpose of reducing jury confusion. Id. at 1070. However, unlike Smith and Ken-non, mentioning the settlement in this case was not for the purpose of explaining the absence of a settling co-defendant; in fact, there was no purpose in disclosing the parties’ settlement negotiations and in our view to do so was prejudicial error. We find that the disclosure of settlement negotiations in this case clearly falls outside of the permissible purposes set out in Rule 408. The trial court reasonably could have and should have found a more appropriate way of dealing with the delay without disclosing to the venire that the parties were trying to settle the case, which implies responsibility for the injury.

¶ 9. One authority provides:

As a general rale, if a trial judge refers at all to the subject of a compromise, he must do so in such a fashion that no party may complain of bias, hostility, or duress, or a predetermined result. Nor may any of the above be made apparent to a jury. Thus, broadly, it has been regarded as prejudicial error for a trial judge to demonstrate hostility in his remarks to a party, or to the jury, or to suggest that the party might be visited with an adverse result should he fail to settle, especially if the jury is aware of such attitude.

D.L. Spillman, Jr., Annotation, Propriety and Prejudicial Effect of Suggestion or Comments by a Judge as to Compromise or Settlement of Civil Case, 6 A.L.R.3d 1457,1460 (1966)(footnote omitted). Welker emphasizes that “merely to refer to compromise as a generally desirable resolution or to point out that compromise is a technique available to litigants, however has not been regarded as erroneous.” Id. However, Welker fails to recognize that the judge in this case did not merely refer to compromise as a desirable resolution, but actually informed the venire that the parties, in the case that they were about to consider, were engaged in settlement negotiations at the very moment that they sat in the courtroom awaiting jury selection. When the jurors returned for voir dire following the trial court’s statement, it was obvious that the case did not settle. Shortly after, counsel for Welker told the venire that the evidence would show that Ms. Welker’s actual damages were $4,000,000. The jury reasonably could have concluded that Weatherly had seriously considered a multi-million dollar demand in the morning negotiations, which could have inadvertently resulted in prejudice. Therefore, the trial court’s reference to the settlement was not done “in such a fashion that no party may complain of bias, hostility, or duress, or a predetermined result.” Id.

¶ 10. Even more critical, considering what occurred in the case at bar, in Green, this Court stated that jurors are very susceptible to the influence of the judge, and thus a judge “cannot be too careful and guarded in language and conduct in the presence of the jury to avoid prejudice to either party.” 53 So. at 416. The Court further stated that “a reviewing court will not stop to inquire whether the jury was actually influenced by the conduct of the judge. All the authorities hold that if they were exposed to improper influences, which might have produced the verdict, the presumption of law is against its purity; and testimony will not be heard to rebut this presumption.” Id. Therefore, whether the jury was actually prejudiced or influenced by the statement is not for the Court to decide; rather, the mere fact that the statement was made to the jury creates a conclusive presumption of such prejudice. We continue to adhere to Green. We note that the trial judge egregiously advised the jury that “90 percent of the cases that are ever filed” [settle]. This statement only further highlighted the prejudice. Taking into consideration the importance placed on trial judges and their role in safeguarding impartiality, we find that the trial court abused its discretion by informing the venire of last minute, on-going settlement negotiations taking place on the first day of trial.

CONCLUSION

¶ 11. We find that the trial court committed reversible error when it informed the venire of on-going settlement negotiations between the parties. Accordingly, we reverse the trial court’s judgment and remand this case for a new trial on all issues.

¶ 12. REVERSED AND REMANDED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., NOT PARTICIPATING.

      . Ms. Welker testified that Weatherly left the room about one minute after administering the shot. However, Weatherly, testified that he stayed in the examination room for at least five minutes and made sure Ms. Welker was not going to have an adverse reaction to the injection.