author: COOKS, Judge.

text:
    STATE of Louisiana v. Jason Lee SHORT.
    No. 2006-1451.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 2007.
    Rehearing Denied June 27, 2007.

      J. Rodney Messina, Baton Rouge, LA, for Defendant/Appellant, Jason Lee Short.
    Bradley R. Burget, Assistant District Attorney, Seventh Judicial District, Vida-lia, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS and MICHAEL G. SULLIVAN, Judges.
   COOKS, Judge.

11 FACTS AND PROCEDURAL HISTORY

In the early morning hours of April 5, 2005, Jason Lee Short and Joseph Loncar allegedly left Short’s residence to rob a crack dealer. En route, they spotted the victim, Richard Cupstid, walking down Roundtree Road in Concordia Parish. Cupstid was struck by Short’s vehicle. He was then beaten and robbed. Short and Loncar then got back in the vehicle and exited Roundtree Road onto U.S. Highway 84/65. Within minutes, they re-entered Roundtree Road and headed back to Short’s residence, where they again saw the victim. Cupstid was then shot in the head at close range and left on the side of the roadway. Cupstid died as a result of his injuries.

On June 1, 2005, the State filed an indictment charging the Defendant, Jason Lee Short, with second degree murder, in violation of La.R.S. 14:30.1. A jury trial was held and Defendant was found guilty of second degree murder. Defendant was 'subsequently sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence.

Defendant is now before the court asserting three assignments of error. Defendant contends the trial court erred in denying his objection to the hearsay statements made by an unavailable co-perpetrator, the trial court erred in denying his motion for mistrial, and the trial court erred in allowing Investigator Jimmy Dar-den to testify as an expert without being tendered as such.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant contends the trial court erred in denying his objection to the hearsay statements made by the unavailable co-perpetrator Joseph Loncar. These statements were introduced into evidence via the | ^testimony of Angela Mapp and Keysha Freeman, which Defendant argues is in direct violation of his Sixth Amendment right.

On May 22, 2006, Defendant filed a Motion in Limine, seeking to prohibit the State from eliciting testimony from several named witnesses regarding statements Joseph Loncar made to them about the events on the night of April 5, 2005. At a hearing, the trial court granted the motion “to the extent that any direct criminal activity will be excluded.” The trial court later clarified that if, during their testimony, witnesses testified regarding what Loncar said the Defendant did, that testimony would not be admissible.

At trial, Loncar exercised his Fifth Amendment privilege against self-incrimination and was declared unavailable to testify. The State later called Keysha Freeman and Angela Mapp to testify. Freeman was questioned as follows:

Q. Did Mr. Loncar make any statements to you?
A. He told me—
Q. Just, did he make some statements to you?
A. Yes, sir.
Q. Did he indicate to you that he had robbed somebody?
A. Yes, sir.
Q. Did he indicate to you that he robbed somebody with a gun?
A. I’m not sure if he robbed him with a gun, but I remember hearing him saying something about pistol whipping.
Q. Did he pistol whip somebody?
A. He said that a pistol whipping took place.
Q. Now, did he tell you how this occurred whether he was in a vehicle or not?
A. Yes, sir.
|SQ. Did he tell you whether he was the driver of the vehicle or passenger of the vehicle?
A. He said he was on the passenger side.
Q. Did he tell you that someone may have been run over?
A. Yes, sir.
Q. Did he tell you whether or not this occurred before or after the robbery?
Q. Did Mr. Loncar indicate whether or not the running over of somebody occurred prior to the robbery or after the robbery?
A. I believe it was after.
Q. After?
A. Yes, sir.
Q. According to what Mr. Loncar told you?
A. Yes, sir.
Q. Did Mr. Loncar tell you whether or not he shot anyone?
A. No, sir.
Q. He didn’t tell you anything or he told you he did not shoot someone?
A. He told me he did not shoot anyone. Q. The only information you have is what Mr. Loncar told you?
A. Yes, sir.
Angela Mapp was then questioned as follows:
Q. Did Mr. Loncar eventually tell you why he wanted you to come to Vidalia and pick him up?
A. Yes, sir, he did.
Q. Did he tell you whether or not he was involved in a robbery?
A. Yes, he did.
| ,|Q. Did he tell you that he robbed a person?
Q. Did he indicate to you whether or not he used a gun in the crime that he committed of robbery?
A. Yes, sir, he did.
Q. Did he tell you whether or not he beat the person that he robbed?
A. Yes, sir, he did.
Q. Did he tell you that there was a vehicle used in this crime?
A. Yes, sir.
Q. Did he tell you whether or not he was the driver or the passenger of this vehicle.
A. He said he was in the passenger’s side.
Q. Did he tell you whether or not somebody was shot?
A. Yes, sir, he did.
Q. Did he indicate whether or not he shot that person?
A. He said he did not shoot this person.
Q. Did he indicate whether or not the robbery and the beating that he inflicted on this person occurred before or after this person was run over?
A. He said before.
Q. He said a robbery occurred?
A. A robbery occurred — well, a beating, a robbery and then the boy got run over.
Q. And the shooting occurred after that?
A. Yes, sir.

Defendant asserts for any statement Loncar made to be admissible at trial, the statement must qualify as an exception to the hearsay rule set out in La.Code Evid. art. 804(B). Defendant argues none of the exceptions in Article 804(B) were met. [ ¡^Defendant additionally asserts the statements made by Loncar were not statements against interest, as alleged by the State, because they were statements against the interests of the Defendant and not those of Loncar. The Defendant then asserts the statements made by Loncar were testimonial in nature; thus, falling under the purview of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Louisiana Code of Evidence Article 804 provides, in pertinent part, as follows:

B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

In State v. Burns, 32,904, pp. 8-9 (La.App. 2 Cir. 2/1/00), 750 So.2d 505, 511, the second circuit discussed statements against interest as follows:

The Louisiana Supreme Court has recognized an exception to the hearsay rule for statements made against the declarant’s own penal interest. State v. Gilmore, 332 So.2d 789 (La.1976). Third-party testimony concerning such statements is allowed when the declar-ant himself is unavailable to testify. State v. Hudson, 361 So.2d 858 (La.1978). In order for such statements to be admissible, however, there must be indications that the statements are truly reliable. State v. Rushing, 464 So.2d 268 (La.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986). In Rushing, the court stated that the assumption is that a person would not normally admit to the commission of a crime if it were not true, but unless the statement is truly against the declarant’s penal interest, its reliability is suspect.

In State v. Lucky, 96-1687 (La.4/13/99), 750 So.2d 801, the Louisiana Supreme Court stated:

Moreover, the hearsay exception for declarations against penal interest “does not allow admission of | finon-self-inculpa-tory statements by accomplices, even if they are made within a broader narrative that is generally self-inculpatory.” Williamson v. United States, 512 U.S. 594, 600-01, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). Accordingly, only the self-inculpatory parts of an accomplice’s confession should be admitted.

Loncar was considered unavailable, pursuant to La.Code Evid. art. 804(A)(1), because he invoked his Fifth Amendment privilege against self-incrimination and refused to testify. State v. Alexander, 03-167 (La.App. 3 Cir. 9/10/03), 854 So.2d 456. The statements made by Loncar to Freeman and Mapp were against his interest, as he indicated he was involved in the beating and robbing of Cupstid and was present when Cupstid was run over and shot. The statements made by Loncar were statements against his , interest and Loncar was unavailable to testify, thus Loncar’s statements to Freeman and Mapp were admissible under Article 804(B)(3) as. statements against interest.

Defendant also asserts the testimony of Freeman and Mapp was inadmissible because it fell under the purview of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which bars the use of testimonial out-of-court statements at trial unless the witness is unavailable and the defendant had an opportunity to cross-examine that witness. In Crawford, the Supreme Court stated that its ruling applied to testimonial evidence, which applied, at a minimum, to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.

The statements made by Loncar to Freeman and Mapp are not considered testimony at a preliminary hearing, before a grand jury, or at a former trial nor statements made during police interrogation. As noted in State v. Miller, 95 Conn. App. 362, 896 A.2d 844 (2006), cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006), the statements at issue are the sort of remarks to an acquaintance that the Crawford court proclaimed to be nontestimonial. The court in Miller, went on to |7state that “[t]he courts of this land, both federal and state, are in agreement that statements made to friends in unofficial settings do not constitute testimonial hearsay.” Id. at 384, 896 A.2d 844 (citations omitted). Accordingly, we find that the statements made by Loncar to Freeman and Mapp are non-testimonial, and their admission did not violate the ruling in Crawford. Therefore, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant contends the trial court erred when it denied his motion for mistrial when the victim’s father made accusations in the form of an outburst that consequently disrupted the court proceedings.

