author: PETERS, J. AMY, J.,

text:
    Tara Labove HEBERT, et al. v. Scotty L. WEBRE, et al. Fletcher Gabriel Lalande, et ux. v. Scotty L. Webre, et al.
    No. CA 07-95.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.
    Jennifer Jones, Glenn W. Alexander, Attorneys at Law, Cameron, LA, for Plaintiffs/Respondents: Tara LaBove Hebert, Olivia Marie Hebert, Thomas Christopher Hebert, John Michael Hebert, Succession of Christopher Allen Hebert.
    Katherine P. Martin, Gretchen Heider Mayard, Lafayette, LA, for Defendant/Applicant: State Farm Mutual Insurance Company.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and SYLVIA R. COOKS, JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, GLENN B. GREMILLION, ELIZABETH A. PICKETT, BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PETERS, J.

| ^his matter arises from an application for supervisory writs filed by State Farm Mutual Automobile Insurance Company (State Farm). State Farm sought reversal of the trial court’s judgment on two motions for summary judgment addressing the extent of coverage provided under the uninsured/underinsured motorist (UM) coverage provisions of an insurance policy it issued to Christopher Allen Hebert. This court initially denied the writ application in an unpublished opinion. Hebert v. Webre, 07-95 (La.App. 3 Cir. 4/11/07). State Farm then filed an application for supervisory writs with the Louisiana Supreme Court. The supreme court granted the application but did not render a decision on the merits. Instead, the supreme court remanded the matter to this court with instructions to hear the case en banc and to consider the impact of our decision in Williams v. Aymond, 05-1547, 05-1548 (La.App. 3 Cir. 12/6/06), 945 So.2d 823, writs denied, 07-5 (La.3/9/07), 949 So.2d 442 and 07-69 (La.3/9/07), 949 So.2d 449, on the disposition of the issue raised in State Farm’s supervisory writ application. Hebert v. Webre, 07-992 (La.6/29/07), 959 So.2d 517. We have complied with the supreme court’s instructions and, for the reasons that follow, we reaffirm our decision denying State Farm’s supervisory writ application.

DISCUSSION OF THE RECORD

This litigation arises from a two-vehicle accident which occurred on May 11, 2005, at the intersection of Louisiana Highway 397 and Louisiana Highway 14 in Cameron Parish, Louisiana. Christopher Allen Hebert, the owner and operator of one of the vehicles involved in the accident, died as a result of the injuries he sustained therein. His guest passenger, Fletcher Gabriel La-Lande, survived the accident but sustained serious personal injuries.

| ,Two separate suits for damages arose from this accident. Christopher Allen Hebert’s surviving spouse, Tara LaBove Hebert, filed the first on behalf of herself, in her capacity as natural tutrix of her three minor children, and as administratrix of the succession of her husband (herein collectively referred to as the Hebert plaintiffs). The Hebert plaintiffs named State Farm, the UM insurer of the Hebert vehicle, as one of the defendants. Fletcher Gabriel LaLande and his wife, Janetta Theriot LaLande, filed the second suit arising from the accident. The defendants they named in their suit also included State Farm as the UM insurer of the Hebert vehicle. Although the trial court consolidated these two suits, the matter now before us relates only to the Hebert plaintiffs’ phase of the litigation as it is affected by State Farm’s policy provisions.

With regard to the issue now before us, the relevant facts are not in dispute. State Farm provided UM coverage to the vehicle driven by Christopher Allen Hebert with policy limits of $100,000.00 per person and $300,000.00 per accident. The driver of the other vehicle involved in the accident, Scotty L. Webre, had liability insurance with Progressive Insurance Company, with policy limits of $25,000.00 per person and $50,000.00 per accident. Because of the severity of the injuries sustained by the Hebert plaintiffs, Webre was an underinsured motorist. Thus, the Hebert plaintiffs are entitled to recover under the State Farm policy, subject only to the policy limitations.

At some point after the accident, State Farm paid the Hebert plaintiffs $100,000.00. State Farm then met the Hebert plaintiffs’ suit with a motion for summary judgment seeking dismissal from that phase of the litigation based on this payment. Specifically, State Farm asserted that all claims for damages to the various | Hebert plaintiffs were included within the $100,000.00 per person limit of the policy, and, therefore, it had fulfilled its contractual obligations to those plaintiffs. The Hebert plaintiffs responded to this motion by filing a motion for summary judgment of their own seeking the opposite relief. That is to say, the Hebert plaintiffs asserted that their claims should be subject to the $300,000.00 per accident limit. After a hearing on both motions, the trial court concluded that all of the claims of the Hebert plaintiffs were subject to the $300,000.00 per accident limitation and not the $100,000.00 per person limitation. In reaching this conclusion, the trial court rejected State Farm’s motion and granted the Hebert plaintiffs’ motion.

As previously stated, we affirmed these judgments by rejecting State Farm’s application for supervisory writs. The matter has now been heard en banc pursuant to the Louisiana Supreme Court’s instruction, and we now reach the same result as did the original three-judge panel.

OPINION

In Babin v. Winn Dixie La., Inc., 00-78, pp. 3-4 (La.6/30/00), 764 So.2d 37, 39-40, the Louisiana Supreme Court addressed the conditions under which a summary judgment should be granted:

A motion for summary judgment will be granted “if 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.” La.Code Civ.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2).

