text:
    STATE of Louisiana v. Ezekiel D. TOUSSAINT.
    No. 07-KA-353.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2007.
    Paul D. Connick, Jr., District Attorney, Parish of Jefferson, Terry M. Boudreaux, Laura Schneidau, Anne Wallis, Assistant District Attorneys, Gretna, LA, for plain-tiffiappellee.
    James A. Williams, Attorney at Law, Gretna, LA, for defendant/appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

^Defendant, Ezekiel D. Toussaint, appeals from his conviction for armed robbery with a firearm and his sentence to 35 years at hard labor, without benefit of parole, probation or suspension of sentence. For the reasons which follow, we affirm.

On April 7, 2005, the Jefferson Parish District Attorney’s Office filed a bill of information charging the Defendant with armed robbery using a firearm, a violation of La. R.S. 14:64 and La. R.S. 14:64.3. The Defendant pled not guilty at his arraignment. Subsequently, the Defendant filed a Motion to Suppress Confession, Identification, and Physical Evidence. The Defendant withdrew his motions to suppress the physical evidence and confession. The trial judge denied lathe motion to suppress the identification. On March 21, 2006, the Defendant filed a motion in limine, which the trial court granted. The case proceeded to trial.

At trial, the assistant general manager of the Jiffy Lube that was robbed, Shelva Davis, testified he was at the store, located at 405 Wall Boulevard, on the date of the armed robbery, March 26, 2004. He was in the office when the Defendant walked in and asked if they were hiring at the store. The Defendant walked toward Davis and gestured with his finger over his lips for Davis to remain quiet. Davis noticed immediately that the Defendant had a gun in his right hand. The Defendant pointed the gun in Davis’ face during the robbery. Davis threw the bank deposit bag from the previous day on the counter. The Defendant counted the money. The bag contained checks and approximately $248 in cash. The Defendant told Davis that he knew he had more money. Davis replied that there was no more money because they had just opened the store at 8:00 a.m. The Defendant exited the store. The robbery took a total of four to five minutes. After the Defendant left, Davis called 911.

Another Jiffy Lube employee at work on the day of the armed robbery, James Lam-arque, testified that prior to the robbery he saw a gold/tan Ford Explorer with two occupants pass the store. As they passed, both occupants looked into the store. Later, he saw two men approaching the store. The Defendant asked Lamarque where he could find the manager. Lamarque then talked to the other man, later identified as Freddie Beverly, for approximately one minute. During that time, Lamarque asked Beverly whether he was in the gold Explorer that drove past earlier. Beverly eventually responded, “yeah,” and told Lamarque that it was his cousin’s truck. After Beverly’s response, Lamarque became suspicious and 14went into the store’s lobby. Lamarque could hear the Defendant tearing open the bag containing the money. As soon as Lamarque saw the gun in the Defendant’s right hand, he left and went to the gas station next door. Beverly was no longer in front of the store when Lamarque left. Lamarque asked an employee of the gas station to call the police. Lamarque went back outside after Davis told him that the robbers had left.

When Lamarque went back to the Jiffy Lube store, Davis was on the phone with the police. Davis described the Defendant as six feet tall with a slim body-type. He stated that the Defendant wore a hooded fleece pullover with red markings on the front, possibly for a sports team, and a black baseball cap with a logo on it. Davis testified that because the Defendant’s hands were right in front of his face, he observed during the robbery that the Defendant had darker than normal fingernails. The Defendant wore nothing to hide his face except a pair of sunglasses with a yellowish tint. Davis also observed that the Defendant had a thin moustache. During the robbery, Davis saw Beverly talking to Lamarque. Beverly was wearing a grey hooded sweater. Beverly never came into the office.

Lamarque talkfed to the police during the same telephone conversation as Davis. Lamarque told the police that the two men were driving in a tan or gold-colored late model Ford Explorer. Lamarque described the Defendant as wearing yellow sunglasses and a black jacket and baseball cap. Both the jacket and the cap had white lettering on them. Lamarque described Beverly as wearing a grey sweatshirt and small sunglasses.

Officer Dave Jackson of the Jefferson Parish Sheriffs Office testified that, after being notified of the armed robbery, he followed a gold Ford Explorer that fit the description of the one involved in the armed robbery. The vehicle increased speed shortly after he began following it. Three black males were in the vehicle. | .^Officer Jackson put on his lights and sirens to warn the occupants to pull the vehicle over. However, the occupants of the vehicle ignored him and failed to stop for two stop signs. As he continued to follow, Officer Jackson saw the occupants of the Explorer taking off their shirts. Officer Jackson opined that the occupants did this to change their appearances. During the pursuit, the vehicle slowed and both passengers from the front and back seats jumped out from the vehicle’s right side. Eventually the vehicle stopped next to an apartment building. Beverly, the driver, got out and ran between the buildings of the apartment complex. He was apprehended 10 or 15 minutes later approximately 200 feet from where he abandoned the Explorer, at 1900 Faith Place.

The police took Lamarque to a location to identify the vehicle approximately 20 or 30 minutes after the robbery. Lamarque identified Beverly and the vehicle. He had no doubt about his identification of the vehicle and Beverly, even though Beverly was not wearing the sweatshirt and glasses he had worn when at Jiffy Lube earlier.

Davis was taken by patrol car to an apartment complex near Terry Parkway approximately 30 to 35 minutes after the robbery. Davis saw a gold' Ford Explorer and someone in handcuffs. Davis told the police that he could not be sure that Beverly was the person who had been outside talking to Lamarque. However, he did recognize the grey sweater on the front seat of the Explorer as the one worn by Beverly.

Detective Keith Locascio of the Jefferson Parish Sheriffs Office’s Robbery Squad testified that, after the police apprehended Beverly in connection with the armed robbery, Beverly signed a consent form allowing the police to search the Explorer. Two baseball caps were found in a search of the vehicle. Detective Locas-cio testified that during the course of his investigation he developed the name [Bof Ezekiel Toussaint, the Defendant. They performed computer checks and then a photographic lineup was compiled with the Defendant’s photograph.

Within approximately six hours of the armed robbery, Detective Masearo returned to the Jiffy Lube with the photographic lineup. Davis identified the Defendant in the photographic lineup as the man who came into the office, pointed the gun in his face, and robbed him. Davis was positive in his identification. There was no doubt in his mind. Davis also identified the Defendant in court as the man who robbed him. Detective Masearo testified that he did not inform Davis that the photographic lineup included a suspect.

After Defendant was positively identified in the photographic lineup, an arrest warrant was issued for him. Defendant was arrested, charged and tried.

After a two-day jury trial, the Defendant was found guilty as charged. The Defendant filed a motion for new trial, which the trial court denied. According to the commitment, the trial judge sentenced the defendant to 35 years at hard labor without benefit of parole, probation, or suspension of sentence. Defendant filed a motion to reconsider sentence, which the trial court denied. Defendant takes this timely appeal.

ASSIGNMENT OF ERROR NUMBER ONE

In his only assignment of error, the Defendant argues that the trial court erred by allowing the investigating detective to testify that the Defendant was identified as a suspect in the armed robbery, when that information came solely from an accomplice who was not available for cross-examination. He contends |7that this violated the Defendant’s constitutional rights guaranteed by the Confrontation Clause of the Sixth Amendment.

In his motion in limine, the Defendant had argued for and obtained a ruling that the statements made by codefendant Beverly to the police would not be admissible. The Defendant argued that since Beverly was unavailable to testify, he would not be able to confront Beverly concerning his inculpatory statements implicating him in the crime. This precluded the Defendant from having the opportunity to cross-examine Beverly, which he had not had on any prior occasion, thus rendering Beverly’s statements inadmissible. The trial court granted the motion excluding the content of the statement made by Beverly and any statements in which he accused or sought to inculpate the Defendant.