The following occurred during the testimony of Bobby Beard:

Q. Any conversations or any statements by these two individuals?
A. When they walked in, Joe said, “You’re a crazy mother f — er,” or something like that and Jason said, “I’m a real mother f — er, boy,” and went on. I just kept laying on the couch.
UNIDENTIFIED SPEAKER:
I’m sure he knows what he was.
THE COURT:
All right. Sir — you have to remove this gentleman.
MR. MESSINA:'
Your Honor, can we approach?
THE COURT:
Surely.
UNIDENTIFIED SPEAKER:
He’s really an animal.
THE COURT:
Sir.
|SUNIDENTIFIED SPEAKER:
(Inaudible)
THE COURT:
All right. Remove that gentleman too. There will be no demonstrations made. Remove the gentleman in the checkered shirt, not to come back in. The other gentleman either and anybody else that wants to leave. We’ll have no outbursts in the courtroom. I want both those gentlemen held.
Ladies and gentlemen of the jury, totally disregard anything that is not evidence that has nothing to do with this trial. The Court will deal with that in another venue. Carry on, Mr. Burget.

Defense counsel subsequently moved for a mistrial. The parties then stipulated that the victim’s father was the man who made the initial outburst. Then, Defendant’s father responded with his own outburst. The trial court offered to poll the jury, if the parties agreed. The parties did not ask for the jury to be polled; thus, the trial court denied the motion.

“Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial.” La.C.Cr.P. art. 775. Mistrial is a drastic remedy, and is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial. State v. Bates, 495 So.2d 1262 (La.1986); State v. Wingo, 457 So.2d 1159 (La.1984). The determination of whether actual prejudice has occurred, and thus whether a mistrial is warranted, lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion. State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272; Wingo, 457 So.2d at 1166.

State v. Wessinger, 98-1234, p. 24 (La.5/28/99), 736 So.2d 162, 183, cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999), superceded by statute on other grounds.

Defendant argues the unexpected outburst prejudiced him and the trial court’s instruction to ignore the outburst did not undo that prejudice. He also alleges the statements made by the victim’s father indicated how he felt about Defendant and | nimplied his opinion regarding Defendant’s guilt.

In Wessinger, 736 So.2d 162, the defendant argued the trial court erred when it declined to declare a mistrial when the victim’s mother broke out into tears after the victim’s sweater was introduced into evidence and when there was an outburst in the courtroom after the tape of the victim’s 911 call was played for the jury. Upon hearing the tape of his daughter’s last moments, the victim’s father shouted out “son of a bitch.” Id. at 183. The defendant then moved for a mistrial, which was denied. The supreme court found the trial court had not abused its vast discretion in denying the mistrial. Additionally, the defendant did not demonstrate how these outbursts could have prejudiced him to such a degree that a mistrial was warranted. The court then stated the following: “Again, we must credit the jurors with the good sense and fair-mindedness to see these outbursts for what they were, the natural and irrelevant expression of human emotion, and not let the outbursts influence their decision on defendant’s penalty.” Id.

Based on the supreme court’s decision in Wessinger and the fact the trial court instructed the jury to disregard the outbursts, we find the trial court did not abuse its discretion in denying Defendant’s motion for mistrial. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, Defendant contends the trial court erred in allowing the State to permit Investigator Jimmy Darden to testify as an expert without being tendered as such.

In brief to this court, Defendant argues Darden offered testimony without being tendered as an expert witness. Specifically, Darden testified it was “physically impossible” for the evidence to corroborate Defendant’s testimony. Darden also hntestified as to the victim’s state of mind and he testified as to what he believed occurred on the night in question. Defendant asserts that each of these statements are Darden’s opinion.

Defendant cites La.Code Evid. art. 701, which states that if a witness is not testifying as an expert, his testimony is limited to opinions that are rationally based on the perception of the witness and are helpful to a clear understanding of his testimony or the determination of a fact at issue. Defendant argues Darden should not have been allowed to testify regarding the Defendant’s credibility or to the placement of the body. Additionally, he urges Darden was not eligible to testify as to the sequence of events because those facts were unknown. Defendant then asserts that Darden testified as to the order of events stating, “[h]e was hit by the vehicle first.” Additionally, Darden testified about whether Defendant was truthful. Defendant states that pursuant to La.Code Evid. art. 704 an expert witness shall not express an opinion as to the guilt or innocence of the accused. Defendant further argues since Darden was not qualified as an expert, yet was treated as one by the Court, his opinions concerning the guilt or innocence of the Defendant should not be allowed. By testifying as to what he believed to have happened on the night in question, “Darden approaches that exact opinion through his assessment of the scene and of Short’s credibility.”

Lastly, Defendant argues Darden could not extrinsically attack his credibility pursuant to La.Code Evid. art. 607, since Dar-den went beyond the inconsistent statements made by the Defendant and focused on “other aspects of Short’s statement to which Darden was not privy to as a lay witness.”

Physical Impossibility

During his testimony, Darden testified as follows: “That’s where the damage |nis done. There’s no way that he’s going to strike him and put all the evidence in this ditch. It’s physically impossible. I have, we, there’s no one that will concur with that.” We note that defense counsel did not object to Darden’s testimony. Thus, Defendant waived his right to seek review of the issue based on his lack of contemporaneous objection. La.Code Crim.P. art. 841. Therefore, the issue is not properly before this court.

Sequence of Events

The Defendant asserts Darden improperly testified as to the order of events and quotes the following: “He was hit by the vehicle first.” At trial, Darden was asked the following:

Q. Through your investigations, interviews with other suspects, did you make a determination of whether the robbery occurred first or rather the striking of Mr. Cupstid occurred first, through what you discerned through witnesses and conversation, statements?
A. He was hit by the vehicle first.

There was no objection following this testimony. Accordingly, Defendant waived his right to seek review of the issue based on his lack of contemporaneous objection under La.Code Crim.P. art. 841, and the issue is not properly before the court.

State of Mind

Defendant asserts that Darden testified as to the state of mind of the victim. The page numbers cited by the Defendant in regard to this testimony are incorrect, and our review of the record does not indicate that Darden testified as to the victim’s state of mind.

Credibility

Defendant next asserts that Darden should not have been allowed to testify regarding Defendant’s credibility. Darden did discuss Defendant’s truthfulness several times during his testimony. The trial court sustained Defendant’s objections | ^concerning his truthfulness, stating “I think he can testify to what he saw and that sort of thing. But I’m not going to allow him to give a conclusion about the truthfulness of something of that particular one focused question.”

Defendant also cites particular pages of the trial transcript in support of this claim; however, there is no testimony on the referenced pages wherein Darden commented on his credibility. Defendant has not properly pointed out what additional testimony he wants this court to review; therefore, we decline to further address his complaints. Uniform Rules — Courts of Appeal, Rule 2-12.4.

Events that Occurred

Defendant contends Darden was improperly allowed to testify as to what he believed occurred on the night in question. When Darden began to testify as to what he thought occurred on that night, defense counsel objected on the basis that Dar-den’s testimony called for speculation. The State then asserted that Darden was talking about what he thought happened. The objection was overruled.

Louisiana Code of Evidence Article 701 discusses the admissibility of opinion testimony from lay witnesses, as follows:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Based on Article 701, it was permissible for Darden to give his opinion as a lay witness, if his opinion was based on his perceptions of the scene and was helpful to a clear understanding of his testimony or a fact at issue. “A law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert.” State v. Gibson, 97-108, p. 5 (La.App. 3 Cir. 4/30/97), 693 So.2d 286, 291, citing State v. Lowery, 609 So.2d 1125, 1128 (La.App. 2 Cir.1992), writ denied, 617 So.2d 905 (La.1993). Defendant’s objection at trial was based solely on the fact that Darden was testifying as to “the way he thinks it happened” and not on the basis that he was testifying as an expert and had not been qualified as such. Defendant did not object on the grounds that Darden failed to set forth what personal observations he based his testimony. Darden was the investigating officer, and therefore, we find that his “thoughts” and conclusions resulted from his observations and evidence gathered at the scene. Accordingly, this assignment lacks merit.

DECREE

For the foregoing reasons, Defendant’s conviction is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Biyare HENDERSON, Appellant.
    No. 42,204-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 2007.

