author: PARRO, J. GUIDRY, J.,

text:
    OUR LADY OF the LAKE REGIONAL MEDICAL CENTER v. Claudette MATTHEWS.
    No. 2006 CA 1584.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2007.

      Anthony P. Palermo, Breazeale, Sachse & Wilson, LLP, Baton Rouge, LA, for PlaintifflDefendanb-in-Reeonvention/Ap-pellee Our Lady of the Lake Regional Medical Center.
    Lee W. Rand, New Orleans, LA, for Defendant/Plaintiff-ln-Reconvention/Ap-pellant Claudette Matthews.
    Before PARRO, GUXDRY, and McClendon, jj.
   PARRO, J.

LA former employee appeals from a judgment of the Office of Workers’ Compensation Administration (OWC), which declared that she was no longer entitled to continued workers’ compensation benefits and dismissed her disputed claim for benefits. For the following reasons, we affirm.

Facts and Procedural History

On October 3, 2001, Claudette Matthew stuck her finger with a needle while drawing blood from an AIDS patient during her employment as a phiebotomist for Our Lady of the Lady Regional Medical Center (OLOL). Subsequently, OLOL voluntarily began to pay workers’ compensation benefits to Mrs. Matthews in connection with an alleged resulting mental injury.

On March 31, 2005, OLOL filed a petition seeking to have the OWC determine if Mrs. Matthews had recovered from the 2001 Injury such that she was no longer disabled as a result of her injury. In her answer, Mrs. Matthews filed a reconven-tional demand, alleging that she was permanently totally disabled as a result of the 2001 incident. In addition to workers’ compensation benefits, Mrs. Matthews sought penalties and attorney fees. Subsequently, OLOL petitioned the OWC to have Mrs. Matthews undergo an independent medical examination by an appointed physician. OLOL’s motion was opposed by Mrs. Matthews. Prior to trial, the parties stipulated that Mrs. Matthews was presently afflicted by a psychiatrically disabling condition as diagnosed by various psychiatrists in accordance with DSM criteria. Thus, the issue presented was one of causation.

Following the trial of this matter, the workers’ compensation judge (WO) found that Mrs. Matthews failed to prove by clear and convincing evidence that her physical injury caused her mental injury, in that her post-traumatic stress disorder and depression preexisted the 2001 incident. The WCJ further declared that the needle stick accident did not exacerbate her preexisting mental condition. From the judgment |3dismissing her claim for continued workers’ compensation benefits, Mrs. Matthews appealed, contending that the WO erred in (1) finding that, prior to the 2001 incident, she experienced and was disabled by the following conditions: schi-zoaffective disorder, panic disorder with phobias, post-traumatic stress disorder, and depression; (2) failing to find that the accident exacerbated or aggravated her preexisting condition rendering her disabled; (3) placing the burden of proof on Mrs. Matthews, as she was not the plaintiff; (4) failing to give greater weight to the testimony of her treating physicians than to Dr. Rennie Culver who personally evaluated her at OLOL’s request on one occasion; (5) ignoring the stipulation relative to the testimony of her son regarding her mental status; (6) failing to find that she had satisfied her burden of proving causation by clear and convincing evidence of the disabling psychiatric condition or an exacerbation or aggravation of the preexisting psychiatric condition; and (7) giving any consideration to the testimony of Dr. Culver.

Discussion

In order for a claimant to recover benefits under the workers’ compensation law, he or she must prove that he or she has suffered a personal injury as a result of a work-related accident and that the injury has rendered him or her either temporarily totally disabled, permanently totally disabled, and/or permanently partially disabled, or entitled to supplemental earnings benefits. Alfred v. Mid-South Machine, Inc., 594 So.2d 937, 939 (La.App. 3rd Cir.1992); see LSA-R.S. 23:1021, 1031, and 1221.