At trial, defense counsel objected when the prosecutor asked Detective Locascio, “... during the course of your investigation, did you develop the name of any other suspects in the robbery?” Defense counsel argued that it was a Crawford v. Washington violation because his name could have only come from Beverly who was unavailable , for cross-examination. The prosecutor informed the court that the detective was “going to say that the defendant’s name was developed when he was put in a lineup that was shown to the victim.” The trial judge found no problem with that statement and overruled the objection. Defense counsel claimed that it was still a confrontation violation.

|sOn appeal, the Defendant cites this Court’s decision in State v. Williams, 04-608 (La.App. 5 Cir. 11/30/04), 889 So.2d 1093, writ denied, 05-0081 (La.4/22/05), 899 So.2d 559, in support of his argument that his constitutional rights guaranteed by the Confrontation Clause of the Sixth Amendment were violated when the trial court allowed Detective Locascio to testify that his investigation led to the identity of the defendant. The Defendant also argues that the photographic lineup identification made by Davis should be excluded because it was tainted by Beverly’s unconstitutional statement identifying him.

Further, the Defendant asserts that any error in admitting Detective Locascio’s testimony about his identification as a suspect cannot be found harmless. Detective Locascio’s testimony about his identification as a suspect was neither cumulative nor duplicative of any other testimony presented by the State. The identification by Beverly was the only independent evidence tying him to the crime. Neither Davis nor Lamarque could give the police an independent basis to develop him as a suspect.

The State points out that the Defendant’s arguments lack merit for the simple reason that Beverly’s statements were not referred to or admitted into evidence at trial. The jury was never made aware that Beverly gave a statement to the police. None of the officers testified that Defendant’s photograph was placed in the lineup based on Beverly’s statement. The officers only testified that Defendant’s photograph was placed in a lineup after he was “developed” as a suspect. The State contends that Detective Locascio’s testimony was only offered to explain the course of the police investigation, i.e., why the Defendant’s photograph was placed in the photographic lineup. Therefore, Detective Locascio’s testimony was not hearsay because he did not refer to any statements 19made by someone else to prove the fact of the Defendant’s guilt or the truth of the matter asserted. The State notes that Defendant has cited no case law to show that his confrontation rights pursuant to Crawford v. Washington were violated by Detective Locascio’s testimony. The State contends even if the testimony was erroneously admitted, that it was harmless because it was cumulative and corroborative of other testimony proving the Defendant’s guilt.

The Sixth Amendment to the United States Constitution guarantees an accused the right to confront the witnesses against him in a criminal prosecution. La. Const, art. I, § 16. State v. Williams, 04-608, p. 8 (La.App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, writ denied, 05-0081 (La.4/22/05), 899 So.2d 559. The main and essential purpose of the confrontation clause is to secure for the accused the opportunity of cross-examination, since it is the principal way to test the believability and truthfulness of a witness’ testimony and to impeach or discredit a witness. Williams, 04-608 at pp. 8-9, 889 So.2d at 1100. It has been held that an error in the defendant’s right to confrontation is subject to a harmless error analysis. Williams, 04-608 at p. 11, 889 So.2d at 1102.

Williams is relied on by the defense, because this Court, after performing a Crawford v. Washington analysis, found that the Defendant’s rights had been violated. In that case, a codefendant refused to testify at Williams’ trial, asserting his Fifth Amendment privilege. Nevertheless, the eodefendant was called to the stand and his statement was essentially-admitted at trial through questions by the prosecutor, referring to what he had said in an earlier statement, while the codefen-dant repeatedly gave unresponsive answers. The defendant claimed that he was denied his right to confrontation by the trial court’s admission of a non-testifying codefendant’s confession that contained statements that implicated him. This Court found under a Crawford v. Washington analysis, that because the | ^eodefendant was effectively unavailable, by asserting his Fifth Amendment privilege and persisting in his refusal to testify concerning the subject matter of his statement, and the defense had never had an opportunity to cross examine the codefen-dant, the use of his statement implicating the defendant violated Williams’ confrontation rights.

However, we find the present case is distinguishable from Williams because Beverly’s statement was not admitted into evidence, quoted in part or referred to in any way. Although the Defendant argues that, effectively, the jury did know that the identification of the Defendant as a suspect came from Beverly because there was no other way the police could have discovered it, we disagree with this argument. There are many ways the police “develop” information, from fingerprints to community assistance. The officer’s testimony that the Defendant was “developed” as a suspect can not be logically or realistically construed to be the same as testimony that Beverly told the officer the Defendant was his accomplice. Therefore, we find, since no part of Beverly’s statement was admitted into evidence, there is no confrontation violation and no error in the trial court ruling allowing the officer to testify that the Defendant was “developed” as a suspect. The Defendant’s argument, that the officer’s testimony cannot be viewed as harmless, is moot because we find no error in the admission of the testimony.

This assignment of error lacks merit.

ERROR PATENT DISCUSSION

Defendant requests an error patent review. The record was reviewed for errors patent, according to La.C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337, (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We find no errors which required corrective action.

| T Accordingly, for the reasons set out above we affirm the Defendant’s conviction for armed robbery with a firearm and his sentence to 35 years at hard labor, without benefit of parole, probation or suspension of sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . In his motion in limine, the Defendant sought to prevent the presentation of any evidence implicating him through inculpatory statements made by his codefendant, Freddie Beverly. The Defendant claimed that because Beverly’s statements were not trustworthy, he was not going to testify at trial, and the Defendant had never had an opportunity to cross-examine him, his statements were inad-missable.

      . Detective Roger Gorumba of the Jefferson Parish Sheriff's Office testified that he corn-piled the photographic lineup using the Defendant’s picture.

      . The State filed a multiple offender bill of information alleging that the Defendant was a second felony offender. The multiple offender proceeding is not a part of this appeal. The transcript of the multiple offender proceeding is not included in the record.

      . The Defendant has attached a copy of Beverly's police statement to his brief. However, Beverly’s statement was not admitted into evidence at trial. The review of evidence attached to an appellate brief and not introduced at trial is beyond the scope of an appellate review. State v. Hotoph, 99-243, p. 29 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1053, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and 00-150 (La.6/30/00), 765 So.2d 1066. Therefore, an appellate court is precluded from considering evidence which is not part of the record. Id.

      . In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court discussed the Confrontation Clause. The Supreme Court held that "in order for a statement obtained during police interrogation to be admissible against an accused in a criminal trial, it must be shown that the declarant is unavailable and there was a prior opportunity to confront the witness." State v. Jackson, 04-1388, p. 9 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 913, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162.

      . In his brief, the Defendant mistakenly refers to this Court’s decision in State v. Williams as a Louisiana Supreme Court case.


source: Caselaw Access Project

author: GREG G. GUIDRY, Judge.

license: Public Domain

text:
    Kerry Jude LeBLANC and Annette St. Pierre LeBlanc v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Ronald Hayes. Warren St. Pierre and Carole St. Pierre v. State Of Louisiana, through the Department of Transportation and Development and Ronald Hayes.
    Nos. 07-CA-139 and 07-CA-162.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2007.

      Stephen S. Stipeleovieh, Michael J. Sa-manie, Attorneys at Law, Houma, Louisiana, For Plaintiff/Appellee.
    Charles C. Foti, Jr., Attorney General, William S. Culver, Jr., Assistant Attorney General, Louisiana Department of Justice Litigation Division, New Orleans, Louisiana, For Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

l2In this automobile accident case, the Defendant, State of Louisiana, through the Department of Transportation and Development (DOTD), appeals a jury verdict in favor of the Plaintiffs, Kerry Jude LeBlanc and Annette St. Pierre LeBlanc, for damages sustained by Kerry LeBlanc. We affirm.