      William Jarred Franklin, for Appellant.
    Paul Joseph Carmouche, District Attorney, Tommy Jan Johnson, Lea R. Hall, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

hBiyare Henderson was convicted of two counts of armed robbery with a firearm and sentenced to 20 years on each count, plus the five-year firearm-sentencing enhancement on each count. The court ordered each five-year term to be served consecutively with each 20-year sentence, for a total of 25 years per count at hard labor, without benefit of probation, parole, or suspension of sentence. Each 25-year sentence was ordered to be served concurrently with the other. The defendant appeals. We affirm.

FACTS

On May 13, 2005, Bobby Cane and the defendant robbed a customer and the personnel at Johnny’s Pizza, located on Gilbert Avenue in Shreveport. As a former employee of the business, the defendant knew the layout and also knew the manager, Juan Dickson. Cane and the defendant, both armed, wore bandanas and hoods to cover their faces. A patron, Janis Summers, attempted to exit the restaurant. Cane grabbed her, brought her back into the store, then forcefully took her purse, after a struggle.

The defendant made his way to the back of the pizza parlor to Dickson’s office by pushing a gun into Dickson’s back, moving him along into the office. Once inside the office and without prompting, Dickson knelt to open the safe.

Cane and the defendant fled with approximately $6,500 from the safe. Police quickly responded to the scene, promptly apprehending Cane, who gave up the defendant by:

• admitting his involvement in the robbery; and
12* implicating the defendant in the crime.

An arrest warrant was issued for the defendant, who was arrested on June 15, 2005, after a foot chase with the police.

Cane and the defendant were both charged with two counts of armed robbery with a firearm (La. R.S. 14:64, La. R.S. 14:64.3). In exchange for his testimony against the defendant, Cane agreed to plead guilty to one count of first degree robbery.

After a jury trial, the defendant was convicted of both armed robbery counts and sentenced as noted above.

DISCUSSION

Sufficiency

The defendant argues that:
• the state failed to exclude every reasonable hypothesis of innocence;
• the evidence was insufficient to prove he was the person who committed the armed robberies of Janis Summers and Juan Dickson, who could not identify him despite the fact that the defendant had been previously employed at the restaurant for six to seven months;
• Danny Duddy, a crime scene investigator and expert witness for the state, examined the pistol used in the robbery and could not match Henderson’s prints on the weapon, or anywhere else in the pizza parlor;
• the only connection between this defendant and the robbery of Dickson was the testimony of Bobby Cane, whose testimony should be viewed with suspicion because Cane received a sweet plea bargain in exchange for his testimony;
• the state failed to prove that he robbed or was a principal to the robbery of Janis Summers because of Cane’s testimony that he and the defendant never planned to rob any customers.
hThe state responds that:
• the facts demonstrate that a robbery took place at Johnny’s Pizza, firearms were used, and the defendant was identified as one of the robbers;
• Cane and the defendant gave statements to the police in which they each admitted their participation in the incident; and
• in the absence of conflicting testimony, the attacks on Cane’s credibility do not warrant a reversal of the defendant’s convictions.

Our law on sufficiency is well settled.

The evidence is crystal-clear and overwhelmingly sufficient to support a conviction for the armed robbery of Juan Dickson, who testified that:

• upon entering the restaurant, two robbers wearing hooded sweatshirts and bandanas on their faces yelled, “Don’t move! This is a robbery!”;
• one of the robbers walked directly to the back of the restaurant (where Dickson was located) to gain access to the safe;
• while he (Dickson) knelt on the floor to open the safe, the robber pointed a gun at his head and retrieved approximately $6,500 from the safe; and
• a robber who was a former employee of Johnny’s Pizza would have been knowledgeable as to the safe’s location.

^Clifford Baldwin, another employee of Johnny’s Pizza, testified at trial that:

• one of the robbers, armed with a revolver, walked through the kitchen and took the manager to the back of the restaurant; and
• he (Baldwin) could not see the other robber in the front of the restaurant because his view was blocked.

Bobby Cane testified that it was the defendant’s plan to rob the restaurant. He also testified that the defendant secured the two guns used in the robbery, and that they rode the defendant’s bike to the restaurant.

SPD Detective Rod Demery testified that during an interrogation, the defendant admitted:

• to being present at the robbery;
• that the robbery was Cane’s idea;
• to having a gun and going to the back of the store to get money; and
• that he got the money from an individual named “Juan.”

When viewed in the light most favorable to the prosecution, the evidence supports the jury’s finding that the defendant was guilty, beyond a reasonable doubt, of the armed robbery of Juan Dickson.

Since the defendant did not directly commit the act of robbing Janis Summers, the question turns upon whether he was guilty of acting as a principal to her armed robbery. Pursuant to La. R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

| sOnly those persons who knowingly participate in the planning or execution of a crime are principals. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427; State v. Tolliver, 35,930 (La.App.2d Cir.5/8/02), 818 So.2d 310. Mere presence at the scene is not enough to “concern” an individual in the commission of the offense. State v. Pierre, supra; State v. Knowles, 392 So.2d 651(La.1980). An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Pierre, supra; State v. Holmes, 388 So.2d 722 (La.1980).

The evidence, when viewed in the light most favorable to the prosecution, supports the jury’s finding that the defendant was guilty, beyond a reasonable doubt, of acting as a principal to the robbery of Janis Summers. The defendant’s bicycle was used to transport Cane and the defendant to Johnny’s Pizza. The defendant was armed and present at the time of the crime and was aware of the fact that Summers was being robbed by Cane. He saw Cane snatch Summers’s purse, and he neither said nor did anything to prevent it. Furthermore, Cane testified that the defendant planned the robbery and procured two guns to carry out the crime. We find that the evidence was sufficient for the jury to conclude that the defendant was a principal in the armed robbery of Summers.

jExcessiveness

The defendant argues that:

• the sentences imposed are excessive in light of the defendant’s youth and his previous attempts to obtain treatment at Caddo Correctional Center (CCC);
| s* while a juvenile at CCC, he had no disciplinary infractions and was enrolled in the Change the World Program, one lesson of which recommends acknowledging crimes, but the court used that against him as support for the excessive sentences imposed, and not as mitigating factors;
• the trial court failed to adequately consider his family history and other factors in the imposition of the sentences;
• the sentences shock the sense of justice and should be substantially reduced.

The state responds that:

• the sentences were not excessive;
• the court carefully considered the factors outlined for sentencing in La. C. Cr. P. art 894.1;
• the defendant pointed a gun to Juan Dickson’s head during the commission of the crime and attempted to avoid arrest by the police;
• the trial court took the defendant’s lengthy juvenile record and his combative relationship with his mother into consideration at sentencing; and
• the trial court acted in accordance with the law and carefully weighed all the circumstances necessary to particularize the sentences to the defendant.

Our law on review for excessiveness of sentencing is clear.

17The trial court more than adequately complied with La. C. Cr. P. art. 894.1 in imposing these sentences. The court considered the mitigating factors present, including that:

• he was reared without a father;
• he could not read and was a candidate for special education;
• he had previously been employed at Johnny’s Pizza and Brookshires, and was attempting to make positive changes in his life;
• he was only 17 years old at the time of the crime;
• he had no infractions while at CCC; and
• the defendant’s brother sees some good in him, as shown by his testimony at the sentencing hearing, which requested mercy.

On the other hand, there were many aggravating factors, including:

• defendant’s extensive juvenile record;
• that defendant pointed the gun at the manager’s head as he struggled to open the safe;
• that the restaurant sustained a significant economic loss and was never reimbursed; and
• the police had to use physical force to restrain the defendant before he could be taken into custody.

Given the circumstances here, a 25-year sentence (approximately one-fourth of his maximum exposure) does not shock the sense of justice. Taking into consideration the defendant’s juvenile record and his callousness toward Dickson’s life, these sentences are not grossly disproportionate to the crime.

|sOn this record, there is no constitutional error. There is no showing of an abuse of the district court’s discretion in imposing these sentences.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

      . Except, of course, for the firearm, now pointed at his head.