In this case, Mrs. Matthews contends she suffered a mental injury caused by a work-related physical injury, producing a disability which prevents her from engaging in any gainful employment. Compensation for a mental injury resulting from a work-related accident producing physical injury is governed by LSA-R.S. 23:1021(8)(c), which states in pertinent part:

A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not eom-pensable | ¿pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.

Thus, where a mental Injury or illness develops secondary to a physical injury sustained in a work-related accident, a claimant is entitled to workers’ compensation benefits for any disability resulting from the mental injury or illness and to reimbursement for medical expenses for treatment of the mental injury. Charles v. South Cent. Industries, 96-0883 (La.11/25/96), 683 So.2d 706, 708. In order to prevail, a claimant must prove by clear and convincing evidence that the physical injury caused the mental injury. LSA-R.S. 23:1021(8)(c). Further, the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and the diagnosis must meet the most current criteria established by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. LSA-R.S. 23:1021(8)(d); Charles, 683 So.2d at 709.

Although compensation laws are to be construed liberally in the claimant’s favor, the claimant’s burden of proof is not relaxed. Charles, 683 So.2d at 709. To prove a matter by clear and convincing evidence means a party must demonstrate that the existence of a disputed fact is highly probable, much more probable than its nonexistence. Bundren v. Affiliated Nursing Homes, Inc., 94-808 (La.App. 3rd Cir.2/1/95), 649 So.2d 1177, 1179. Disability can be proved by medical and lay testimony. The factual determination by the WO as to whether the claimant has discharged his or her burden of proof should not be disturbed on review absent manifest error. Charles, 683 So.2d at 709. A reviewing court must analyze claimed disability caused by mental conditions with utmost caution in view of the nebulous characteristics of mental conditions and the possibility of symptoms being easily feigned. Westley v. Land & Offshore, 523 So.2d 812, 813 (La.1988); see Williams v. Regional Transit Authority, 546 So.2d 150, 158 (La.1989).

The record indicates that Mrs. Matthews was violently raped on or about June 5, 1997. After this traumatic event, Mrs. Matthews suffered with psychiatric problems for which she had to be hospitalized several times. She had not been hospitalized for her psychiatric condition during the two-year period before being stuck by the needle. | ¡^According to the Mat-thewses, prior to the 2001 needle stick, Mrs. Matthews had been working and caring for her family. Although she suffered from a history of depression, Mrs. Matthews urged that she did not have a prior history of visual hallucinations or extreme psychotic behavior. According to the Mat-thewses and Dr. James B. Denney, a psychiatrist, Mrs. Matthews’ symptomatology changed after she was stuck by the needle in that her hallucinations now related to the AIDS patient. Mrs. Matthews argued that this change gave rise to a presumption of causation as to an aggravation and acceleration of her preexisting condition. Thus, she urged that she proved that her disability presumably resulted from the accident.

The medical records that were introduced at trial show an extensive medical history. Mrs. Matthews was first seen by a doctor at Ochsner Clinic Foundation (Ochsner) on June 24, 1997, for depression, back pain, and left shoulder pain. At that time, she complained of being depressed and of a lack of sleep, energy, and appetite. These conditions were related to the rape which had occurred on June 5, 1997. After being discharged from Northshore Psychiatric Hospital, she again sought treatment on August 1, 1997, at Ochsner for weight gain, bloating, swelling of her extremities, neck pain, back pain, and insomnia, at which time she related that she was hearing voices. Subsequently, Mrs. Matthews began receiving treatment from Dr. Denney for the mental injuries that she sustained as a result of the rape while continuing to seek treatment at Ochsner for her resulting physical and mental injuries. She was hospitalized multiple times in 1998 because Of depression and suicidal intentions.