Appellate courts review a trial court’s grant or denial of a motion for summary judgment using the de novo standard of review, under the same criteria that govern 14the trial court’s consideration of whether a summary judgment is appropriate in any given case. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

In the matter now before us, the only issue is one of contractual interpretation, which is a question of law subject to a de novo standard of review. Mitchell v. Patterson Ins. Co., 00-612 (La.App. 3 Cir. 12/6/00), 774 So.2d 366. An insurance policy is a contract between the parties and should be construed by applying the general rules of interpretation of contracts set forth in the Louisiana Civil Code. La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La.1/14/94), 630 So.2d 759. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ.Code. art.2046. Ambiguous insurance policy provisions generally are to be construed against the insurer and in favor of coverage. La.Civ.Code art.2056, Carrier v. Reliance Ins. Co., 99-2573 (La.4/11/00), 759 So.2d 37. The insurance policy should be construed as a whole; one portion of the policy should not be construed separately while another is disregarded. La.Civ.Code art.2050, Thiels v. Am. Int. S. Ins. Co., 03-774 (La.App. 3 Cir. 12/10/03), 861 So.2d 757. Words and phrases used in the policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words or phrases have acquired a technical meaning. La.Civ. Code art.2047.

The State Farm policy begins with a number of basic definitions, including the following:

Bodily Injury — means physical bodily injury to a person and sickness, disease or death, which results from it.
Insured — means the person, persons or organization defined as | Rinsureds in the specific coverage.
Person — means a human being.
Relative — means a person related to you or your spouse by blood, marriage or adoption who resides primarily with you.
You or Your — means the named insured or named insureds shown on the declarations page.

All but one of the listed definitions have the same meaning throughout the policy. The one variable general definition is that of an insured under the policy — it changes from section to section in the policy.

The UM coverage provisions are found in SECTION III of the policy. The applicable language concerning who may collect damages caused by an uninsured/underin-sured driver provides:

We will pay nonpunitive damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

State Farm does not dispute the fact that all of the plaintiffs are entitled to recover some damages under the UM provisions of the policy. Instead, it argues that lfiit has fulfilled its obligation to the Hebert plaintiffs with the $100,000.00 payment. In making this argument, it relies on the language of SECTION III of the policy, which reads as follows:

The amount of coverage is shown on the declarations page under “Limits of Liability-U-Each Person, Each Accident”. Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person ” includes all injury and damages to others resulting from this bodily injury, and all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury. Under “Each Accident” is the total amount of coverage, subject to the amount shown under “Each Person”, for all damages due to bodily injury to two or more persons in the same accident.

State Farm directs this court to our decision in Williams, 945 So.2d 823, asserting that it was directly on point. We initially rejected this argument and, after following the supreme court’s mandate in its remand, reject it again. In explaining why we reject State Farm’s argument, we must first address the supreme court’s holding in Crabtree v. State Farm Ins. Co., 93-509 (La.2/28/94), 632 So.2d 736 (La.1994), and its application to the facts before us.

In Crabtree, at issue was a spouse’s claim for mental anguish damages she suffered from having observed her husband’s motorcycle being struck by another vehicle. The litigants stipulated that the plaintiff sustained a Lejeune injury, the extent of which exceeded $25,000.00. They also stipulated that State Farm provided liability insurance coverage to the defendant who had struck the husband’s motorcycle, and that the policy provided limits of $25,000.00 per person and $50,000.00 per accident. The State Farm policy at issue in Crabtree defined bodily |7injury to a single person to include “all injury and damages to others resulting from this bodily injury” for the purpose of applying the single person limit to multiple claims. Id. at 738. State Farm argued that the plaintiffs claim was derivative of her husband’s personal injury claim and that both her claim and that of her husband were subject to the $25,000.00 per person limit. The plaintiff argued that her claim was a separate claim such that the entire $50,000.00 policy limit was available to her and her husband. The supreme court “granted certiorari to consider whether a wife’s mental anguish suffered upon witnessing an injury to her husband constitutes a separate bodily injury under an automobile insurance policy thereby entitling the wife to her own per person policy limit subject to the aggregate per accident limit.” Id. at 737-38. The supreme court concluded that, under the circumstances of that case, the wife’s mental anguish did constitute a separate bodily injury.

The supreme court began by applying the basic contractual rules of construction to interpret the policy terms. In doing so, the supreme court stated the following:

Construing the policy provisions in light of each other so that each is given the meaning suggested by the policy as a whole, we conclude the policy language defining “bodily injury to one person” to include “all injury and damages to others resulting from this bodily injury” does not reasonably encompass bodily injury to others under the single person limit. We interpret the policy to mean instead that where one person suffers bodily injury, or where one person suffers bodily injury and one or more other persons suffer injury and damages other than bodily injury as a result of the former’s bodily injury, the amount of coverage for bodily injury to one person applies ($25,000). This interpretation is consistent with State Farm’s contractual obligation to “pay damages which an insured becomes legally liable to pay because of .... bodily injury to others.” On the other hand, where two or more persons suffer bodily injury in the same accident, the aggregate amount of coverage for each accident applies ($50,000) even if one or more persons’ bodily injury “results from” another’s bodily injury.

Id. at 742.

|sThe supreme court then turned to the question of whether Mrs. Crabtree’s mental anguish constituted a bodily injury. In addressing this question, the supreme court noted that the State Farm policy definition of “bodily injury” was ambiguous.