      . Cane originally faced a sentencing range of 15 to 104 years on each count, but after pleading guilty to one count of first degree robbery, he faced three to 40 years.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating and mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
      Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

      A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.


author: PICKETT, Judge. THIBODEAUX, Chief Judge,

text:
    Eugene BELLARD v. AMERICAN CENTRAL INS. CO., et al.
    No. 06-958.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Frederick L. Cappel Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Secondary Defendant/Appellant: Trinity Universal Insurance Co. of Kansas, Inc.
    Gregory Paul Allen Marceaux, Mar-ceaux Law Firm, L.L.C., Lake Charles, LA, for Plaintiff/Appellant: Eugene Bel-lard
    Travis Louis Bourgeois, Degan, Blanchard <& Nash, New Orleans, LA, for Secondary Defendant/Appellant: Trinity Universal Insurance Co. of Kansas, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, OSWALD A. DECUIR, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

liThe plaintiff/appellant, Eugene Bellard (Bellard), sustained personal injuries in an on-the-job traffic accident, when he was rear-ended by an underinsured motorist, Katie Gayle (Gayle). After settling with Gayle and her liability insurer, American Central Insurance Company, Bellard proceed to trial where he sought damages from his employer’s uninsured motorist (UM) carrier, Trinity Universal Insurance Company of Kansas, Inc. (Trinity). On appeal, Bellard seeks a reversal of the trial court’s grant of Trinity’s motion for summary judgment, which provided Trinity with a credit for the workers’ compensation medical benefits that had been paid by Bellard’s employer on his behalf. Bellard also seeks a increase in the trial court’s awards for general damages and loss of future earning capacity, arguing that the trial court committed legal error in setting those awards because it improperly disregarded uncontested, expert witness testimony regarding the causation of his injuries and his resulting disability. Trinity, likewise, seeks a reversal of the loss of earning capacity award. It asserts an entitlement to the reduction of that award based on its claim that the trial court erred in failing to grant it a credit in the amount of the indemnity disability benefits already paid to Bellard by his employer’s workers’ compensation insurer.

We conclude that the UM insurer, Trinity, is not entitled to a credit for medical costs paid by the workers’ compensation insurer, nor is Trinity entitled to a credit for the indemnity disability benefits paid by the workers’ compensation insurer, since these insurers are not solidary obli-gors, and the collateral source doctrine prohibits Trinity from receiving a credit for these payments. Further, as to the issues of causation and injuries, we find no legal error as we, as did the trial court, find that there was evidence contesting the causation of his injuries and his resulting disability. |2We affirm the awards of general damages and loss of future earning capacity. We also affirm the award of medical costs in the amount of $334,040.60.

ISSUES

1. Is an uninsured motorist carrier entitled to a credit for medical and disability wage benefits paid to, or on behalf of, an injured worker by a workers’ compensation carrier?
2. Did the trial court improperly disregard uncontested, expert medical testimony when determining the cause of the plaintiffs injuries and his subsequent disability status?
3. Did the trial court abuse its discretion in setting the general damage and future loss of earning capacity awards?

FACTS

On August 26, 2002, Bellard was rear-ended by Katie Gayle. He was also involved in two subsequent accidents — one on November 24, 2002, and the other in November or December 2003. At the time of the accident at issue, Bellard was a delivery driver for a building materials retailer, Builders Sav-Mor, Inc. (Sav-Mor), and was on-duty and driving his employer’s Ford F-250 pickup truck. Bel-lard was stopped, yielding to oncoming traffic and, upon beginning a left-turn, was struck as Gayle’s car hydroplaned into the rear of the truck. Gayle estimated that she was driving at a rate of speed between twenty and twenty-five miles per hour, and Bellard estimated that his rate of speed was approximately ten or fifteen miles per hour at the time of impact.

Gayle’s car struck the “Tommygate” (a brand name of a heavy-duty-steel mechanized tailgate that can be lowered and raised for loading and unloading cargo) on the rear of the track and came to rest under the tailgate. According to Gayle, the | ¡¡lift gate fell onto the hood of her car, her front and passenger side windows shattered, and her air bag deployed. Her car was not driveable and was towed from the scene; it was ultimately rendered a total loss. The truck driven by Bellard was never incapacitated by the accident, suffered almost imperceptible damage to the lift gate, and has remained in use by Sav-Mor without the necessity of any repairs.

Gayle suffered minor injuries as a result of the accident — bruising on her knees and bruises caused by her seat belt and air .bag. Bellard refused medical treatment twice on the day of the accident — at the scene and upon return to his work site. He continued working that day and for approximately two weeks thereafter until September 3, 2002, when he sought treatment for generalized pain in his body at a local emergency room. He later testified that he had begun to experience pain even earlier — about five days after the accident. Over the next three years, Bellard received physical therapy, chiropractic, and orthopedic treatment for the injuries allegedly sustained in the August accident.

After a course of conservative treatment over the year and a half following the crash, Bellard underwent the first of a series of four surgeries to repair lumbar and cervical spine injuries and bilateral carpal tunnel syndrome. Specifically, in March, 2004, he underwent lumbar spine surgery, which included a facetectomy, dis-kectomy, and fusion at L5-S1. In early 2005, he underwent bilateral carpal tunnel surgeries, and later that year underwent cervical spine surgery, consisting of a three-level diskectomy and fusion at C3-C4, C4-C5, and C5-C6. The lumbar surgery and carpal tunnel release surgeries were deemed successful. As of the commencement of trial, Bellard remained under the care of his treating orthopedist and surgeon, Dr. Dale Bernauer, as he was still recovering from the September 2005, cervical spine surgery.

14BelIard’s pre-accident medical condition was an issue at trial, as was the fact that he was involved in two additional accidents after the August 2002, rear-end collision. Regarding his pre-existing medical condition, the record shows that he had been diagnosed in 1998 with a small disc bulge at L5-S1, and that he had received successful, conservative treatment for lower back pain caused by that condition until 1999. It is likewise undisputed that Bel-lard sought treatment for low back pain prior to the August accident at W.O. Moss Regional Hospital in October 2000, January 2001, and January 2002. However, Bellard testified that he sought those treatments for what he believed was an apparent strained muscle that had been causing him pain intermittently.

Notwithstanding these indications of a pre-existing lumbar spine injury, his medical history conversely showed that upon being hired by Sav-Mor in February 2002, he underwent a physical examination which included a neurological examination and an examination of the neck, all resulting in normal findings. Also, his employer’s representative testified at trial that during Bellard’s ten-month tenure there, as a warehouse delivery driver, he was able to perform the physically demanding job without any apparent difficulty. This job regularly included loading and unloading building materials and performing various manual labor duties. Dr. Dale Ber-nauer, who was aware of this pre-existing medical and work history, opined that the ruptured disc in Bellard’s lower back, which he determined was larger than it had been in 1998, was likely caused and/or aggravated by the August 26, 2002, accident.

Regarding the two automobile accidents that occurred later, the record reflects that almost three months after Bellard was rear-ended by Gayle, on November 24, |fi2002, he drove his car into a telephone poll in a self-described suicide attempt. He testified that the car was a total loss and that the impact was “very hard” and “whipped” him forward and back. Bellard stated that he did not seek medical treatment for physical injuries immediately after the November accident. Rather, on November 26, 2002, a few days later, he sought treatment for depression and was admitted for one week for psychiatric treatment at Lake Charles Memorial Hospital. Bellard testified that he was depressed due to debt, unemployment, and chronic pain, which he attributed to the car accident with Gayle. After that accident, Bellard’s medical records from his treating orthopedist, Dr. Bernauer, note that Bel-lard reported an increase in his pain, but that he claimed no new injuries.

The third accident occurred about a year later, in late November or early December, 2003, when Bellard, traveling at a speed of about thirty-five miles per hour, ran a stop sign and broad-sided another car. He testified at trial that the impact was also “hard” and that the front end of his Ford Ranger suffered extensive damage, rendering it a total loss. Again, he denied suffering any injuries in that accident. Although both accidents occurred prior to Bellard’s surgeries, Dr. Bernauer testified that, in his opinion, all of Bellard’s injuries were caused by the first accident with Gayle and not the subsequent accidents. The trial court questioned that conclusion.

It was established at trial that Dr. Ber-nauer’s preliminary diagnoses of the herniated lumbar disc, carpal tunnel syndrome, and a neck injury were all made at his first evaluation of Bellard, which took place on September 25, 2002. However, the diagnostic tests, an MRI and EMG, which confirmed these conditions, were not taken until February 2003, after the second accident had occurred. Despite the additional accidents, Dr. Bernauer testified that Bel-lard’s symptoms and complaints had not lfichanged since the first accident, leaving him with the opinion that the first accident likely caused the injuries and/or aggravated pre-existing ones.