On December 3, 1998, Mrs. Matthews saw Dr. R. Paul Guilbault, III at Ochsner and complained of headaches and continued problems with her lower back and depression. She reported having difficulty doing daily activities and spending time with and showing affection for her family. As of March 8, 1999, she reported that she continued to have lower back pain and a lot of depression on a daily basis and was having difficulty getting herself to do anything. Dr. Guilbault opined that the depression was the main underlying cause of her lower back pain. Dr. Guilbault’s notes reflect that |fiwithin the past month, Mrs. Matthews had been hospitalized in two different psychiatric units.

From March 11, 1999, to March 24, 1999, Mrs. Matthews was hospitalized at Washington-St. Tammany Regional Medical Center’s Psychiatric Acute Care Unit for major depression with psychotic features and suicidal plans. The presence of auditory hallucinations was noted. Dr. Sidney C. Strickland’s diagnosis was schi-zoaffective disorder. According to Dr. Stickland, Mrs. Matthews was experiencing hallucinations and was psychotic with severe suicidal ideations.

During an Ochsner visit with Dr. Guil-bault on May 6, 1999, Mrs. Matthews voiced a fear of being out in public on her own because she was scared of running into people who are aware of her rape and possibly being attacked again while alone. On January 14, 2000, Mrs. Matthews saw Dr. Guilbault, complaining of an increase in her level of depression following reports of rapes in New Orleans. Since her mental condition did not appear to be Improving, Dr. Guilbault felt that she was a candidate for electro convulsive therapy. On February 7, 2000, Dr. Denney noted that Mrs. Matthews had delusions and hallucinations related to post-traumatic stress disorder. She was prescribed Risperdal, an anti-psychotic medication, for paranoid thinking and hallucinations at that time.

On January 17, 2001, Dr. Denney noted that Mrs. Matthews was suffering with increased flashbacks and nightmares about the rape. In April 2001, Dr. Denney noted that Mrs. Matthews suffered an increase in post-traumatic stress disorder symptoms, including. flashbacks, intrusive thoughts, and sleeplessness as a result of having met the man who raped her. Mrs. Matthews had regressed and was more symptomatic. She reported that she felt like people were watching her and that she was hearing things, i.e., someone walking in her home. The May 10, 2001 records from United Behavioral Health refer to the onset of panic attacks triggered as a result of her rapist returning to town.

|70n August 28, 2001, Dr. Denney noted that Mrs. Matthews was possibly suicidal. By September 18, 2001, Dr. Denney felt that the presence of Mrs. Matthews’ suicidal thoughts warranted contact with the police. Medical records of Dr. Denney indicate that in September 2001, Mrs. Matthews was lethargic, depressed, and anxious. Nonetheless, Dr. Denney noted that she did not have any distortions or delusions, except for the post-traumatic stress disorder type of symptoms, or any hallucinations or allusions, except from “flashback phenomena,” which in his opinion were not truly hallucinations in the clinical sense. Based on his assessment, Dr. Den-ney believed that Mrs. Matthews was possibly suicidal and recommended that she be hospitalized. According to Dr. Denney, this recommendation was based on the fact that she was extremely over-medicated.

On September 27, 2001, Mrs. Matthews was seen by Dr. Guilbault at Ochsner for an exacerbation of her neck and back pain due to an August 27th motor vehicle accident. Mrs. Matthews reported that she had been having a lot of pain in her low back that radiated down into her right leg into her calf. She explained that at that time, her right foot felt cold and her right leg gave out. Mrs. Matthews informed Dr. Guilbault that she had experienced an increase in her depression due to the pain. Dr. Guilbault noted that she was very depressed and was suffering from hopelessness. She also reported that she felt that she was becoming a severe burden on her family and that she had been forced to stop working because of the automobile accident. At that time, Dr. Guilbault thought that Mrs. Matthews needed to be hospitalized as she was suffering from major depression. Mrs. Matthews was opposed to being hospitalized, as she did not feel that it had helped her In the past and she did not want Dr. Guilbault to relate his concerns to Dr. Denney.