The definition is ambiguous in at least two respects. First, the definition is circular in that the term being defined is used within its own definition: “Bodily injury is bodily injury to a person, and sickness, disease or death which results from it.” Secondly, if the definition was intended to cover only external, physical injuries, then “bodily injury” easily could have been defined in a more restrictive fashion through the use of such words.
Moreover, interpretation of the term “bodily injury” to include Lejeune damages is consistent with the jurisprudence of this court. In Lejeune, 556 So.2d at 570, we made it clear that in order to be compensable, mental pain and anguish suffered because of injury to a third person must be “both severe and debilitating.” We pointed out that “[ojther states have recognized that ‘[t]he essence of the tort is the shock caused by the perception of the especially horrendous event.’ ” Id. at 570 n. 11 (quoting Gates v. Richardson, 719 P.2d 193 (Wyo.1986)) (emphasis added). Additionally, although not having to do with the interpretation of a policy definition, it is nonetheless instructive to note that in Sparks v. Tulane Medical Center Hospital & Clinic, 546 So.2d 138, 146 (La.1989), we interpreted the phrase “physical structure of the body” as it is used in the Worker’s Compensation Act to include injuries to the mental health of an employee. We observed: “An individual’s mental health is an essential component to the overall operation of the physical structure of his body.... [Tjhere is no bright-line distinction between ‘physical’ and ‘mental’ injuries, either in medicine or in law....”
Where the language of an insurance policy provision is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. In this case, it is reasonable to find “bodily injury” as defined in the policy herein includes severe and debilitating mental pain and anguish such as that suffered by Lejeune claimants. We therefore conclude Mrs. Crabtree’s mental anguish constitutes “bodily injury” as defined in the State Farm policy.

Id. at 744-45.

After the Crabtree decision, State Farm apparently attempted to cure the circular defect recognized in Crabtree by adding the word “physical” in its definition of “bodily injury.” Instead of defining “bodily injury” as “bodily injury to a person |aand sickness, disease or death which results from it,” as was the case in Crabtree, it now defines “bodily injury” as “physical bodily injury to a person and sickness, disease or death which results from it.” Additionally, it amended that portion of the policy addressing limited recovery for insured persons seeking to recover damages arising from the bodily injury of an insured. Instead of the “all injury and damages to others resulting from this bodily injury” language found in Crabtree, State Farm changed it to include within the definition of bodily injury to one person “all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury.” This was the language before this court in Williams, 945 So.2d 823.

The wrongful death plaintiffs in Williams were the heirs of the driver of a tractor who had been killed in a tractor/automobile accident, and State Farm provided liability coverage to the driver of the automobile involved with limits of $100,000.00 per person and $300,000.00 per accident. Although the court in Williams considered the policy in the context of liability coverage and not UM coverage, it contained basically the same language as is now before us, and the issue was the same — whether all of the claims of the wrongful death plaintiffs were subject to the per person limit or the per accident limit. This court concluded that the addition of the phrase “all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury ” to the definition of “bodily injury to one person” clearly made it “include both physical and emotional damages recoverable to all wrongful death claimants for the death of one person.” Id. at 837.

We disagree that this language is all inclusive as suggested in Williams. Were we to substitute the definition of “bodily injury” into the limitation language, itlmwould read as follows: “Physical bodily injury to one person ” includes all injury and damages to others resulting from this physical bodily injury, and all emotional distress resulting from this physical bodily injury sustained by other persons who do not sustain physical bodily injury.” Thus, a third person (who is also an insured under the policy) who does sustain physical bodily injury as a result of the injury to the one person, is not excluded from exerting his or her individual claim for that physical bodily injury. Recognizing the specific holding in Crab-tree that severe and debilitating mental pain and anguish can rise to the level of a physical bodily injury, we find that nothing in the new policy language would warrant a result different from that reached by the supreme court in its prior decision.

We also note that the supreme court in Crabtree clearly stated that “if the definition was intended to cover only external, physical injuries, then ‘bodily injury’ easily could have been defined in a more restrictive fashion through the use of such words.” Id. at 744 (emphasis added). For whatever reason, State Farm chose not to limit its coverage to external physical injuries. Thus, when it attempted to limit the recovery of wrongful death plaintiffs who sustained emotional distress from the bodily injury of the deceased, it limited that recovery only for those who “[did] not sustain bodily injury ” under SECTION III of the policy. Therefore, to the extent that it appears to require application of the “per person” limit in an UM insurance policy to a claimant who sustains severe and debilitating mental pain and anguish that rises to the level of a physical injury, we overrule this court’s decision in Williams v. Aymond, 945 So.2d 823.

The trial court correctly concluded that those wrongful death plaintiffs who, as a result of the death of Christopher Allen Hebert, suffered mental anguish and/or Inemotional distress to such an extent as to constitute a physical injury under the criteria set forth in Crabtree would not be limited to the per person limit of the State Farm policy. Thus, we find no error in either the trial court’s denial of State Farm’s motion for summary judgment or its grant of the Hebert plaintiffs’ motion for summary judgment, subject obviously to the issue of proof of injuries at trial.

CONCLUSION

For the foregoing reasons, we deny the application for supervisory writs filed by State Farm Mutual Automobile Insurance Company. We assess all costs of this supervisory writ application to State Farm Mutual Automobile Insurance Company.

APPLICATION FOR SUPERVISORY WRIT DENIED.

AMY, J., dissents and assigns written reasons.

AMY, J.,

dissenting.

hThe majority acknowledges the differences in the policy in this case and that in Crabtree v. State Farm Ins. Co., 93-0509 (La.2/28/94), 632 So.2d 736, but concludes that these changes do not resolve the ambiguity in the policy terms observed by the supreme court. In my opinion, the differences in the policy are significant and distinguish the present version from that before the supreme court in Crabtree. In that case, the policy defined “bodily injury” as:

[BJodily injury to a person and sickness, disease or death which results from it.

Id. at 739. Under the Limits of Liability section, the Crabtree policy provided, in part:

Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person” includes all injury and damages to others resulting from this bodily injury.

Id. The supreme court found the language ambiguous insofar as the term being defined, “bodily injury,” was used within its own definition. It also remarked that “if the definition was intended to cover only external, physical injuries, then ‘bodily | ¡¡injury’ easily could have been defined in a more restrictive fashion through the use of such words.” Id. at 744.

I find that the amendments to the policy address both of these concerns. First, the policy now defines “bodily injury” as:

[PJhysical bodily injury to a person and sickness, disease or death which results from it.