Bellard has not worked since September 2002, with the approval of his physician. At the time of trial, he had not yet been released to return to work. Dr. Bernauer, at the time of his deposition on February 13, 2006, had reached the conclusion that Bellard was functionally disabled, explaining that Bellard was susceptible to adjustment segment syndrome, a condition affecting twenty-five percent of persons with lumbar and/or cervical fusions. He testified that the condition causes additional pressure to be placed on the discs above and below those that have been fused, which could cause further injury and the need for corrective surgery. He believed that Bellard was particularly susceptible because of the multiple fusions he had undergone and that the syndrome would be less likely to occur if Bellard did not return to work. Dr. Bernauer opined that, ultimately, he did not anticipate Bellard being able to return to the workforce in his prior capacity, but stated that another functional capacity examination (FCE) could be done in approximately three months to gauge his ability to return to work in some capacity. He also testified that he believed Bellard would need medical care for another three years.

The only FCE which had been performed on Bellard, on June 22, 2004, was done approximately two years prior to trial. Only the lumbar surgery had been performed at that time. The report, issued by vocational rehabilitation specialist, Dr. John Grimes, concluded that Bellard was temporarily, totally disabled based on the light duty limitations that had been placed on him by Dr. Bernauer. At that time, Dr. Grimes believed that, depending on Bellard’s future medical treatment and residual functional capacity, he had an excellent potential for returning to the workforce if 17retrained. This was because he found that Bellard possessed average intellectual capacity and exhibited “impressive academic skills,” considering that he only had a formal ninth grade education. Dr. Grimes believed that Bellard possessed satisfactory skills that would enable him to achieve a GED within a few months and complete additional technical/associate level training, all of which would reduce his loss of access to the workforce, a history of which consisted primarily of manual labor type jobs. Dr. Grimes opined that this retraining could be accomplished during an eighteen to twenty-one month period. The record reflects that this report was admitted at trial as evidence of Bellard’s disability status. There was no updated vocational rehabilitation report presented at trial after the subsequent bilateral carpal tunnel and cervical surgeries were performed. However, the record reflects that the plaintiff had a full recovery from both surgeries and was experiencing no adverse symptoms.

The bench trial of this matter occurred on February 22-23, 2006. Prior to trial, Bellard settled with the negligent driver, Gayle, and her insurer, for her liability policy limit of $50,000.00, and voluntarily dismissed them from the action. He then proceeded to trial against Trinity for UM benefits. As of the date of trial, Bellard, who had been employed at a rate of $6.50 per hour at the time of the accident, had received workers’ compensation medical benefits in the amount of $334,040.60, and workers’ compensation disability benefits, totaling of $37,991.00, at a weekly rate of $273.14.

Prior to the commencement of the trial, the court, in a nine-page ruling, granted a motion for summary judgment that had been filed by Trinity, which sought a credit for all workers’ compensation medical benefits that Bellard had received. The trial Iscourt found that Trinity was entitled to the credit because it was solidarily liable with the workers’ compensation insurer for Bellard’s injuries. Also, the court concluded that Bellard could not be compensated twice for the same category of damages under Louisiana law. The ruling was silent as to whether a credit would also be granted for the workers’ compensation disability benefits that had already been paid to Bellard. Consequently, Trinity’s request on this issue was rejected.

In March 2006, after having taken the matter under advisement, the court rendered its ruling on damages. The court stated that its decision was influenced by the testimony of Gayle’s mother, Rhonda Allison (a police officer who was off-duty at the time of the accident, but responded anyway), during which she stated that at the scene of the accident Bellard told her that he did not even realize that he had been hit until he looked in his rearview mirror and saw smoke coming from Gayle’s car. Also, the court focused on evidence of the minor damage suffered by the truck being driven by Bellard at the time, recalling that the evidence showed that the truck was driven from the scene and that no repairs to the truck had even been deemed necessary by Bellard’s employer after the accident. The court further noted the delay of approximately one week before Bellard sought medical treatment, as well as the occurrence of two additional accidents after the rear-end collision, both of which were, by the plaintiffs own testimony, significantly more severe than the accident at issue.

Clearly, the trial judge was torn between, and grappled with, seemingly irreconcilable emotions on the question of causation. On the one hand, he expressed suspicions over Bellard’s alleged lack of injury in the two subsequent accidents. Yet, he was faced with the testimony of the treating physician whose testimony was | ¡^buttressed by that of an independently-appointed physician. As explained by the trial judge:

Mr. Bellard claims that all the injuries he sustained were a result of that first accident on August 26th, 2002. And this is kind of where it gets hard for me because I have a doctor — I have Dr. Bernauer who apparently was aware of the subsequent accidents, or at least that first subsequent accident, where he testified that based on the complaints that he received prior to the second accident that — and based on his professional opinion, the type of injuries that were sustained, that those injuries and the resulting surgeries were caused by the first accident on August 26th, 2002.
Although I believe Mr. Bellard testified that on November 24th, 2002, or as a result of that November 24th, 2002 accident he did sustain — well, he says he didn’t get hurt any worse in that accident or the other accident, which I do find suspicious. I think he said he did have some increased pain as a result of that but that it subsided and went back to — at some point to pre-accident, pre-November 24th accident problems and that — and I do find some problems with that as far as the — because if we had an eggshell — you know, the proverbial egg eggshell skull person, you know, we find the plaintiff — or we take the plaintiff as we find them, you know, if he was that fragile to where he sustained those kind of injuries on August the 26th, 2002, and presumably the same fragile person would have sustained some additional injuries or some worse injuries on November 24th, 2002 and December — November or December of 2003, because those accidents — the impact seemed to be somewhat — I’ve seen in the evidence that those latter two accidents were worse as far as the impact than the first one, but I still struggle with the fact that I have a doctor that — that is indicating that he believes those matters are a result — and actually we have two doctors. Dr. Bernauer, the treating physician, testified that those — you know, that the — the injuries and the surgery were a result of the first accident and that — and we also have Dr. Foret, who although I believe Dr. Foret may not have had all the information available to him, he did testify that the carpal tunnel can be caused by trauma, which I believe the defense expert, Dr. Bernard, said it could not be. So, I mean, I think at least we have a somewhat independent doctor saying that it could be. But then the question is: Was it from the first accident or the second or the third?
So, and I don’t know if I’m laying all this stuff out as to why I’ve struggled with this as much as I have, but that’s— I do see some problems and — with everything that I have seen, but I’ve got to — but I’ve got to — I mean, I’m certainly not an expert, but I still have problems believing that Mr. Bellard is totally disabled as a result of everything that’s happened. It’s hard for me to accept that.

|inThe court then awarded Bellard $62,422.00 for his pre-trial loss of earning capacity and $29,822.00 for loss of future earning capacity, which constitutes a total loss of earning capacity award of $92,244.00. The loss of future earning capacity award assumes that Bellard will be retrained and back in the workforce twenty months post-trial. These figures represent the amounts calculated by the defense’s expert economist, Dr. R. Douglas Womack, who took into account the findings stated in the functional capacity evaluation report issued by Dr. Grimes some two years earlier.

The trial court also awarded $50,000.00 in general damages, stating that this amount took into consideration Bellard’s out-of-court settlement with Gayle and her insurer for $50,000.00. The court awarded medical costs to Bellard but also awarded a corresponding credit for the total medical costs accrued, in the amount of $334,040.60, to Trinity. Accordingly, the trial court’s total award to Bellard was $142,244.00.

LAW AND DISCUSSION

UM Insurer Entitlement to Credit for Workers’ Compensation Benefits Paid

Bellard contends that the motion for summary judgment, which granted to Trinity a credit for all workers’ compensation medical benefits paid on Bellard’s behalf, should be reversed. He argues that the ruling was incorrect because the workers’ compensation insurer and the UM insurer, Trinity, are not solidary obligors— meaning each has a separate obligation to him under the facts of this case. Moreover, he contends that the collateral source rule classically operates in this case to prohibit Trinity from receiving a credit. On the other hand, Trinity, relying on La.Civ.Code art. 1794, argues that it is a solidary obligor with the workers’ | ^compensation insurer under the facts of this case. Consequently, when one obligor satisfies the mutual obligation, the obligee (Bellard) is not entitled to seek payment of that obligation from the other solidary party. Consequently, Trinity asserts that all payments issued by the workers’ compensation carrier for medical benefits to treat Bellard’s injuries and indemnity benefits paid to Bellard for his lost earning capacity prior to trial, are resolved obligations that Bellard is prevented from again seeking recoupment.