In the early morning hours of December 29, 2001, Kerry LeBlanc and his father-in-law, Warren St. Pierre, were traveling eastbound on a two-lane section of Louisiana Highway 3127 (La.3127) in St. Charles Parish. Around 5:30 a.m., a van driven by the Defendant, Ronald Hays, traveling in the opposite direction, crossed the median colliding head-on with the St. Pierre vehicle. All three men were injured. The accident occurred near the intersection with Louisiana Highway 3141(La.3141), and approximately one mile from where La. 3127 changes from four to two-lanes. It was dark and foggy at the time of the impact.

| c.LeBIanc suffered catastrophic injuries in the collision. His left leg was amputated below the knee, his right leg was badly broken, and his foot and right hand were crushed.

The Plaintiffs filed suit against Hays and the DOTD for negligence. A jury trial was held on October 9, 2006, resulting in a verdict in favor of the Plaintiffs. The jury found Hayes 78% at fault and DOTD 22% at fault. It awarded the Plaintiffs a total of $3,856,337.76, with costs assessed against the Defendants. The award consisted of $1,000,000 in general damages, $550,000 for loss of enjoyment of life, $379,960.76 for past medical expenses, $1,100,000 for future medical expenses, $155,377 for lost past wages, and $471,000 for future lost wages. The jury awarded Annette St. Pierre $200,000 in loss of consortium damages.

After the award was apportioned by percentage of fault, DOTD was assessed $200,000 for general damages, $121,000 for loss of enjoyment of life, $83,591.37 for past medical expenses, $242,000 for future medical expenses, $34,182.94 for lost past wages, $103,620 for future lost wages, and $44,000 for loss of consortium.

The DOTD appealed the judgment. The Plaintiff answered the appeal.

The DOTD asserts the trial judge erred in denying its motion for directed verdict on liability because the Plaintiffs failed to prove that non-mandatory warning signs of the lanes’ transition from four to two lanes were missing at the time of the accident, that any missing signs would have contributed to the accident, or that DOTD failed to replace the allegedly missing signs in a ^reasonable period of time. DOTD further asserts that the Plaintiffs failed to prove Hays would have seen or obeyed any warning signs in any event, considering the dense fog. DOTD also asserts that the jury’s award for general damages, loss of enjoyment of life, future medical expenses, and loss of consortium was excessive.

The Plaintiffs assert that the trial judge erroneously allowed Defendant’s employee to testify regarding inadmissible documents, and that the Defendant’s percentage of fault should be increased.

LIABILITY

In actions against a public entity, the plaintiff must establish that the thing which caused the damage was in the custody of the defendant, that the thing was defective because it had a condition which created an unreasonable risk of harm, that defendant had actual or constructive notice of the defect and failed to take, corrective measures within a reasonable time, and that the defect was a cause in fact of plaintiffs injuries. La. R.S. 9:2800; Fuselier v. Matranga, 01-721, p. 5 (La.App. 5 Cir. 11/27/01), 803 So.2d 151, 154-155; writ den. 01-3393 (La.3/15/02), 811 So.2d 908; Warden v. Richoux, 06-702 p. 7 (La.App. 5 Cir. 2/27/07), 952 So.2d 828, 831.

“Constructive notice shall mean the existence of facts which infer actual knowledge.” La. R.S. 9:2800 D. Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Blount v. East Jefferson General Hosp., 04-407, p. 5 (La.App. 5 Cir. 10/12/04), 887 So.2d 535, 538; Warden, 06-702 at 7, 952 So.2d at 832.

|sThe Defendant asserts Hays had sufficient warning of the lane change because there were reflector bumps and yellow striping on the highway, and furthermore, failed to prove the warning signs were missing. Alternatively, it argues that Plaintiffs failed to prove that the missing signs caused the accident, or that they “existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury.” Blount, 04-407 at 5, 887 So.2d at 538; Warden, 952 So.2d at 832.

Hays was on his way to work the morning of the accident, traveling in the left lane on the four-lane portion of the highway. It was dark and foggy, and he was familiar with that portion of the highway. Hays traveled in the left lane focusing on the center line because of these conditions. He failed to notice when the lanes narrowed and unknowingly crossed the center line and began traveling on the wrong side of the highway.

Hays did not see cross-hatching at the lane merger. He did not notice reflector bumps along the road, or see any signs warning of the lane change. Hays testified that the fog was dense at the location of the accident, but, despite his focus on the highway’s central stripe, he would have noticed at least one sign at the merger area had there been any. He did not remember seeing a car behind or on the side of him, or notice the sign at the intersection he had just passed that instructed drivers not to pick up hitchhikers because of the nearby prison.

Ralph Borne was driving behind Hays prior to, and at the time of the accident. Borne testified that another car was traveling in the right lane alongside Hays for several miles, and was on Hays’ right side when the accident occurred. However, the car did not stop.

| (¡Borne has driven along the roadway in question 14 days a month for 25 years to and from work. He was familiar with the lane merger. He testified there were no merger signs along the highway at the time of the accident. Borne also stated that the fog was dense at the accident site, but less so at and leading up to the merger area. He was in position to see any merger warning signs had there been any. When Borne realized Hays was in the wrong lane, he tried to warn Hays by flashing his lights and honking his horn.

Warren St. Pierre’s brothers, Glenn and George St. Pierre, were following Warren St. Pierre’s vehicle on the morning of the accident. According to the three men, the fog was patchy prior to the accident, but heavy fog abruptly descended near the impact zone. Warren saw headlights coming toward him through dense fog. He unsuccessfully tried to avoid the collision.

The St. Pierre brothers were very familiar with that section of the highway. They testified that there were no warning signs or reflector bumps prior to the accident. Glenn St. Pierre further stated there were only speed limit signs and a hitchhiker warning sign. George St. Pierre added that, according to his measurements taken shortly after the collision, the distance from the merger to the point of impact was one mile.

The scene was in the same condition in January 2002 when Denise Gauthreaux, Plaintiffs sister-in-law, took photographs and video images on two different days.

Donna Reamey, a DOTD Highway Foreman II, testified that placement of most highway signs are not mandatory. This includes stop signs and merger warning signs. Although they may be recommended by the Manual on Uniform Traffic Control Devices (MUTCD), this publication is used in most states only |7as a guide. Individual states exercise discretion in placing signs according to particular needs.

Reamey is responsible for signage on state roads in seven parishes. She instructs her crews on where to place signs. Reamey spends 85% of her working time traveling the roadways in these parishes evaluating the status of signs. Most of her inspections are done in the daytime, but she inspects the signs at night once a year to evaluate their reflective ability. In addition to these inspections, all highway workers are expected to report damaged or missing signs. When Reamey receives a complaint or request for a sign, she prepares a work order. She also maintains a daily report of completed work. Near the time of this accident, periodic inspections were also made by driving along the roadways videotaping pertinent areas using a VIZA data inspection system. In addition, Reamey maintains a notebook to record the location and type of signs needed along the roads. Reamey maintains these reports for five years.

According to Reamey’s records, a work order was submitted in 1990 to install five merger warning signs at the particular accident site. However, nothing in her records indicated that warning signs were actually installed. Her records do show that in August of 2001 four hitchhiker warning signs were placed near the merger area because of the prison proximity. Those signs were in place on the morning of the accident

In July 2001 Reamey’s crew was in the accident area replacing highway route markers. Reamey was unaware if the merger warning signs were in place at that time, but she had no record of receiving complaints concerning missing or damaged signs. A VIZA data inspection made along that section of the road | «during this time period failed to show any warning signs or sign posts without signs. A DOTD crew was the in the area again in November. No missing signs were reported.

When presented with Gauthreaux’s photographs at the scene, Reamey acknowledged that it was odd that all five of the signs ordered in 1990 were missing. She did note that signs disappear routinely as a result of theft or collisions. She acknowledged that the posts were also missing. This was also highly unusual because she stated that the posts are driven three feet into the ground and are hard to remove.

In September 2002 the Defendant’s investigators revisited the accident scene and took additional photographs. There were no warning signs present in those photographs. Reamey had no records of any type to establish that merger warning signs were installed between 1990 and September 2002.