The following day, September 28, 2001, Dr. Denney noted that Mrs. Matthews was non-complaint. She refused to be hospitalized and declined electroconvulsive therapy treatment. Dr. Denney terminated his care of Mrs. Matthews by letter dated October 16, 2001, as a result of her being verbally abusive and threatening to his staff and her failure to comply with her medication contract.

| ¡¡When Dr. Denney next saw Mrs. Matthews on December 17, 2001, he noted her history of being non-compliant with treatment and medication plans and not following his recommendations. Following the needle stick, Dr. Denney did not feel comfortable treating Mrs. Matthews as she had become so psychotic that she would not comply with anything. On that date, she was admitted to Northshore Psychiatric Hospital with a major depressive disorder with psychotic features. Dr. Denney terminated his care of Mrs. Matthews a second time pursuant to a letter dated January 10, 2002, as a result of her noncompliance and verbal abuse of his staff.

Concerning his treatment of Mrs. Matthews, Dr. Denney testified that Mrs. Matthews had significant preexisting psychiatric difficulties following the 1997 rape. His original diagnosis was post-traumatic stress disorder. He felt that she made modest progress, in that she got well enough to go back to work. In Dr. Den-ney’s opinion, although Mrs. Matthews was not symptom free prior to the needle stick, she was functioning marginally at work and home. According to Dr. Denney, the needle stick significantly changed her symptomatology, mental condition, and functioning level, pushing her over the edge. Dr. Denney’s post-needle stick diagnosis was major depression with psychotic features.

At her January 24, 2002 appointment at Ochsner, Mrs. Matthews discussed the needle stick incident and her subsequent treatment. Mrs. Matthews explained that she injured her knee as a result of banging it on the side of the table when she was stuck by the needle. She also complained of continued back pain. She admitted to having a lot of anxiety due to her back pain, as well as her concern about HIV.

Because Dr. Denney refused to continue to treat Mrs, Matthews, she began receiving treatment from Dr. Alan Coe on February 27, 2002. Dr. Coe’s diagnosis of Mrs. Matthews’ condition was schizoaffective disorder and panic disorder with phobia. Dr. Coe noted that Mrs. Matthews was suffering from delusions and that her thinking and logic were faulty. Mrs. Matthews reported a disturbance of her affect or moods, a lot of tearfulness, depression, and apathy, inability to cope or enjoy herself, sleep disturbance, suicidal ideation, a good deal of paranoia, and some hallucinations. Dr. |9Coe was not sure what Mrs. Matthews’ functioning level was prior to February 2002; however, it was his understanding that she was a lot more functional before the needle stick, in that she had held a job for a period of six to eight months.

Dr. Coe testified that he did his best in attempting to review the medical records of Dr. Denney, whose writing was “pretty much illegible” except for some letters. According to Dr. Coe, Dr. Denney treated Mrs. Matthews mostly for depression. Nothing in his review of Dr. Denney’s records made Dr. Coe believe that Dr. Denney saw any of the seriousness of what he saw, that is, delusions, hallucinations, and psychosis, until December 2001. Dr. Coe explained that post-traumatic stress disorder is not a psychotic diagnosis, which is an anxiety disorder in reaction to a traumatic event. Although Mrs. Matthews experienced some waxing and waning over the course of Dr. Coe’s treatment of her, Mrs. Matthews’ condition did not improve much. The only stressor related to Dr. Coe by Mrs. Matthews was the needle stick. Dr. Coe explained that the majority of Mrs. Matthews’ delusions and visions centered on the stick incident. She reportedly had visions of the needle and conversations with people who did not exist who told her that she had HIV or things of that nature. These things were the central theme of a delusional system, as opposed to facts surrounding the assault or the perpetrator. Dr. Coe believed that Mrs. Matthews’ reports of seeing things were credible.