Appellate courts undertake de novo reviews of summary judgments, applying the same criteria governing the trial court’s consideration of the motion. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991). This means that where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law,” then summary judgment is appropriate. La.Code Civ.P. art. 966(B). Moreover, a de novo review is appropriate because this issue represents a question of law.

The issue of whether a UM insurer is entitled to a credit for workers’ compensation benefits paid to an injured worker hinges on whether the insurers meet the definition of solidary obligors and whether or not the collateral source rule applies. This analytical framework flows from Civil Code article 1794 which states that “[a]n obligation is solidary for obligors when each obligor is liable for the whole performance[,]” and that “[a] performance rendered by one of the solidary obligors relieves the others of liability toward the obligee.” On the other hand, the jurispru-dentially-created collateral source rule states that “a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of | ^monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution.” Bozeman v. State, 03-1016, p. 9 (La.7/2/04), 879 So.2d 692, 698. The collateral source rule operates to ensure that the injured plaintiffs award from the tortfeasor is not reduced by payments received from independent sources. Id. The goal is to prohibit the tortfeasor from ben-efitting from the plaintiffs entitlement to other benefits under the circumstances. Bozeman, 879 So.2d 692.

The issue of whether an employer’s UM insurer and workers’ compensation insurer are solidary obligors was squarely addressed by this court in Leger v. Sonnier Exterminating Co., 05-1291, (La.App. 3 Cir. 4/5/06), 926 So.2d 158, writ denied, 06-1033 (La.6/23/06), 930 So.2d 982, wherein the court stated:

Sonnier [,the plaintiffs employer,] asserts that the jurisprudential definition of solidarity does not apply to Sonnier and [the plaintiff’s] UM insurer, State Farm. We agree. Sonnier and State Farm have different obligations to Leger. Sonnier’s obligation is to provide workers’ compensation benefits; State Farm's obligation under the policy is to provide UM insurance. As stated in Viada v. A & A Machine Works, Inc., 05-210, p. 6 (La.App. 4 Cir. 6/15/05), 914 So.2d 1113, 1117:
The claim plaintiff has against each entity-his workers’ compensation claim against his employer and its insurer, on one hand, and against the UM insurer of his employer’s vehicle sounding in tort, on the other hand-arise from separate parts of Louisiana law. [Plaintiffs] claims are [against] different entities. The elements of damage to be compensated by the two insurers are not identical. For example, the UM insurer can compensate for pain and suffering, mental anguish, loss of consortium, and other items of special and general damage, that are specifically excluded from the scope of compensation under workers’ compensation jurisprudence.
Thus, the employer’s workers’ compensation carrier and UM carrier are not solidary obligors. Each is not bound for the whole. The damages for which the UM carrier may be held here are different from those for which a workers’ compensation carrier can be held.

Leger, 926 So.2d at 162. Accordingly, we find that the trial court erred in determining that the employers’ UM insurer, Trinity, and the employer’s workers’ compensation insurer are solidarily liable for Bellard’s medical expenses. They are not solidary obligors. We do find, however, that the UM insurer, Trinity, is a solidary obligor with the dismissed tortfeasor. See Hoefly v. Government Employees Insurance Co., 418 So.2d 575 (La.1982).

Accordingly, we find that the collateral source rule is applicable. Again, the rule states that, “a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution.” Bozeman, 879 So.2d at 698. An injured worker receiving workers’ compensation benefits is not excluded from receiving the protection of the collateral source rule because, as we stated in Melancon v. Lafayette Insurance Co., 05-762 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, writs denied, 06-974 (La.6/16/06), 929 So.2d 1291, 06-1293 (La.6/16/06), 929 So.2d 1293, an injured worker has, in fact, given consideration for the workers’ compensation benefits received, by waiving the right to sue his employer for damages when injured on the job. In exchange for providing those workers’ compensation benefits, the employer, in turn, receives a limit on his financial liability for any applicable injuries. Id.

Consequently, due to Bellard’s contribution to his receipt of these workers’ compensation benefits, the damages awarded cannot be considered as an illegal double recovery of damages, a concern raised by Trinity. This is because there can be no double recovery when an “injured party’s patrimony was diminished to the extent that he was forced to recover against outside sources and the diminution of 114patrimony was additional damage suffered by him.” Bozeman, 879 So.2d at 699. (Emphasis in original).

Therefore, the judgment granting the motion for summary judgment is reversed. Trinity must pay medical expenses in the amount of $334,040.60, as ordered by the trial court, without the benefit of a credit for workers’ compensation benefits paid in this amount. Applying the same reasoning, we also find that Trinity is not entitled to a credit for the wage indemnity benefits paid, to date, to Bellard in the amount of $37,991.00.

Causation and Damages

Bellard also claims that the general damage award and loss of future earning capacity award should be reversed because they contradict the evidence presented at trial. Although Bellard acknowledges that the trial court found that the August 26, 2002, accident was a cause of his injuries, Bellard speculates that the trial court committed legal error by relying on “force of impact” evidence to determine his damages. As the supreme court wisely noted in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), “it is impossible for an appellate court to judge what evidence in a particular case was given special weight by the finder of fact.” True to that notion, we cannot find sufficient evidence in the record to support the contention that the trial court erroneously relied upon the force of the August collision, or the force of the subsequent accidents, to inappropriately determine damages. Rather, the trial court recited a list of factors that influenced the decision. Although the trial court mentioned the force of the impacts of the multiple collisions, this was just one of his “problems” with the notion that the first accident caused all of the plaintiffs injuries, and the others did not, as testified to by Dr. Bernauer and Bellard. The court also |1fitook into consideration the testimony of Ms. Becky Becnel, the comptroller at Sav-Mor, who testified that on the day of the accident, when the plaintiff returned to work and reported the accident, she asked him “over and over” if he was hurt, and the plaintiff “told me no.”

Additionally, the records of the plaintiffs first visit to Dr. Bernauer, on September 25, 2002 reflect that x-rays of his neck, thoracic spine, and lumbar spine were all normal. Although Dr. Bernauer ordered an MRI and an EMG on September 25, those tests were not performed until February 2003, after the second accident, which the record established was significantly more intense than the first. Hence, the results of these tests cannot conclusively establish which accident caused the abnormalities they portray. The court, nevertheless, found that Bellard successfully carried his burden of proving the August accident was a cause of his injuries.

As referenced earlier in this opinion, Bellard suffered a cervical spine injury, resulting in three-level fusion; a lumbar spine injury, resulting in a one-level fusion; and bilateral carpal tunnel syndrome, resulting in bilateral carpal tunnel release surgeries. He also suffered emotional distress after the accident. The trial court awarded the plaintiff general damages totaling $50,000.00 and a loss of future earning capacity award of $29,822.00. In doing so, the trial court adopted the loss of earning capacity estimates provided by Trinity’s expert economist, Dr. R. Douglas Womack. The loss of future earning capacity award assumes Bellard’s ability to obtain a GED and receive successful retraining in a light-duty capacity job within twenty months of trial, as was proposed in the 2004 functional capacity evaluation report prepared by Dr. Grimes. As alluded to earlier, Dr. Grimes’ report was issued approximately two years prior to trial and prior to Bellard undergoing the bilateral l^carpal tunnel surgeries and cervical spine surgery. Also, Bellard’s treating orthopedist and surgeon, Dr. Bernauer, testified that Bellard was functionally disabled due to his susceptibility to adjustment segment syndrome and recommended that Bellard not return to work. However, Dr. Douglas A. Bernard, an orthopedic surgeon who performed an independent medical examination of the plaintiff, was of the opinion that the plaintiff appeared to be healing well and that, after he healed, Mr. Bellard would have a 12% anatomical disability rating, but that he should be able to return to the workforce and engage in “an occupation that requires lifting on a regular basis of up to 60 pounds.” Further, Dr. Bernard was of the opinion that the August 2002 accident could not have caused the plaintiffs carpal tunnel problems.

It is clear that the trial court rejected, at least, Dr. Bernauer’s testimony that Bellard was functionally disabled and unable to return to the workforce, and gave more weight to the opinion of Dr. Bernard and to that of the plaintiffs own rehabilitation expert, Dr. Grimes, who opined that the plaintiffs test results had “exceeded expectations” and that the plaintiff had an “excellent potential for return to the labor force.” The standard of appellate review is well settled:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury 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. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous— clearly wrong standard to the findings below, appellate [ 17courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations and footnote omitted).