The Plaintiffs’ expert traffic engineer, Duaine Evans, testified that the MUTCD recommends the placement of warning signs near lane mergers to indicate that two-way traffic lies ahead. Although such signs are not mandatory, he believed that the safety of motorists mandated signs at this merger. He testified that these type of signs are especially important where weather conditions can be foggy or create poor visibility. In Evans opinion, Ream-ey’s system was inadequate to insure that safety signs are installed where necessary. A reasonable time for replacing missing signs would be two to three weeks.

David Hall, the Defendant’s expert in traffic engineering, testified that ground stripes are the primary control devices for any road. Stripes are visible in all weather, and can warn motorists even when signs are missing. However, he also said that striping is difficult to see in foggy conditions.

| ¡According to the majority of the evidence, the warning signs were missing in July 2001, on the date of the accident, December 29, 2001, and in March, July and September of 2002. The only evidence that the signs were in position at any time in 2001 was Reamey’s testimony that she saw most of the signs in place twelve days before the accident. However, her notes on this topic were sketchy at best and there were no documents showing that the signs ordered in 1990 were in fact ever installed, or that any signs were ordered anytime after that until the date of the accident. Furthermore, credible witnesses testified that no cross-hatched striping and/or reflector bumps were present when the accident occurred.

The appellate court reviews questions of fact under the manifest error standard. Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030, p. 7 (La.9/5/07), 966 So.2d 36. Where there is conflicting testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. Id. Breach of a duty and the cause in fact of the harm are factual questions to be determined by the factfinder. Linnear, 06-3030 at 7; 966 So.2d at 44.

The jury heard the testimony, evaluated the credibility of the witnesses and weighed all of the evidence. From our review, we find that the jury could reasonably have concluded that the warning signs were missing, that the lack of warning signs was a cause in fact of the accident, and that the Defendant had ample opportunity to discover and fix the problem. Thus, we find that the jury did not commit manifest error in finding the Defendant liable.

In the Plaintiffs’ appeal, they contend that Reamey should not have been allowed to testify regarding inadmissible documents, and that the Defendant’s | inpercentage of fault should be increased. We find no abuse of discretion in the admission of the documents, or manifest error in the jury’s assessment of fault.

DAMAGES

According to Dr. Richard Mor-vant, Kerry’s orthopedic surgeon, Kerry’s left lower leg and right hand were crushed in the accident, his right femur was fractured, and he sustained multiple fractures to his right foot. In addition to his several hand, foot and leg surgeries, he underwent several debridement procedures to his left lower leg to relieve the pressure that developed from the trauma in order to save the soft tissue. When debridement was unsuccessful, the lower part of the limb was amputated. Kerry then developed unending phantom pain. He also continues to experience pressure on the stump that requires adjustments to the prosthetic. Kerry’s doctors continue to try to relieve the phantom pain, and, at one point, implanted a mechanical device in the spine. The procedure was unsuccessful.

Surgery was also performed to repair Kerry’s leg fracture. A rod was inserted in the broken right femur. However, his right leg is now shorter than the left, and is rotated. In addition, the multiple fractures in his foot destroyed several bones in the heel and ankle which required bones grafts. Despite the surgeries, the foot is deformed, and the ankle is immobile. Additional surgery may be necessary, and he faces possible amputation if his foot continues to be painful and non-functional.

Kerry has significant disability to the right hand. The crushing injury to his thumb and hand broke several bones. Despite surgery, he cannot completely open and close his thumb or fingers, and his hand remains weak.

Inin addition, Kerry underwent hernia surgery that was directly related to the impact to his torso.

Dr. Morvant last treated Kerry in September of 2005, but saw him again right before trial. He testified that Kerry has difficulty walking, he continues to suffer phantom pain, and the constant pressure on the leg stump will require revision and/or periodic replacement, refurbishing or readjustment. Dr. Morvant believes that Kerry is still in a fan* amount of pain considering the number of severe injuries, and that he will require long-term maintenance medication. Wound problems in his foot may develop because he is diabetic and has lost sensation there. Although his thigh and right hand are stable, he still has pain and loss of function, and his shoulder now hurts. Dr. Morvant attributed the shoulder pain to the injuries combined with inactivity from bed rest.

Doctor Morvant testified that Kerry sustained 70% disability to the hand, and 30% to the whole body from the hand, injury. His. left lower leg disability rating is 28%, and the right leg has 40-45% disability. The result is a total and permanent disability rating of over 100%.

Kerry LeBlane testified that he was a crane operator at Avondale before the accident. He can no longer perform that job. He stated that he was knocked unconscious in the accident, and his legs were pinned under the dashboard. He subsequently regained consciousness and suffered severe pain for many hours until he was extricated from the wreckage.

Kerry demonstrated to the jury the residual hand restrictions and skin grafts for his thumb. His right foot still hurts and he still suffers severe phantom pain. He said he cries a lot, and unfortunately is becoming immune to the sleeping and pain medication.

112Annette LeBlane added that Kerry underwent hypobaric treatments in a pressure chamber to promote healing three times per week for four weeks. He currently sees a pain management specialist. Among his other medications, Kerry is taking Cymbalta, an anti-depressant. She noted that Kerry underwent thirteen surgeries within eight months, and the couple had to live with her sister for one month.

Annette stated she had just finished nursing school and was pregnant when the accident happened. She and Kerry looked forward to building a house, having more children and taking vacations. Now, they are financially unable to complete some of their plans, but have been able to build a house with wheelchair access.

Before the accident, Kerry liked fishing, yard work, and working out at a local gym three times per week. He currently fishes only occasionally, is limited to mowing the grass, and no longer works out at the gym. He tries to help at home by doing laundry and helping their young daughter prepare for school. Kerry agreed with his wife’s assessment of his before and after capabilities. He added that he is limited in his ability to play with his daughter and their dog, and noted that his 18 year old son now has the burden of the yard work.

The Plaintiffs introduced a report by Nathaniel Fentress, an expert in vocational rehabilitation, with credentials in formulating life care plans. Life care plans objectively analyze an individual’s future care based on reasonable probability. They are subject to modification as needed.

Fentress obtained input from Independent Medical Examiner, Dr. Howard Katz, a Physiatrist, who informed Fentress that Kerry would require ongoing | ^medical care indefinitely. Dr. Katz is a specialist in treating and determining the needs of seriously injured patients. Based on the information provided, Fentress consulted with the businesses and medical care facilities to calculate the annual cost of the life care necessities, grouping them into ten categories.

For medical care, Fentress calculated Kerry’s expenses to be $960 per year for six physiatrist or primary doctor care visits, and two orthopedic consultations per year. He projected annual prosthesis replacement and supplies at $6,107.00,' including $5,607.00 per year for the leg prosthesis, and $500 per year for a special protective shoe for the right foot. The average annual expenses for diagnostic studies of the right ankle and foot were projected to be $195.00. Prescription medicine would cost $10,911.00 per year, and annual lab studies, $191.00. The fee for two physical therapy evaluations per year would be $164.00,' and occupational expenses would be $82.00 for a total of $246.00.

Fentress believed that Kerry would benefit from a fitness program, which would cost approximately $468.00 annually, based on a fee schedule from a hospital gym. Fentress also listed nine items of durable medical equipment Kerry will need, including costs to replace and/or maintain the items. Kerry will need a straight cane, a wheelchair, a wheelchair cushion, two tub benches, one for home and one for traveling, a handheld shower, grab bars for the bathroom, a wheelchair backpack, and portable wheelchair ramps. The average annual expenses for durable medical equipment are $1,021.75.

Based on Dr. Katz’s opinion, Fentress included assistance in daily living costs. Fentress calculated that Kerry will need one hour per day for an attendant until age 60. After that, he will require an increase to three hours per day. Over his life expectancy of 77.2 years, the total for attendant care is 114$271,414.00. In addition, Fentress added lawn care to this category. For 17 visits per year at $67.50 per visit, lawn care will cost $1,147.50.