(Amendment emphasized). Additionally, a clause has been inserted into the Limits of Liability section to read:

Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person” includes all injury and damages to others resulting from this bodily injury, and all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury.

(Amendment emphasized).

Of course, Crabtree explained that severe and debilitating mental pain and anguish can rise to the level of a bodily injury. However, the alterations to the language since Crabtree not only couple “physical” with “bodily injury,” but further include the final clause regarding emotional distress. The policy is now sufficiently clear to resolve the question of whether all emotional distress, severe and debilitating or not, is included within the “Each Person” limitation. It seems to me that these changes sufficiently respond to the observation that “if the definition was intended to cover only external, physical injuries, then ‘bodily injury* easily could have been defined in a more restrictive fashion through the use of such words.” Crabtree, 632 So.2d at 744. The lack of inclusion of “external” in the definition does not detract from the obvious intent to channel recovery for all mental injuries related to the physical bodily injury of another into the “Each Person” limitation.

For these reasons, I would adhere to the reasoning expressed in this court’s decision in Williams v. Aymond, 05-1547, 05-1548 (La.App. 3 Cir. 12/6/06), 945 So.2d 823, writ denied, 07-5 (La.3/9/07), 949 So.2d 442, writ denied, 07-69 (La.3/9/07), 949 So.2d 449 and would grant the writ.

      . The variations evolve primarily because of the use of "you" and "your” in some definitions and the use of "person" in others. This becomes significant in evaluating who is protected under the various coverages because the use of the former can imply coverage of an organization while the use of the latter restricts coverage to a "human being.” The liability section uses the former classifications while the medical payment section and the UM section use the latter. The section relative to property damage coverage uses both classifications, depending on the damage at issue.

      . SECTION III lists three types of UM coverage available to an individual insured: non-punitive damages, economic-only damages, and property damage. The only section at issue in this litigation is the section relative to nonpunitive damages.

      . SECTION III defines an insured as:
      1. the first person named in the declarations;
      2. his or her spouse;

      3. their relatives; and
      4. any other person while occupying [the insured vehicle]....
      5. any person entitled to recover damages because of bodily injury to an insured under 1 through 4 above.

      . Such damages are generally referred to as Lejeune damages based on the holding in Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990), said decision being later codified by the legislature in La.Civ.Code art. 2315.6.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    PG DINERS, INC. v. REMSON-HALEY ARCHITECTS, INC., et al.
    No. CA 07-814.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2007.
    Kevin Lawrence Cole, James Anthony Prather, Attorney at Law, Mandeville, LA, Glen E. Mercer, Salley, Hite, Rivera & Mercer, New Orleans, LA, for Defendant/Appellee, Certain Underwriters at Lloyd’s London.
    Thomas Livingston Gaudry, Jr., Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Defendant/Appellee, Assurance Company of America.
    Richard E. Gerard, Jr., Scofield, Gerard, Scofield and Pohorelsky, Lake Charles, LA, Kevin Louis Camel, Michael Kevin Cox, Richard Elliott Wilson, Cox, Cox & Filo, Lake Charles, LA, for Plaintiff/Appellant, PG Diners, Inc.
    Thomas Walter Sanders, Lake Charles, LA, for Defendant/Appellee, Touchstone Masonry.
    Charles A. Schutte, Jr., Guglielmo, Marks, Schulte, Terhoeve & Love, Baton Rouge, LA, for Defendant/Appellee, Liberty Mutual Insurance Company.
    Christopher Paul Pierce, Wray & Pierce, Baton Rouge, LA, for Defendant/Appellee, Bessette Development Corp.
    James J. Hautot, Jr., Judice & Adley, Lafayette, LA, Todd Michael Ammons, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, LA, for Defendant/Appellee, R. Savant, Inc.

      Michael Glenn Hodgkins, Attorney at Law, Lake Charles, LA, for Defendant/Ap-pellee, Bessette Development Corp.
    James Albert Rowell, Attorney at Law, New Orleans, LA, for Defendant/Appellee, Audubon Indemnity Company.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

|Jn this matter, PG Diners appeals the decision of the jury finding Remson-Haley Architects 100% liable for the failure of a parking lot constructed by Bessette Development. For the following reasons, we affirm the jury’s finding.

PG Diners hired Remson-Haley to design plans for a truck stop to be built in Iowa, Louisiana. Included in the plans was a very large parking lot that would need to stand up to constant use by big trucks. One year prior to Remson-Haley finishing the design, a geo-technical soil report was performed on the soil of the build site. The soil report called for a crushed limestone base of four inches in the light-duty automobile areas and a six-inch crushed limestone base for the intermediate and heavy duty areas to be used by large trucks. Remson-Haley completed the design and sent it out for bid. The design sent out by Remson-Haley called for the lot to have a four-inch sand base. After Bessette won the bid, PG Diners asked them to look for cost-cutting measures on the project. Bessette submitted proposed changes to PG Diners and Rem-son-Haley, including reducing the four-inch sand base to one inch, removing subsurface drainage in favor of surface drainage, and placing dowels at a spacing of two feet, rather than the one-foot intervals suggested by Remson-Haley. The proposed changes were discussed with PG Diners and Remson-Haley and were approved.

Soon after construction was finished on the project, sections of the lot began to fail. Bessette originally replaced some of the panels according to a cost-sharing agreement with PG Diners, but after deciding it was not responsible for the failure, Bessette declined to replace additional failed sections. PG Diners filed suit against Remson-Haley and Bessette for the failure of the lot. PG Diners settled with Remson-Haley and proceeded to trial against Bessette only, claiming faulty | ¡.construction led to the lot’s failure. After a long jury trial, the jury found that Rem-son-Haley was solely responsible for the failure of the lot and assessed them with 100 % liability. From this decision, PG Diners appeals.