After reviewing the record as a whole, we find no manifest error on the part of the trial court in its conclusions on the issues of causation and damages.

CONCLUSION

For the reasons stated above, the motion for summary judgment, granting Trinity a credit for medical expenses paid by Sav-Mor, Inc.’s workers’ compensation insurer, is reversed. The trial court’s award to the plaintiff, Eugene Bellard, of medical expenses in the amount of $334,040.60, is affirmed. We also find that the trial court did not err in determining that Trinity was not entitled to a credit for disability benefits paid by workers’s compensation to the plaintiff prior to trial. Finally, we affirm the trial courts awards for general damages and for loss of future earning capacity. Costs of this appeal are assessed against Trinity.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

THIBODEAUX, C.J., dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting in part.

pThe trial court was manifestly erroneous in its assessment of causation and damages. The majority compounds that error.

Bellard suffered a cervical spine injury, resulting in three-level fusion; a lumbar spine injury, resulting in a one-level fusion; and bilateral carpal tunnel syndrome, resulting in bilateral carpal tunnel release surgeries. He also suffered emotional distress after the accident. The trial court awarded the plaintiff general damages totaling $50,000.00 and a loss of future earning capacity award of $29,822.00. In doing so, the trial court adopted the loss of earning capacity estimates provided by Trinity’s expert economist, Dr. Womack. The loss of future earning capacity award assumes Bellard’s ability to obtain a GED and receive successful retraining in a light-duty capacity job within twenty months of trial, as was proposed in the 2004 functional capacity evaluation report prepared by Dr. Grimes. Dr. Grimes’ report was issued approximately two years prior to trial and prior to Bellard undergoing the bilateral carpal tunnel surgeries and cervical spine surgery. Also, Bellard’s treating orthopedist and surgeon, Dr. Bernauer, unequivocally testified that RBellard was functionally disabled due to his susceptibility to adjustment segment syndrome and recommended that Bellard not return to work.

It is clear that the trial court rejected, at least, Dr. Bernauer’s testimony that Bellard was functionally disabled and unable to return to the workforce. Dr. Ber-nauer’s opinions in this regard were not refuted by any evidence presented by Trinity. The trial court committed manifest error in failing to accept this testimony. I note that although the trial court’s decision to accept or reject expert testimony is not to be disturbed absent manifest error, the appellate court is not required to affirm the rejection of “uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles.” Mart v. Hill, 505 So.2d 1120 (La.1987).

The trial court was manifestly erroneous in seemingly placing more weight on Dr. Bernard’s testimony.

Dr. Bernard examined Mr. Bellard on one occasion for the purpose of litigation. He stated that his opinion of Bellard suffering a residual 15% anatomical impairment rating of the spine as a result of the lumbar injury only, was not meant to be indicative of his level of functional impairment, distinguishing it from a functional disability rating. This anatomical spinal impairment rating did not take into consideration the existence of a cervical spine injury as well. Also, although Dr. Bernard stated initially that if Bellard had a successful lumbar discectomy and fusion, he would place no physical limitations on him, he also acknowledged the possibility of segment adjust syndrome occurring because of the increase in pressure on the discs above and below the fused area.

IsRegarding the existence of carpal tunnel syndrome, Dr. Bernard initially testified that Bellard did not suffer from the syndrome, but recanted that statement on cross-examination, testifying that he could not say that Bellard was not suffering from carpal tunnel. This is because it was shown that he did not perform any diagnostic tests during his examination of Bel-lard that would indicate the existence of the condition and that he did not review the EMG and nerve conduction studies that confirmed the existence of bilateral carpal tunnel syndrome.

When he recanted his prior claim, he then stated that his only opinion regarding carpal tunnel was that it could not have occurred as a result of the August accident, which he initially deemed to be minor. His later testimony revealed that he possessed no knowledge of the severity of the impact of the August 2002 crash (which he later acknowledged was severe based on the approximate rate of speed Gayle may have been traveling), no knowledge of the position of Bellard’s arms or hands during the accident, nor any knowledge of any injuries possibly suffered by Bellard in the nature of internal bleeding, bruising or otherwise, which may have readily indicated injury to the relevant areas.

Regarding the cervical injuries, Dr. Bernard stated during direct examination that Bellard exhibited no objective findings of any nature during his pre-eervical surgery evaluation on September 30, 2004. However, on cross-examination Dr. Bernard testified that he did not review Bellard’s CT scan and myelogram, which are the diagnostic tools used to more accurately identify or determine the extent of spinal injuries when a physical exam and/or MRI are not clear enough. In this case, Dr. Bernard admitted that his opinion of no objective findings of cervical spine injury of any nature did not include a review of the findings shown on the CT scan and myelogram.

|4Pr. Foret, the court-appointed IME physician, reviewed the MRIs, CT scan, and myelogram of the cervical spine, and performed a physical examination of Bel-lard on June 8, 2005, which revealed spasms in the neck area. He agreed with the radiologist’s findings of disc bulging and osteophytic formation at the 3-4 through 5-6 levels and some central canal narrowing. He also agreed with Dr. Ber-nauer’s decision to proceed with surgery. He acknowledged that Bellard may have had arthritic or degenerative changes in the cervical spine preceding the accident, but did not discount the accident as an aggravating factor in his chronic pain development and subsequent development of disc bulging.

Does any of this testimony represent that which may be reasonably viewed differently, such that the trial court cannot be held manifestly erroneous in its determinations based on such? I do not think so. It is apparent to me that there was not sufficient evidence presented by the defendant to successfully discount the three injuries attributed to the first accident, the necessity for the surgeries, nor the subsequent impairment established by the plaintiff.

Consequently, I would raise the loss of future earning capacity awards to $547,994.00, representing the loss of future earning capacity determined by plaintiffs economist, Dr. Charles Bettinger, based upon Bellard’s inability to return to the workforce. I would award general damages in the amount of $250,000.00, the lowest amount which could reasonably be awarded.

For the foregoing reasons, I dissent in part.


author: SAUNDERS, Judge. AMY, J.,

text:
    Roger E. PIPER v. SHELTER MUTUAL INS. CO.
    No. CA 07-111.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Stephen E. Everett, Attorney at Law, Alexandria, LA, for Plaintiff/Appellant: Roger E. Piper.
    Michael D. Hislop, Bolen, Parker & Brenner, Alexandria, LA, for Defendant/Appellee: Shelter Mutual Ins. Co.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

_JjThis case involves an automobile accident wherein the plaintiff brought an action against his uninsured/underinsured motorist policy more than two years after the accident.

The issuer of plaintiffs UM policy moved for a dismissal based upon prescription. The trial court found that the plaintiffs claim against his UM had prescribed on the face of the pleadings and that the plaintiff had not shown that prescription had been interrupted. As such, the trial court granted the Exception of Prescription and dismissed the plaintiffs claim.

The plaintiff has appealed the trial court’s granting of this exception. We find that the plaintiff has shown that he has interrupted prescription. As such, we reverse the trial court’s granting of the UM company’s Exception of Prescription and remand the case for further proceedings. We assess all costs of this appeal to the UM company.

Reversed and remanded.

FACTS AND PROCEDURAL HISTORY:

On March 15, 2008, plaintiff, Roger E. Piper, (hereinafter “Piper”) was in an automobile accident wherein he was rear-ended by a vehicle driven by Frances Coke (hereinafter “Coke”). Coke had the permission of the owner of the vehicle, James Glenn, to drive it. The vehicle driven by Coke was insured by Safeway Insurance Company of Louisiana (hereinafter “Safeway”). Coke had seven guest passengers riding with her.

As a result of the accident, Piper, along with the seven guest passengers of Coke, asserted that they were injured. On November 7, 2003, Safeway instituted Civil Suit No. 215,146 praying for concursus relief as provided by law. Piper and Coke, in | ¡.her individual capacity, along with others, were cited as claimants in the concur-sus proceeding.

On January 13, 2004, Piper answered the concursus proceeding instituted by Safeway. In his answer, Piper asserted that the accident was the sole fault of Coke and that he has suffered damages far in excess of the funds Safeway deposited with the court. At the end of the answer Piper submitted, Piper’s counsel signed a certificate that the answer had been served upon all parties in the proceeding. All parties in the proceeding included Coke in her individual capacity.

On August 8, 2006, the concursus proceeding filed by Safeway was terminated. On August 17, 2006, Piper instituted the present suit against Shelter Mutual Insurance Company (hereinafter “Shelter”) under Piper’s Uninsured/Underinsured Motorist provision in the policy of insurance that Shelter had issued to Piper.