The Fentress report includes architectural renovations to meet Kerry’s needs. Anticipating that Kerry will need wheelchair access in his living environment by age 55, Fentress listed renovation costs at $35,000.00

Fentress concluded that the Life Care Plan offered is an objective reflection of Kerry’s current medical care requirements. Based on the value of the dollar in 2003, and Kerry’s life expectancy, he stated that Kerry faces an approximate cost of life care of $1,001,865.70.

In response, the Defendant’s rehabilitation/life care expert, Ashley Briars, saw Kerry on one occasion and reviewed his records. Briars never spoke to Dr. Mor-vant, but reviewed his deposition and listened to his testimony. She recognized that Fentress had the input of Dr. Katz in preparing the plan, but noted Dr. Katz only saw the injured Plaintiff one time.

Briars concluded that Kerry’s expenses are minimal. She disagreed with Fen-tress’ calculations and conclusions stating they were either not supported by current medical testimony, or no longer are needed considering his physical improvement since the accident. She also noted that the Fen-tress report was made in 2003. Briars further stated Kerry had a great outlook as he was not seeing any doctor related to the accident. Briars said that Kerry did not appear depressed when she saw him and seemed content to stay home with his daughter, but she admitted he said he was depressed.

Reviewing the report by category, Briars stated that Fentress overestimated the costs related to the prosthesis. She claimed that a prosthesis is generally repaired, not replaced, and that $1,200.00 per year for silicone sleeve | ^replacement is reasonable. Sockets are replaced every other year at a maximum of $600. She stated supplies for that item would cost no more than $181.50.

Briars stated that Dr. Morvant did not testify that Kerry would require diagnostic, or lab studies. She also pointed out that some of the medications listed in the Fentress report have been discontinued. Kerry currently takes Lyrica, Oxycodone and antibiotics. Briars estimated the cost of Lyrica at $190 per month and Oxyco-done at $82.00 per month. She did not price the antibiotics. The Court notes, however, that the cost of Lyrica and Oxy-codone alone over Kerry’s lifetime of approximately 30 years totals $8,160.00, which is a few thousand dollars less than Fentress’ figures.

Briars also challenged the need for future attendant care assistance. She stated that no one recommended it, and he does not seem to need such care currently. She further found no need for including architectural renovations because the Plaintiffs built a new structure. In any event, she estimated construction of handicapped accommodations would only cost between $14,000 and $20,000, not $35,000.

Briars agreed Kerry would require pain management and medications for the rest of his life. However, she was unable to provide any monetary figure for his total life care to further refute the conclusions provided by Fentress.

In reviewing an award of general damages, the issue is whether the trier of fact abused its discretion. The discretion vested in the trier of fact is “great,” so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). See also, Cone v. National Emergency Serv., Inc., 99-0934, p. 8-9 (La.10/29/99), 747 So.2d 1085, 1089; Kaiser v. Hardin, 06-2092, p. 9 (La.4/11/07), 953 So.2d 802, 809. The | 1fiappellate court should increase or decrease the award 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. Youn, 623 So.2d at 1261.

The jury awarded Kerry significant amounts for the various items of damages, but Kerry has suffered catastrophic lifelong injuries. He was in extreme pain immediately following the accident. He underwent numerous painful surgeries. His body is deformed and he is 100% disabled. He will require medical care for the rest of his life. Although Ashley Briars disagreed with the life care plan prepared by Fentress, she failed to provide an life care amount for the jury to consider. The jury weighed the evidence and the credibility of the witnesses and awarded Kerry an amount it found reasonable. In addition, the jury viewed the burdensome effect this life disability has and will have on Annette LeBlane, and awarded her an amount it felt would compensate her for loss of consortium. Based on the evidence, we find that the awards are not excessive and that the jury did not abuse its discretion in the award of general damages, loss of enjoyment of life, future medical expenses and loss of consortium.

Accordingly, the judgment of the trial court is hereby affirmed. Costs of the appeal are to be paid by the Appellee.

AFFIRMED.

      . The St. Pierre suit was settled before trial.

      . Hays did not appeal.

      . The VIZA inspection program was later discontinued.

      . Experts George Randolph Rice and Kenneth Boudreaux testified as to lost wages. We have not addressed that issue since it is not before us.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    BOES IRON WORKS L.L.C., Craig D. Boes, and Lynn Boes v. Craig GALATAS and Mark Heller.
    No. 07-CA-336.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2007.

      Piercy J. Stakelum, III, David R. Sherman, Paola P. Corrada, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.
    George J. Denegre, Jr., John C. Anjier, Attorneys at Law, New Orleans, LA, for DefendantyAppellee.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

^Plaintiffs, Boes Iron Works, L.L.C., and its owners, Craig Boes and Lynn Boes, appeal a judgment of the trial court which granted a defense motion of per-emption pursuant to La. R.S. 9:5606 and dismissed their claim with prejudice.

In a petition for damages and declaratory judgment, the plaintiffs made claims against Craig Galatas and Mark Heller for recission for fraud, negligent and intentional misrepresentation, and breach of fiduciary duty. In the petition, the plaintiffs claim that defendant, Craig Galatas, represented himself as being an expert in financial planning and a securities broker. Galatas introduced plaintiff, Craig Boes to defendant, Mark Heller. According to the petition, the defendants convinced Craig Boes to purchase two variable life insurance policies as retirement investments telling him that, because the two policies would be maintained with a multi-employer welfare benefit plan in which Boes Iron Works L.L.C. would participate, the premiums would be tax-free. The defendants represented that the Lplan was authorized by Section 419 of the United States Internal Revenue Code, and would allow the plaintiffs to invest in the life insurance policies with pre-tax dollars.

The plaintiffs maintain that the information and assurances given by the defendants in their capacity as security brokers and financial experts was incorrect and as a result, the Internal Revenue Service (IRS) disallowed the deduction. This caused the plaintiffs to have a significant and unexpected tax liability, including penalties. The plaintiffs assert in their petition that the defendants knew the insurance policies did not qualify as tax-sheltered investments under Section 419, and undertook a variety of actions after the sale designed to conceal their wrongful practices from the plaintiffs.

Defendants filed exceptions of no cause of action and peremption, arguing that the allegations in plaintiffs’ action were preempted by the three-year period set forth in La. R.S: 9.5606 for actions against insurance agents. After a hearing on the matter, the trial court rendered judgment in favor of the defendants which granted the exception of peremption and dismissed the plaintiffs’ suit. It is that judgment from which the plaintiffs appeal.

Testimony and documents contained in the record show that Craig Boes and his wife, Lynn, are the sole owners of Boes Iron Works, L.L.C., a small business that owns heavy equipment usually leased to Boes Iron Works, Inc., a company owned by Mr. Boes’ mother.

In 2001, Mr. Boes consulted Craig Gala-tas, who had been recommended by a friend, to get financial advice. Specifically, Mr. Boes, who was forty-seven years old at the time, wished to create a retirement plan which would allow him to retire in five years with a monthly income of $10,000.00 after taxes. At the time, Mr. Boes had an annual income of about 1.5 million dollars, $500,000.00 in municipal |4bonds, 65,000.00 in other retirement plans and 2.5 million dollars in real estate. His only debt was about $100,000.00 in mortgages.

Mr. Galatas collected financial information from Mr. Boes and ultimately calculated that Mr. Boes would have to invest $450,000.00 per year in order to achieve his goal. Mr. Galatas introduced Mr. Boes to Mark Heller, a financial advisor who had special knowledge of Section 419 of the Internal Revenue Code that provided for tax sheltered employer-sponsored welfare plans.