PG Diners asserts as their sole assignment of error on appeal that the jury committed error in failing to assign Bes-sette any fault for the failure of the lot. We disagree.

As noted by this court in Layssard v. State, Department of Public Safety and Corrections, 07-78, p. 3 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1057-58, writ denied, 07-1821 (La.11/09/07), 967 So.2d 511.

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La.10/30/00), 773 So.2d 670, 680-81, set forth the standard for reviewing comparative fault determinations as follows:
This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.
Therefore, a trier of fact’s allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

It is evident from the immense record before us that the jury’s decision was not manifestly erroneous, as there clearly existed a reasonable factual basis for its | afindings.

The contract between PG Diners and Bessette set forth that Bessette, as the contractor, was “not responsible for the liability or acts of architect ... arising out of the preparation or approval of reports, opinions, surveys, maps, drawings, designs or specifications” which give rise to any injury or damage. Remson-Haley’s duties included designing the lot to the standard of an architect to ensure that the lot did not fail. Their own contract with PG Diners stated that Remson-Haley were to assist them in reviewing documents, alternatives, and other proposals submitted by the contractor. However, the evidence showed that they failed to meet this duty.

PG Diners claims that Bessette altered the Remson-Haley design by reducing the sand base from four inches to one inch, as well as by removing the sub-surface drainage and spacing the dowels farther apart and, in doing so, assumed liability for the design. However, PG Diners’ owner, Bob King, as well as Harvey Bessette and Sam Cavys, an employee of Bessette, all testified that PG Diners, Remson-Haley, and Bessette met prior to the signing of the contract between PG Diners and Bessette to discuss the changes. They all testified that Remson-Haley approved the changes. Mr. King specifically testified that he would not have accepted the changes without Remson-Haley’s approval and that he was shocked when it later denied responsibility for the design of the lot. Both experts, including PG Diners’ own expert, Charles Ladner, testified that by approving the changes, Remson-Haley retained liability for the design.

Furthermore, Remson-Haley admitted they did not use the soil report in preparing their design, despite having over one year to incorporate the report’s findings into its plans. Again, both experts testified that the failure of Remson-Haley to follow the soil reports recommendation that the parking lot should have a crushed Rlimestone base doomed the lot to failure from the outset and that the lot would have failed even if Bessette had otherwise built the lot perfectly or if the sand base had been four inches as originally specified.

It is clear from the record that there existed a reasonable factual basis for the jury’s determination that Remson-Haley was 100 % at fault for the failure of the parking lot. Accordingly, the jury’s conclusion cannot be manifestly erroneous.

The decision of the trial court is hereby affirmed. Costs of this appeal are assessed against PG Diners.

AFFIRMED.


author: AMY, Judge.

text:
    Thomas D. CURTIS v. BLUE CROSS BLUE SHIELD OF LOUISIANA, et al.
    No. 2007-782.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2007.

      Christopher A. Edwards, Edwards Law Firm, Lafayette, LA, for Plaintifi/Appel-Iant Thomas D. Curtis.
    Thomas R. Hightower, Jr., Patrick Wade Kee, John Andrew Durrett, Lafayette, LA, for Defendant/Appellee Louisiana Health Services and Indemnity Company, d/b/a Blue Cross/Blue Shield of Louisiana.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

h The plaintiff filed suit against the defendant insurance company arguing that it increased his premiums in violation of La. R.S. 22:228 and La.R.S. 22:229.1. Additionally, he alleged that the defendant committed fraud by not disclosing that it was utilizing a durational factor when determining the amount of his premiums. After a partial summary judgment was granted in the plaintiffs favor, the matter proceeded to trial. At the close of the plaintiffs case, the defendant moved for an involuntary dismissal, arguing that the plaintiff did not meet his burden of proof. The trial court granted the motion and dismissed the plaintiffs case. It is from this ruling that the plaintiff now appeals. For the following reasons, we affirm.

Factual and Procedural Background

In February 1999, the plaintiff, Thomas D. Curtis, and his wife obtained an individual health insurance policy with the defendant, Louisiana Health Service and Indemnity Company d/b/a Blue Cross Blue Shield of Louisiana (Blue Cross). The policy had an initial deductible of $500.00 and a monthly premium of $391.48. In January 2000, the monthly premium was increased to $432.21, and the deductible was increased to $750.00. Mr. Curtis was diagnosed with multiple sclerosis in September 2000. According to Mr. Curtis, his policy premiums continued to periodically increase, ultimately reaching $1,241.50 by March 2006. He filed suit against Blue Cross, alleging that by continuing to increase his premiums, in violation of La. R.S. 22:228 and La.R.S. 22:229.1, it unilaterally cancelled his policy. By amended petition, Mr. Curtis contended that Blue Cross committed fraud by failing to disclose that it was utilizing a “durational factor” to increase his premiums over the length of the policy.

|2On September 3, 2004, Mr. Curtis filed a motion for summary judgment, arguing that: (1) Blue Cross could not increase his premiums after September 18, 2000, the day that he was diagnosed with multiple sclerosis; (2) Blue Cross violated the law by charging him a “durational rating” that was never disclosed to him until January 2003; and (3) as a result of its fraud in using a durational rating, Blue Cross owed him attorney fees. Following a hearing, the trial court signed a judgment on March 17, 2005, in which it found that:

(1) By increasing premiums on the policy issued to Thomas D. Curtis, BlueCross has violated [La.R.S.] 22:228. Summary judgment on this issue is granted and the defendant is prohibited from changing their premiums on said policy above $432.21 per month with a deductible of $750.00 without prior court approval;
(2) By increasing premiums on the policy issued to Thomas D. Curtis, BlueCross has violated [La.R.S.] 22:229.1. Summary judgment on this issue is also granted in favor of plaintiff and defendant is prohibited from changing the premiums in said policy above $482.21 per month with a deductible of $750.00 without prior court approval;
(3) The Motion for Summary Judgment based upon fraud is denied;
(4) Defendant is cast for all cost[s] of this motion; and
(5) This is not a final Judgment as additional issues remain for determination by the Court.