In response to Piper’s suit, Shelter filed a Peremptory Exception of Prescription. The trial court granted this exception and Piper has appealed. We reverse the trial court’s granting of Shelter’s exception and remand the case to the trial court for further proceedings. We assess all costs of this appeal to Shelter.

ASSIGNMENT OF ERROR:

1. Was the trial court erroneous in granting Shelter’s Peremptory Exception of Prescription?

ASSIGNMENT OF ERROR # 1:

Piper asserts that the trial judge erroneously granted Shelter’s Peremptory Exception of Prescription. Piper argues that when he answered Safeway’s Petition for Concursus and asserted his claims against Coke, in her individual capacity, she was put on notice of Piper’s claims against her and, as such, prescription was interrupted in relation to Coke and her solidarily bound obligor, Shelter. We agree.

_[£‘Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.” La.R.S. 9:5629.

“Delictual actions are subject to a libera-tive prescription on one year. This prescription commences to run from the day injury or damage is sustained.... ” La.Civ. Code art. 3492.

The party alleging that a claim has prescribed ordinarily bears the burden of proof. However, when it appears that prescription has run from the face of the pleadings, the burden of proof then shifts to the party not asserting prescription to prove that prescription has been interrupted or suspended. Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993).

“Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.” La.Civ.Code art. 3462.

“The interruption of prescription against one solidary obligor is effective against all solidary obligors and their heirs.” La.Civ. Code art. 1799.

A third party tortfeasor is solidarily bound with a claimant’s uninsured/un-derinsured insurance company for the obligation owed by them to that claimant. Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982).

Under Louisiana Law, prescription statutes are strictly construed. If there are two possible constructions, one that bars the action and one that maintains the action, |4then the construction that maintains the action should be adopted. Lima v. Schmidt, 595 So.2d 624 (La.1992); Sinegal v. Kennedy, 04-299 (La.App. 3 Cir. 9/29/04), 883 So.2d 1079.

In the case before us, Piper’s claim has prescribed on the face of the petition. The cause of action arose on March 15, 2003, yet suit was not brought against Shelter until August 17, 2006. This period of time is obviously more than the two year liberative prescription under La.R.S. 9:5629. As such, Piper bears the burden of proving that prescription has either been interrupted or suspended in some fashion in order to defeat Shelter’s exception.

Piper asserts that prescription was interrupted in relation to Shelter on January 13, 2004, when he answered Safeway’s Petition for Concursus and served his answer on Coke. Piper argues that when he answered Safeway’s petition asserting his claim against Coke, and served that answer on Coke, he interrupted prescription against Coke. Piper reasons that once prescription is interrupted against Coke, it is also interrupted against Shelter because Shelter is solidarily bound with Coke under the Hoefly case, and interruption of prescription against one solidarily bound obligor interrupts prescription against all solidarily bound obligors under La.Civ. Code art. 1799.

Shelter argues, and the trial court agreed in its ruling, that Piper failed to prove he did anything under La.Civ.Code art. 3462 to interrupt prescription in relation to Shelter. Shelter argues that Piper’s answer to Safeway’s Petition for Con-cursus cannot interrupt prescription under La.Civ.Code art. 3462 because the article specifically states that the obligee, Piper, has to commence an action against the obligor, Coke or Shelter, in order for prescription to be interrupted. Shelter argues | Bthat Piper’s answer to a petition for concursus was not the proper vehicle or within the proper context to bring his action against Coke and, therefore, Piper’s answer did not interrupt prescription in relation to Coke.

We find that this argument, and the trial court’s interpretation of La.Civ.Code art. 3462, are erroneous. According to the language of La.Civ.Code art. 3462, “[p]re-scription is interrupted ... when an obli-gee commences an action against the obli-gor, in a court of competent jurisdiction and venue.” (Emphasis added). An “action” is defined as “a civil or criminal judicial proceeding.” Black’s Law Dictionary (8th Ed.2004). An “action” is further described in Black’s Law Dictionary as “an ordinary proceeding in a court of justice, by which one party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense” by citing 1 Morris M. Estee, Estee’s Pleadings, Practice, and Forms § 3, at 1 (Carter P. Pomeroy ed., 3d ed. 1885).

When we look to the plain and ordinary language in the statute, there is no requirement that the “action” need be brought via an original petition or that the “action” be commenced in the capacity of plaintiff. An action may be brought before a court by defendants via reconventional demand, cross-claim, or otherwise. It is likewise clear that a claim brought in a concursus proceeding would constitute an “action” as defined above.

Here, Piper, as an obligee, commenced his action against Coke, as an obligor, in the 9th Judicial District Court on January 13, 2004. On this date, Piper interrupted prescription in relation to Shelter’s solidar-ily bound co-obligor, Coke. Louisiana Civil Code Article 3492 states, “[d]elictual actions are subject to a liberative prescription on one year.” The date the accident occurred was March 15, 2003. Piper, under | fiLa.Civ.Code art. 3492, had one year to bring his action against Coke. January 13, 2004, is well within that one year liber-ative prescription applicable to Coke.

Moreover, a finding that Piper has interrupted prescription against Coke is clearly consistent with the purpose of liberative prescription. Louisiana Civil Code article 3447 defines liberative prescription as “a mode of barring of actions as a result of inaction for a period of time.”

Justice Tate, in Giroir v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040, 1045 (La.1985), discussed the purpose of liberative prescription when he stated:

The fundamental purpose of prescription statutes is only to afford a defendant economic and psychological security if no claim is made timely, and to protect him from stale claims and from the loss of non-preservation of relevant proof. They are designed to protect him against lack of notification of a formal claim within the prescriptive period. (Emphasis added).

Here, Coke received a copy of Piper’s answer to Safeway’s Petition for Concur-sus as evidenced by Piper’s counsel signing the following certificate, “I hereby certify service of the above and foregoing [answer] upon all persons entitled to the same in this proceeding, this date, in a manner consistent with law.

Alexandria, Louisiana, this 13th day of January, 2004.”

Piper’s answer included a paragraph alleging that the vehicle driven by Coke struck Piper’s vehicle from behind, a paragraph wherein Piper alleged that the collision was due to the sole fault and negligence of Coke, a paragraph where the details of Piper’s injuries were outlined, and a paragraph delineating the amount of damages Piper suffered to the specific total of $276,901.41. With these paragraphs, Coke was put on notice that Piper intended to assert a claim against her for any injuries he suffered over the amount Safeway deposited with the court in the |7concursus proceedings.

As such, Coke would have suffered no psychological uncertainty nor any procedural injustice. Coke had notice to collect and preserve any evidence that tended to protect her from any claims asserted against her by Piper. Therefore, we find that prescription was interrupted in relation to Coke.

Under Hoefly, 418 So.2d 575, Shelter, as the UM of the plaintiff, and Coke, as the tortfeasor, are solidarily bound. Because Coke and Shelter are solidarily bound, La. Civ.Code art. 1799 necessitates that interruption of prescription against Coke does the same with Shelter. Therefore, we find that Piper was able to carry his burden of proof to defeat Shelter’s exception. As such, we find that the trial court erred in granting Shelter’s Exception of Prescription and remand the case for further proceedings not inconsistent with this opinion.

CONCLUSION:

The trial court dismissed Piper’s action against Shelter due to a finding that prescription had run. We find that Piper has proven that he interrupted prescription against Coke and therefore Shelter. As such, we reverse the trial court’s granting of Shelter’s Exception of Prescription and remand the case for further proceedings not inconsistent with this opinion. We assess all costs of this appeal to Shelter.

REVERSED AND REMANDED.

AMY, J., concurs in the result and assigns written reasons.

AMY, J.,

concurring in the result.

LI, too, conclude that a reversal is required. I write separately to observe that, in my opinion, an answer, generally, is not an action as contemplated by La.Civ.Code art. 3462. Rather, I believe that an answer filed in a concursus proceeding is viewed uniquely in the law in light of La. Code Civ.P. art. 4656 which provides that “[e]ach defendant in a concursus proceeding is considered as being both a plaintiff and a defendant with respect to all other parties.” See also Federal Nat. Bank & Trust Co. of Shawnee v. Calsim, Inc., 340 So.2d 611 (La.App. 4 Cir.1976), writs denied, 342 So.2d 1110, 1111 (La.1977). I find application of this specific provision of law dispositive, as it supplies a critical distinction for the answer under consideration.

I respectfully concur in the result.