Mr. Heller explained in his testimony that it would cost Mr. Boes’ company $750,000.00 in additional annual compensation to Mr. Boes to allow him to net $450,000.00. Under a plan in compliance with Section 419, the company could pay $450,000.00 in life insurance premiums for Mr. and Mrs. Boes as employees, with a tax deduction to the company of about 90% of the premiums, thus providing a considerable savings to Mr. Boes’ company.

In testimony at trial the parties agreed on many of the facts. Mr. Boes, Mr. Heller and Mr. Galatas all agreed that they met and discussed Mr. Boes’ goal and the plan to implement it. All parties also agree that at one of these meetings, Philip Bennett, Mr. Boes’ accountant was present. Mr. Bennett also attended a separate meeting with Mr. Galatas and Mr. Heller.

After these meetings, Mr. Boes signed an Advantage Death Benefit Only Plan sponsored by BISYS, a publicly traded multi-national insurance brokerage and consulting firm. On January 17, 2002, in connection with the document, Mr. Boes also signed an “Adoption Agreement” stating that the intent of the plan was to comply with Section 419A(f)(6) of the Internal Revenue Code and would be funded with variable universal life insurance policies providing death only benefits to each employee (Mr. and Mrs. Boes) in the amount of about 14,000,000.00.

|RIn February of 2002, Mr. Galatas met with Mr. and Mrs. Boes to show them a prospectus and illustration of the Manulife Financial variable life insurance policies to be used to fund the plan. The Boes agreed to the policies which were issued on March 11, 2002, and delivered on March 12, 2002. The face value of each policy was $18,986,535.00 with annual premiums of $450,210.00 for both.

Later that year, BISYS offered “audit” insurance to provide coverage for tax liabilities and related expenses owed in the event the deduction for the 419 plan was disallowed by the IRS. Mr. Boes elected to participate in the program on October 29, 2002.

On September 15, 2003 BISYS notified Mr. Boes that it was terminating all 419 plans, including the one written for Boes Iron Works, L.L.C. on advice of legal counsel after final regulations released by the IRS suggested the deduction for the plan may be disallowed.

On January 17, 2004, Mr. Boes adopted a new plan administered by Arrowhead Trust for Cronin, and funded it with the same Manulife Financial policies. This plan replaced the one originally written by BISYS. It differed only in the fact that it was not a multi-employer plan.

A tax deduction for 2002 was taken under the program. However, in April of 2004, Philip Bennett, Mr. Boes’ accountant informed him that the deduction could not be taken for the tax year of 2003. After consultation with a second accountant provided the same assessment, Mr. Boes filed suit against Mr. Galatas and Mr. Heller on March 5, 2005 alleging that the defendants misrepresented and concealed material facts relating to the true risk of the 419 plans. It is also alleged that the defendants failed to disclose the true nature of the variable life insurance policies. The plaintiffs further allege fraud and breach of fiduciary duty.

| fiWhile the parties agree on the sequence of events and the execution of the documents in question, the parties do not agree as to the specifics discussed at the meetings before the adoption of the plan. Mr. Heller testified that there were risks associated with the 419 plan. Besides the normal risks of any investment, the 419 plans were under attack by the IRS and the tax deductions could be disallowed. Mr. Heller stated that he repeatedly warned Mr. Boes of that risk in the first and subsequent meetings. The three discussed whether it was worth the risk even if the deductions were only allowed for a year or two. Ultimately, Mr. Heller and Mr. Galatas told Mr. Boes that neither of them was a tax advisor, and that Mr. Boes should consult his own tax expert before making the decision.

Mr. Heller testified that Mr. Boes’ accountant, Philip Bennett, was consulted regarding the decision and was informed of the risks by both Mr. Heller and Mr. Galatas. Mr. Heller testified that he and Mr. Galatas had two meetings with Mr. Bennett and that Mr. Boes was involved in the second meeting. At these meetings Mr. Bennett was supplied with documents, diagrams and booklets explaining how the plan worked and how the deductions were calculated. According to Mr. Heller’s testimony, Mr. Boes and Mr. Bennett were satisfied that the deduction for the plan was allowable under the Internal Revenue Code and Mr. Boes decided to adopt the 419 plan.

Mr. Galatas’ testimony is consistent with that of Mr. Heller. Mr. Galatas testified that Mr. Boes was told often of the risk that the deduction would be disallowed by the IRS and that he should take that into consideration. Mr. Galatas also testified that BISYS offered an audit insurance policy in the fall of 2002 because of the uncertainty of the status of the 419 deduction. Mr. Boes was again advised of the risk and elected in writing to acquire the insurance as a precaution.

|7Mr. Boes acknowledged that he met with Mr. Galatas and Mr. Heller on several occasions and that his accountant, Mr. Bennett was included in two of the meetings. He stated that Philip Bennett was the accountant who did his personal and company tax returns, but denied that Mr. Bennett was his tax advisor. He considered defendants to be his tax - advisors.

Mr. Boes further admitted that he signed and initialed all paperwork and documents, and makes no accusation that he was not given the opportunity to review any document, before its execution. His testimony is that he was only focused on his goal of securing a retirement plan that would enable him to retire in five years with $10,000.00 after taxes per month. Mr. Boes testified that his wife was not involved in the decision making on this transaction.

He testified that he consulted Mr. Gala-tas, who introduced him to Mr. Heller, and that the two men gained his trust. Mr. Boes considered the two men his professional financial advisors and trusted them to make the right decisions to see that his goal was met. Mr. Boes denies he was ever advised of any risk as to any aspect of the plan. He stated that he is not an experienced investor and is conservative by nature. Succinctly, Mr. Boes testified that he trusted the defendants completely and did not read anything before he signed it. He was emphatic in his testimony that no risk was discussed with him, and that he had no indication that anything was amiss until Mr. Bennett informed him in April of 2004 that a tax deduction for 2003 was not possible.

On cross-examination Mr. Boes was confronted with conflicts between his trial testimony and his prior deposition testimony. Mr. Boes admitted the plan was attractive to him because of the tax deduction, and that there “probably” was some discussion about aggressive tax strategy. Mr. Boes conceded that Mr. Galatas ^presented the plan as being in the “gray area” of tax law. Mr. Boes also admitted that he could have sat down to read the documents, but didn’t take the time.

Mr. Boes admitted he purchased audit insurance to protect against monetary loss in the event the IRS disallowed the deduction. He further admitted he understood the coverage. However, he stated that he thought the insurance was mandatory, and since the premium was relatively low, he thought the risk of the loss of the deduction was also.

He acknowledged that he got several documents relating to the insurance policies and the 419 plans, but he simply put them in a file, often unopened. He testified that Mr. Galatas was his trusted financial advisor and he thought Mr. Galatas would do the right thing.

One of the most pertinent parts of Mr. Boes testimony in his deposition is that when he received the letter from BISYS canceling the plan in September, 2003, he thought the plan was “smoke and mirrors.” According to the testimony of Mr. Galatas and Mr. Heller, at the time the BISYS plan was cancelled there was a discussion among the three men on how to proceed. Mr. Boes was offered three options. He could cash in the two life insurance policies, continue to pay the premiums with after tax dollars, or try to move the policies into a new plan. Both Mr. Galatas and Mr. Heller testified that, aside from setting up the retirement planning, Mr. Boes was interested in aggressive tax strategy. Ultimately, Mr. Boes decided to move the policy into a new plan.

Mr. Boes testified that when the first plan was cancelled, he only understood that a new company would be administering the program. He was not told of the risk or the problems with the plan.

\ «LAW AND ANALYSIS

The only issue presented for our review is one of preemption. The law used by the trial court in finding the plaintiffs’ action preempted is La. R.S. 9:5606, which provides as follows;

A.No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended

With the enactment of La. R.S. 9:5606, the legislature has imposed a one-year prescriptive limitation on actions against insurance agents, brokers and solicitors, and it has also put a three-year peremptive limit on these actions. Thus, if a claim of negligence is not filed within three years of the alleged act, it is extinguished by peremption, regardless of whether or not it was filed within the one-year limitation period. Huffman v. Goodman, 34,361 (La.App. 2 Cir. 4/4/01), 784 So.2d 718, writ denied, 2001-1331 (La.6/22/01), 794 So.2d 791.