Pursuant to a stipulation signed by the parties on March 24, 2005, they agreed that the March 17, 2005 judgment was not a final judgment and that it was “subject to revision at any time prior to submission as a final judgment[.]” On November 15, 2005, Mr. Curtis filed another motion for summary judgment concerning the following issues: (1) “date of receipt or notice of a covered claim as referred to in [La.R.S] 22:228 and 22:229.1”; (2) “specific amount of back-time overpaid premiums reimbursement owed by BlueCross to THOMAS CURTIS”; (3) “specific amount of | ^prescription co-payment reimbursement owed by BlueCross to THOMAS CURTIS”; and (4) “attorney fees.” In response, Blue Cross filed its own motion for summary judgment, alleging that Mr. Curtis could not prove that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Following a hearing, the trial court denied both motions for summary judgment.

Trial of the matter was held on August 15, 2006. At the close of Mr. Curtis’ case, Blue Cross moved for an involuntary dismissal, arguing that Mr. Curtis did not prove his fraud allegation or that the increase in premiums violated either La.R.S. 22:228.6 or La.R.S. 22:229.1. The trial court granted the motion. Mr. Curtis subsequently filed a motion for new trial, which the trial court denied. Mr. Curtis now appeals, raising the following issues:

(1) Was the trial judge manifestly erroneous in dismissing plaintiffs case at the end of plaintiffs presentation of evidence?
(2) Did plaintiffs case meet the requirements of La.R.S. 22:228?
(3) Did plaintiffs case meet the requirements of La.R.S. 22:229.1?
(4) Did BlueCross BlueShield commit fraud upon Thomas Curtis by applying a “durational factor” to increase his premiums and not telling him about it during the years 2000, 2001, and 2002?

Discussion

Involuntary Dismissal

Mr. Curtis contends that the trial court erred in dismissing his case at the end of his presentation of evidence.

Louisiana Code of Civil Procedure Article 1672(B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may [¿then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

In Koonce v. Dousay, 06-1498, p. 3 (La. App. 3 Cir. 3/7/07), 952 So.2d 893, 895 (citations omitted), this court stated:

The trial court is granted much discretion in determining whether to grant an involuntary dismissal. If after considering and weighing the plaintiffs evidence, the trial court determines that the plaintiff has not met his burden of proof, it must dismiss the plaintiffs case. The trial court’s grant of an involuntary dismissal is subject to the well-settled manifest error standard of review.

When moving for an involuntary dismissal, Blue Cross addressed Mr. Curtis’s fraud allegation:

The Court had previously entered a preliminary ruling saying that no fraud had occurred and there were no attorneys fees, et cetera, available. We would re-urge that at this time. There was no evidence presented that there was any intent to mislead or misrepresent on the part of Blue Cross, and on top of that', there’s no statutory or regulatory requirement, as has been addressed previously in the litigation that Blue Cross disclose a durational factor.

Additionally, Blue Cross contended that Mr. Curtis did not prove a violation of La.R.S. 22:228.6 or La.R.S. 22:229.1:

There was no evidence presented that it was not applied to the insureds who had the same health plan or policy. There was nothing that was presented to show that Mr. Curtis was singled out or handled differently than others with his type of policy. There was no evidence whatsoever supplied by the plaintiff that would even remotely suggest a violation of 22:229.1 of Louisiana Revised Statutes[.] The pertinent aspect, and in support of our motion, we cite, particularly, the last sentence that specifically says in pertinent part: This section shall not prohibit any group health and accident insurer or any individual accident health insurer from increasing its premium if the increase is applicable to all insureds who have the same individual accident and health plan or policy.
In this particular instance, the statute allows for premium increase. There were premium increases assessed to Mr. Curtis, but there’s no evidence whatsoever that they were assessed in any way, shape, or form other than as to those with this plan or policy. And without that, | ¿plaintiff does not carry the burden to show a violation of 229.1 or 228.6, and in turn, Regulation 51.

After hearing the arguments of counsel for Mr. Curtis, the trial court explained:

Looking at the evidence in the light most favorable to the non-moving party, even doing that, I don’t see where the plaintiff has shown any evidence that there has been a violation of law by the increase in premiums the defendant raised against the plaintiff, and I will grant the motion in favor of the defense.

In his brief, Mr. Curtis states that when granting the motion for involuntary dismissal, the trial court apparently found that the increase in his premiums did not violate the relevant statutes. He argues that this was contrary to the trial court’s previous ruling on his motion for summary judgment, in which the trial court held that “the premium increases applied to Mr. Curtis violated 22:229.1” and that “BlueCross’ actions did in effect unilaterally cancel plaintiffs policy in violation of 22:228.” According to Mr. Curtis, the law of the case doctrine prohibits the trial court from reconsidering and reversing its prior rulings of law in the same case. Mr. Curtis notes that although this doctrine is discretionary, it should be applied in this case because the trial “judge was manifestly erroneous in changing his mind on these issues.”

“Typically, the law of the case doctrine applies to previous decisions of an appellate court on a particular issue, not to decisions of the trial court.” Firstar Communications of La., L.L.P. v. Tele-Publishing, Inc., 00-2219, 00-2220, p. 5 (La. App. 4 Cir. 8/29/01), 798 So.2d 1032, 1035-36. However, the doctrine does relate to “the binding force of trial court rulings during later stages of the trial[.]” Petition of the Sewerage & Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). In Leger v. Weinstein, 03-1497, p. 6 (La.App. 3 Cir. 10/27/04), 885 So.2d 701, 705, unit denied, 04-2899 (La.2/4/05), 893 So.2d 882, writ denied, 04-2903 (La.2/4/05), 893 So.2d 873, this court held that the “law of the case doctrine essentially provides that final judgments rendered during the course of litigation become the law of the parties to that litigation.”

Louisiana Code of Civil Procedure Article 1915 provides in pertinent part:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues or theories ... the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Here, the partial summary judgment did not obtain the force of a final judgment as the trial court did not designate it as such. Rather, the trial court indicated that the March 17, 2005 judgment was “not a final Judgment as additional issues remain for determination by the Court.” Furthermore, the parties stipulated that this judgment was not a final judgment and that pursuant to Article 1915(B)(2), it could be revised at any time prior to submission as a final judgment. Because there was no final judgment, the law of the case doctrine is inapplicable. Accordingly, this assignment has no merit.

Louisiana Revised Statutes 22:228 and 22:229.1

Mr. Curtis asserts that the trial court erred in finding that he did not prove that Blue Cross violated La.R.S. 22:228 and La.R.S. 22:229.1.

Louisiana Revised Statutes 22:228 provides in pertinent part:

|7A. No group, individual, family group, or blanket health insurer shall unilaterally cancel a policy after the insurer has received any covered claim or notice of any’ covered claim for a terminal, incapacitating, or debilitating condition if the insured continues to meet all other eligibility criteria as provided under Part VI-C of this Chapter.
B. In this Section “terminal, incapacitating, or debilitating condition” means ... any other disease, illness, or condition which a physician diagnoses as terminal, or any mental or physical handicap which renders a person incapable of self-employment, provided that the handicapped person is chiefly dependent upon the policyholder, employee, or member for support and maintenance.
C. This Section shall not be construed to prohibit the insurer from increasing the rate for the group, as provided in R.S. 22:228.1 through 228.6.

Louisiana Revised Statutes 22:229.1 provides:

No health and accident insurer may unilaterally cancel a policy of insurance except for nonpayment of premiums, increase the premium for such policy, or reduce the benefits provided by such insurance policy after receipt or notice of any covered claim. The insurer may cancel the policy, as otherwise provided by law, after the claimant has been discharged from treatment for that condition and no further claims for that condition are expected, provided there has been no other receipt or notice of claim under that policy. This Section shall not prohibit any group health and accident insurer or any individual accident and health insurer from increasing its premium if the increase is applicable to all members of the group insurance plan, or all insureds who have the same individual accident and health plan or policy.

It is undisputed that Mr. Curtis had an individual health insurance policy with Blue Cross. The source of contention is whether Blue Cross could increase Mr. Curtis’s premiums once it had knowledge of his disabling condition, i.e., multiple sclerosis. Mr. Curtis argues that “once a policyholder has been diagnosed with a disabling disease then, as long as that claim is active, [the insurer] cannot increase the policy premiums over and above what any other policy holder would have to pay.” According to Mr. Curtis, the increased premiums and deductible “amount[ed] to a prohibited cancellation of his policy, just as if the policy itself would have been |scancelled by Blue Cross. It is obvious that Blue Cross is, in effect, canceling the policy by making it unaffordable.”

Conversely, Blue Cross argues that the increase in premiums was valid under the terms of its policy and La.R.S. 22:229.1. It further argues that the law does not prohibit an increase in premiums after a diagnosis of a disabling condition as long as the increase is applicable to “all insureds who have the same individual accident and health plan or policy.” Blue Cross, however, explained that with regard to Mr. Curtis’s policy, a durational factor was applied to increase his premiums over the length of the policy. It argues that the utilization of a durational factor is entirely within the purview of La.R.S. 22:228.6. Moreover, it notes that Mr. Curtis’s policy |9is still in effect insofar as he continues to pay his monthly premiums.

At the outset, we note that Mr. Curtis’s policy, which was entered into evidence, specifically states that Blue Cross has the right to alter the fees associated with the policy. The relevant provision states:

E. Cancellation of Contract or Change of Fees:

3. We reserve the right to change the benefits of the Contract by giving thirty (30) days written notice to the Member at his last address shown in the Company’s records. We also reserve the right to change the fees for the Contract after the first twelve (12) months of the Member’s coverage and every six (6) months thereafter, and will give forty-five (45) days written notice to the Member at his last address shown in the Company’s records before any increase of twenty percent (20%) or more in the policy rates.

The record indicates that Mr. Curtis received a letter dated January 6, 2000 in which Blue Cross informed him that his monthly premiums would be increased, 110effective March 1, 2000. He was given the option of increasing his deductible, which meant that his premiums would not be greatly increased. Mr. Curtis exercised this option. This evidence shows that Mr. Curtis’s premiums began increasing before he was diagnosed with multiple sclerosis in September 2000. Furthermore, the above provision puts Mr. Curtis on notice that the fees (his premium) may be changed every six months following the first twelve months that the policy is in effect.

Moreover, while La.R.S. 22:229.1 states that an insurer may not increase the premium for a health insurance policy after receipt or notice of any covered claim, it does provide that an individual health insurer may increase its premium “if the increase is applicable to ... all insureds who have the same individual accident and health plan or policy.” In an affidavit, Eric Harrington, Blue Cross’s Director of Marketing Support, set forth the factors used to determine Mr. Curtis’s premium for each new year. Mr. Harrington asserted that “[a]ll the rate increases applied to Mr. Curtis’ policy ... were increases applied in a monetarily identical manner to all insureds with the same individual health insurance policy as Mr. Curtis, all factors being equal.” (Emphasis added).