As this court has noted, peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal Inaction, it does not terminate the natural obligation (La.C.C. art. 1762(1)); peremption, however, extinguishes or destroys the right (La.C.C. art. 8458). Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable. Biggers v. Allstate Ins. Co., 04-282 (La.App. 5 Cir. 10/26/04), 886 So.2d 1179, 1180.

Generally, the burden of proving a suit has prescribed rests with the party pleading prescription. However, when the plaintiff’s petition shows on its face that the prescriptive period has run, and the plaintiff relies on a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Tuazon v. Eisenhardt, 98-666 (La.App. 5 Cir. 12/16/98), 725 So.2d 553, 555; writ denied, 1999-0144 (La.3/12/99), 739 So.2d 209.

On appeal plaintiffs assert that the trial court erred in applying R.S. 9:5606, which sets forth the peremptive period for insurance agents. Plaintiffs argue the defendants are licensed security brokers who specialize in financial planning for high net worth individuals and small, closely held businesses. While they also hold insurance agent licenses, and the two policies of insurance here were used as a means to fund the retirement plan, these defendants acted as security brokers in this transaction. Plaintiffs also point out that the policies were variable life insurance policies, securities subject to federal and state securities laws. Commissions received by defendants were treated as securities commissions and were paid through InterSe-curties, Inc., the registered broker-dealer through whom the defendant held their security licenses.

| „ Accordingly, the plaintiffs ask this court to apply the two-year prescriptive period of the Louisiana Securities Law, La. R.S. 51:701, et seq., also known as the “Blue Sky Law”, rather than La. R.S. 9:5606.

We are not persuaded by plaintiffs’ argument. Funding of retirement plans with life insurance is not a novel concept. Variable life insurance policies are included in statutes regulating insurance law. See: La. R.S 22:1500. Further, in analyzing the law relating to variable insurance policies, the courts of Louisiana have applied insurance law, including the peremp-tive periods of La. R.S. 9:5606. See: Mahbod v. Ebrahimi, 06-235 (La.App. 5 Cir. 11/28/06), 947 So.2d 90; Shermohmad v. Ebrahimi, 06-512 (La.App. 5 Cir. 10/31/06), 945 So.2d 119. Accordingly, we find this matter should be resolved using La. R.S. 9:5606.

The issue in Shermohmad was directly related to the alleged misrepresentation regarding the performance of the variable life insurance policy, rather than the tax treatment of the premiums. Although the plaintiffs in the matter before us make an allegation in the original petition that there were misrepresentations regarding the performance of the life insurance policies, their arguments at the hearing relate to the issue of the tax treatment of the premiums. Therefore, we recognize She-mohmad can be distinguished on the facts. Nevertheless, we find Shermohmad instructive regarding the issue of prescription.

Prescription on variable life insurance policies begins to run on the delivery date of the policy. Shermohmad v. Ebrahimi, supra. The BISYS plan was adopted by the Boes in January of 2002. The policies used to fund the plan were delivered in March of 2002. Thus, any cause of action derived from the insurance policies would have prescribed in March of 2003. This suit was not filed until March of 2005.

| ^Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502, 510. Constructive knowledge is whatever notice is sufficient to excite the attention of the injured party and which puts the party on notice that an inquiry is necessary. In Re Medical Review Panel of Lafayette, 03-457 (La.App. 5 Cir. 10/15/03), 860 So.2d 86.

The record before this court shows that the Boes had several incidents that would serve to “excite the attention.” On January 17, 2002, Mr. Boes signed the agreement to set up the Advantage DBO Plan. The first attempt to secure life insurance policies to fund the program was not successful because the application was not accepted by the insurance company underwriters. However, in the paperwork regarding that transaction is a signed disclosure acknowledgement clearly setting forth the risks of which Mr. Boes asserts he was not informed. Ultimately, the policies were written through Manufacturers Life Insurance Company (Manulife). When the policies were written, a disclosure and acknowledgement was signed by Mr. Boes. That document was executed on March 27, 2002 and provides:

. Manulife, while acknowledging the assignments, makes no representation to the Employer or to any other person regarding the federal and state tax consequences of adopting or participating in the Plan. Specifically (without limiting the generality of the preceding sentence), Manulife makes no representations as to (1) whether deductions will be currently allowed for amounts contributed to the Trustee under the Plan, (2) whether the Plan’s method for computing the Employer’s annual contributions under the Plan yields correct or appropriate results, (3) whether the Plan results in impermissible experience rating or creation of segregated accounts for purposes of section 419A(f)(6) of the Internal Revenue Code.

Further, BISYS notified Mr. Boes on March 24, 2003 that a Fiduciary Audit Insurance Protection Program was available to cover losses in the event the IRS 11sdisallowed the deduction for the insurance premiums. Mr. Boes elected to purchase this coverage soon afterward.

The documents contained in the record set forth all the risks Mr. Boes asserts were not explained to him, and his signature and initials are on all of the documents. By Mr. Boes’ own testimony, he executed all of the documents and could have made the choice to read them. His choice, however, was to allow Mr. Galatas and Mr. Heller to prepare the paperwork and make the decisions. Further, Mr. Boes ultimately admitted that he was warned the 419 plan involved a gray area of tax law and took out audit insurance to be certain he did not suffer any monetary loss should the IRS disallow the deduction for the plan.

Mr. Boes knew from the start that 419 plans were gray areas of the tax code. At the very latest, Mr. Boes knew or should have known there was a problem in September of 2003, when he described the plan as “smoke and mirrors.” We find the trial court applied the applicable law to this case, and that prescription began to run in September of 2003.

Plaintiffs’ second argument is that the trial court erred in holding that the fraud exception is inapplicable to this action. One exception to the limitations of actions is an action in fraud. However, the fraud exception only applies to the one-year prescriptive period. Biggers v. Allstate Ins. Co., supra. This is consistent with the general concept that actions that are preempted are extinguished.

In finding that the fraud exception does not apply, the trial court stated, “(t)o the extent the Plaintiffs characterized their claims as sounding in fraud, that cannot establish reasonable reliance as a matter of law because the alleged misrepresentations were contradicted by the terms of written documents they received and executed.” Given the documentation presented in the matter before us, we find that to be a correct finding by the trial court.

| ^Plaintiff also argues that prescription should begin to run on April 4, 2004 when Arrowhead Trust took over as trustee of the plan. We find no merit in this argument. The new plan was for the same purpose as the original, and the original life insurance policies were still the funding mechanism of the plan. At any rate, this event took place well after Mr. Boes had notice that such a plan funded by variable life insurance was not likely to be tax deductible to his company, and purchased insurance to cover any losses should that event occur.

After a complete review of the record in the matter including the documents and testimony, we find the trial court correctly ruled on the merits of the exception of peremption. It is clear from the reasons for judgment that the trial court considered the evidence, and the credibility of the parties.

Mr. Boes tries to portray the defendants as professionals holding a fiduciary duty who misrepresented the tax consequences of the transactions for profit. However, we believe the trial court was correct in its observation that Mr. Boes is an experienced business man. Mr. Boes testimony that he simply trusted the defendants, signed when and where he was told without reading any documents is insufficient to prove his allegations against the defendants, especially in view of the documentation contained in the record.

We find it telling that Mr. Boes purchased the audit insurance to protect against financial loss if the IRS disallowed the deduction. Yet, his arguments to this court relating to the exception are based primarily on fraud relating to the misrepresentations made by the defendants regarding the tax aspects of the plan.

In conclusion, we find the trial court was correct. The overwhelming evidence presented at the hearing on the exception of prescription/peremption shows no evidence of fraud, misrepresentation or concealment in the actions of the defendants.

| ^Accordingly, we find no merit in plaintiffs’ arguments and affirm the judgment of the trial court for the reasons discussed herein.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    Robin WASHINGTON v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY.
    No. 2007-CA-0680.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2007.