By affidavit, Julie Landry, Blue Cross’s Actuarial Analyst, stated that the premium increases were “a result of: the durational factor applicable to all individual major medical insurance policies; age bracket changes for Mr. Curtis; age bracket changes for Ms. Curtis; and increases to the ‘selling rate’ applicable to all Blue Max contracts.” She explained how the dura-tional factor was determined and applied. More importantly, she affirmed that “Mr. Curtis’ durational rate increase was not determined by his own claims experience, the durational rate increase was not unique Into his policy or even to Blue Max policies. It was applicable to all major medical insurance policies offered by Blue Cross. Mr. Curtis was not singled out in any way.”

At trial Mr. Curtis did not show that the increase in premiums was due to his medical condition and/or claims history. Furthermore, Blue Cross presented evidence which demonstrated that it complied with the applicable statutes. The affidavits of Mr. Harrington and Ms. Landry clearly indicated that the increase in premiums was applied uniformly to those policyholders who had the same policy that Mr. Curtis had. According to Ms. Landry, “all major medical insurance policies offered by Blue Cross[,]” were subject to a dura-tional rate increase. Moreover, La.R.S. 22:228.6 allows increases based on a dura-tional factor. Given the foregoing evidence, we find that the record supports the trial court’s determination that Blue Cross did not violate La.R.S. 22:228 and La.R.S. 22:229.1 by increasing Mr. Curtis’s premiums.

Accordingly, this assignment is without merit.

Fraud

Mr. Curtis argues that “in neither the policy nor any of the advertising for BlueCross nor even their letters of explanation of rate changes in the year 2000, 2001, and 2002 did they ever mention a ‘durational factor’ being used ... in the [djermination of health insurance premiums.” Rather, Mr. Curtis alleges that it was not until 2003 that Blue Cross revealed this information, and it was only disclosed after counsel for Mr. Curtis inquired why his premiums were increasing. Mr. Curtis contends that had he known that “Blue Cross was applying a durational factor to increase his rate he could have obtained other insurance that did not have a durational factor applied to it before he was diagnosed [with] multiple sclerosis in September |12of 2000.” According to Mr. Curtis, he cannot obtain another health insurance policy because he now has a preexisting condition.

Louisiana Civil Code Article 1953 defines fraud as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” Therefore, in order to succeed on an action for fraud against a party to a contract, three elements must be proven:

(1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to (a cause of) the contract.

Shelton v. Standard/700 Assocs., 01-587, p. 5 (La.10/16/01), 798 So.2d 60, 64.

At the outset, we note that when rendering its decision, the trial court did not specifically address the fraud issue insofar as it only stated that “I don’t see where the plaintiff has shown any evidence that there has been a violation of law by the increase in premiums the defendant raised against the plaintiff.” However, in its judgment, the trial court stated, “Plaintiff failed, as a matter of law, to sustain his burden of proof by a preponderance of the evidence[.]” It then granted the involuntary dismissal and dismissed all claims against Bine Cross.

After reviewing the record, we find that it does not support a determination that Blue Cross committed fraud. The evidence shows that Blue Cross sent Mr. Curtis letters in 2000, 2001, and 2002, informing him that there would be a premium adjustment on his policy. Blue Cross stated: ‘Tour premium is determined by the level of health care costs, your age, your covered spouse’s age, if applicable, and your geographic location. As these factors change, we must adjust your premium.”

|iaIn a 2003 letter, however, Blue Cross explained: ‘Tour premium is determined by the overall level of health care cost, your age, your covered spouse’s age, if applicable, your geographic location, and duration of coverage, which is the length of time your policy has been in force.”

We find that Mr. Curtis has not proven that Blue Cross had the intent to obtain an unjust advantage or to cause damage or inconvenience to him. Mr. Curtis’s argument solely rests on when Blue Cross disclosed the use of a durational factor. He does not cite any jurisprudence or statutory law to support his position. Therefore, “we find that [Mr. Curtis’s] conjectural allegations of fraud are too speculative.” Louisiana Pigment Co., L.P. v. Scott Constr. Co., Inc., 06-1026, p. 10 (La.App. 3 Cir. 12/20/06), 945 So.2d 980, 986. Given the circumstances, we find that the trial court did not err in dismissing Mr. Curtis’s fraud claim.

This assignment has no merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against the plaintiff, Thomas D. Curtis.

AFFIRMED.

      . Louisiana Revised Statutes 22:228.6 provides in pertinent part:
      B. (1) The Department of Insurance shall promulgate regulations no later than January 1, 1994, that provide criteria for the community rating of premiums for any hospital, health, or medical expense insurance policy, hospital or medical service contract, health and accident policy or plan, or any other insurance contract of this type, that is small group or individually written.
      (2)(a) The regulations shall place limitations upon the following classification factors used by any insurer or group in the rating of individuals and their dependents for premiums:
      (i)Medical underwriting and screening.
      (ii) Experience and health history rating.
      (iii) Tier rating.
      (iv) Durational rating.
      (b) The premiums charged shall not deviate according to the classification factors in Sub-paragraph (a) of this Paragraph by more than plus or minus thirty-three percent for individual health insurance policies or subscriber agreements. In no event shall the increase in premiums for a small employer group policy vary from the index rate by plus or minus thirty-three percent.
      (3) The following classification factors may be used by any small group or individual insurance carrier in the rating of individuals and their dependents for premiums:
      (a) Age.
      (b) Gender.

        (c) Industry.
      (d) Geographic area.
      (e) Family composition.
      (£) Group size.
      (g) Tobacco usage.
      (h) Plan of benefits.
      (i) Other factors approved by the Department of Insurance.

      . With regard to the modification of fees associated with a health insurance policy, La.R.S. 22:250.13 provides:
      D. At the time of coverage renewal, a health insurance issuer may modify the health insurance coverage for a policy form offered to individuals in the individual market so long as such modification is consistent with state law and effective on a uniform basis among all individuals with that policy form.

      . We note that at trial, counsel for Mr. Curtis introduced the entire record into evidence.