      V. Katharine Crumby-Nance, S. Bradley Rhorer, Rhorer Law Firm, Baton Rouge, LA, for Plaintiff/Appellee.
    Amy Groves Lowe, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

111n this dispute over life insurance benefits resulting from the death of Plaintiffs adult daughter, Defendant, Colonial Life & Accident Insurance Company (“Colonial”), appeals the judgment of the trial court, which granted Summary Judgment in favor of the Plaintiff, Robin Washington (“Washington”), and denied Colonial’s Cross Motion for Summary Judgment. Washington also appeals the judgment insofar as the trial court failed to award penalties for Colonial’s alleged arbitrary and capricious denial of benefits. We affirm the trial court’s judgment.

Relevant Facts

Sandra Collette (“Sandra”) gave birth to Samantha Collette (“Samantha”) on June 5, 1986. Although Robin Washington did not sign her birth certificate and is not listed as her father on the birth certificate, he was Samantha’s biological father. Washington admits that throughout her lifetime, he had very little contact with Samantha, he never lived with her, and he did not support her financially. In 1998, Washington gave up his parental rights to Samantha when Sandra’s husband, | .¡Allen Washington, adopted her. Tragically, Samantha was killed in an automobile accident in February 2003.

Soon after Samantha’s death, Washington filed a claim with Colonial for life insurance benefits pursuant to a policy that he obtained on November 8, 1991, when Samantha was only five years old. In the policy, Washington listed Samantha in the Dependent Child Rider Section. The policy defines “insured child” as the Insured’s natural child, stepchild, or legally adopted child who, on the day the rider is issued: 1) is living in a regular parent-child relationship; 2) is under the age of 19; and 3) is unmarried. This policy also contains an incontestability clause that provides, ‘We (Colonial) cannot contest this policy after it has been in effect during the lifetime of the insured for two years from the issue date.” Washington regularly paid the premiums on the policy until the time of Samantha’s death.

Despite the two year incontestability clause contained in the policy, Colonial denied Washington’s claim for benefits on the basis that he was not living in a regular parent-child relationship with Samantha when the policy was issued twelve years earlier. In October 2003, Washington filed suit against Colonial for the benefits. In September 2006, Washington filed a Motion for Summary Judgment arguing that the incontestability clause barred Colonial from contesting the policy and that Colonial’s denial of the claim was arbitrary and capricious. Colonial filed a cross motion for Summary Judgment requesting dismissal of Washington’s claims. The trial court granted Washington’s Motion for Summary Judgment, but found that Colonial did not act arbitrarily or capriciously in denying the claims. The court denied Colonial’s Motion for Summary Judgment. This appeal followed.

I sLaw and Argument

In its appeal, Colonial argues that the trial court erred in holding: that the incontestability clause in the policy required coverage; that Colonial should have discovered Washington’s alleged misrepresentation prior to the time that he made a claim under the Children’s Rider; and that Washington was entitled to benefits under the policy. Conversely, Washington argues that Colonial is barred from contesting the policy due to the two year incontestability clause. Washington asserts that he is entitled to benefits under the policy as well as penalties for Colonial’s arbitrary and capricious failure to pay his claim.

Summary judgments are reviewed de novo on appeal whereby the appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Marcades v. Cleanerama, Inc., 02-0857, p. 3 (La.App. 4 Cir. 9/25/02), 831 So.2d 288, 289.

Colonial argues that Washington is not entitled to benefits under the policy because he was not living in a regular parent-child relationship with Samantha on the date the policy was issued, as the policy clearly requires, and that this was a material misrepresentation on the part of Washington. In response, Washington argues that he made no representations whatsoever to Colonial regarding the character of his relationship with Samantha and that the policy only requests the name, the relationship, the date of birth, and the health condition of the persons listed. Washington further argues that the policy does not define “regular parent-child” relationship and that the term is therefore ambiguous and should be construed in his favor. We agree with Washington. If Colonial had intended the term “regular parent-child relationship” to mean a relationship whereby the parent |4is actually living with the child, or supporting her financially, then the term should have been expressly defined in the policy. When an insurance policy provision is ambiguous, it must be construed against the drafter. See La. Civ.Code art. 2056. Therefore, we find that Washington did not intentionally misrepresent his relationship with Samantha and that the trial court was correct in finding that Mr. Washington was entitled to benefits under the policy.

Colonial further argues that the trial court erred in finding that Colonial should have discovered Washington’s misrepresentation prior to his submission of the claim for benefits. Here, Colonial has mis-characterized the trial court’s holding. What the trial court actually held was that “it was incumbent upon the company [Colonial] to determine that [the facts surrounding the relationship] prior to the lapsing of those two years.” The trial court did not find that Washington made a misrepresentation in the application process.

The trial court was correct in holding that Colonial bore the burden of timely contesting the policy — in this case, by November 1993 — and that it was barred from later contesting the claim. Louisiana law does not permit an insurer to contest a policy after the incontestability period, unless allowing coverage would extend the risk beyond that contemplated by the insurer when the policy was written. See Jackson v. Continental Casualty Co., 412 So.2d 1364 (La.1982). Colonial did not investigate the character of Washington’s relationship with Samantha and did not seek to contest Samantha’s eligibility as a dependent child until after Washington made the claim for benefits. Nevertheless, Colonial argues that allowing coverage to Washington in this case would extend the risk beyond that which was contemplated.

Un support of this argument, Colonial offers actuarial data indicating that children of single-parent households have higher mortality rates that children living in two parent households. However, this argument fails because the policy does not require that two parents be living with the child, just that the parent is living in a regular parent-child relationship with the child. Colonial had two years from the date the policy was issued to investigate the character of the relationship between Washington and Samantha and contest her eligibility as a dependent child under the policy. It did not do so. Accordingly, we find that the trial court was correct in holding that Colonial was barred from disputing the policy by the two year incontestability clause.

In his cross-appeal, Washington argues that the trial court erred in failing to award penalties and attorney’s fees for Colonial’s arbitrary and capricious denial of his claim. Penalties and attorney’s fees are not assessed unless a plaintiffs proof is clear that the insurer was in fact arbitrary, capricious, or without probable cause in refusing to pay. Reed v. State Farm Mut. Auto Ins. Co., 03-0107, p. 13 (La.10/21/03), 857 So.2d 1012, 1020. The statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense. Rudloff v. Louisiana Health Services and Indemnity Co., 385 So.2d 767, 771 (La.1979), on rehearing. Whether or not a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action, which in the instant case was after Samantha’s death when Washington was unable to produce Samantha’s death certificate. See Scott v. Insurance Company of North America, 485 So.2d 50, 52 (La.1986). Because the question is essentially a factual issue, the trial court’s finding should not be disturbed on appeal absent manifest error. Id. However, when the record 16does not support the trial court’s determination on this issue, the trial court’s decision will be reversed. See Darby v. Safeco Insurance Company of America, 545 So.2d 1022, 1028 (La.1989) (An insurer’s refusal to tender policy limits pending a legal decision on possible intentional misrepresentation by insured was not unreasonable or without probable cause; a jury’s finding to the contrary was clearly wrong.).

In this case, the trial court determined that Colonial did not deny the claim without probable cause and that Colonial’s objection to the qualified insured child provision was reasonable under the circumstances. After an investigation, Colonial discovered that Washington had never lived with Samantha arid that he had given up his parental rights to her by Sandra’s husband to adopt her. Therefore, it had a reasonable basis to deny the claim based on its belief that Washington had materially misrepresented his relationship with Samantha and that Washington was not entitled to benefits under the policy. Because the record supports the trial court’s finding on this issue, we cannot say that the trial court was manifestly erroneous in failing to award penalties in this case. Therefore, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.