Notably, at a follow up appointment on March 27, 2002, at Ochsner for her back and neck pain related to at least two automobile accidents and perhaps other injuries, Mrs. Matthews reported that although she was still seeing a psychiatrist at that time, she was off all of her psychiatry medications except Klonopin. After considerable improvement, her psychiatric status was noted as being stable. On May 22, 2002, Mrs. Matthews saw Dr. Guilbault at Ochsner for treatment of chronic problems with her |1f)neck, left knee, and lower back pain. Mrs. Matthews denied any depression and reported that she was off of her depression medication.

Pursuant to OLOL’s request for a second medical opinion, Mrs. Matthews was examined for approximately three-and-a-half hours by Dr. Rennie Culver, a psychiatrist. In connection with his examination, Dr. Culver had reviewed the records of all of the various medical providers who treated Mrs. Matthews, including those of Drs. Coe and Denney. His diagnosis of Mrs. Matthews’ condition was psychotic (delusional) and depressed (psychomotor retardation/vegetative signs of depression). This diagnosis was based on her reports of having had hallucinations involving the AIDS patient and believing the following: that she had AIDS in the absence of any objective evidence, that God had revealed to her that she had AIDS, and that she was lied to and deceived by those that said that the HIV tests had repeatedly been negative. Despite all of the references to things related to the needle stick, Dr. Culver opined that Mrs. Matthews’ current mental condition was not related to the needle stick.- The following factors led him to the conclusion that her condition was preexisting: (1) she had ideas of reference, symptoms of psychosis, and depression for years, (2) she had been in and out of psychiatric hospitals, and (3) schizophrenia is a “heredity disease.”

According to Dr. Culver, the needle stick resulted in an exacerbation of her condition in that it temporarily caused some degree of anxiety. Nonetheless, she had a long history of paranoia, delusions, and non-compliant behavior regarding the taking of prescribed medications. According to Dr. Culver, the needle stick is only one of the things that she was delusional about. Dr. Culver explained that when a patient is paranoid and is subject to delusional thinking, anything that happens to the patient, even the most innocuous things, can be incorporated into the delusional system, which may be fixed and encapsulated but they also tend to spread.

In Although the evidence suggests that the WCJ may have failed to note that the needle stick incident temporarily exacerbated or aggravated her preexisting mental condition, we are unable to find that the WO manifestly erred in finding that Mrs. Matthews failed to prove by clear and convincing evidence that her current mental condition was causally related to the 2001 needle stick. Nor are we able to conclude that in so finding, the WCJ ignored the stipulation relative to the testimony of Mrs. Matthews’ son. Although the needle stick became at times central to her delusions, the evidence in the record reflects that the following additional factors had an impact on Mrs. Matthews’ mental condition and her tendency to overmedicate during the time period in question: the 1997 rape, reports of rapes in New Orleans, meeting her rapist who was back in town, the physical Injuries suffered from at least two separate automobile accidents, the pregnancy of her 16-year-old daughter in the beginning of 2002, and her inability to get her paycheck straightened out around April 4, 2002.

The evidence as a whole supports the position that the depression experienced by Mrs. Matthews in March 1999 was with psychotic features and suicidal plans. At that time, she was having auditory hallucinations. Dr. Strickland’s diagnosis of Mrs. Matthews’ condition in March 1999 was schizoaffective disorder, the same as that of Dr, |i2Coe on February 27, 2002. Dr. Coe’s diagnosis also included panic disorder with phobia. Notably, Mrs. Matthews had also experienced panic attacks for one reason or another prior to the needle stick. When questioned about Dr. Stickland’s 1999 diagnosis of schizoaffective disorder, Dr. Denney denied that Mrs. Matthews was schizoaffective at that time. Dr. Den-ney instead opined that she had experienced bipolar spectrum or major depression with psychotic features. However, because of the delusions and hallucinations that Mrs. Matthews was experiencing in February 2000, Dr. Denney prescribed Risperdal. Furthermore, the March and May 2002 Ochsner medical records, which indicated that Mrs. Matthews’ psychiatric status was stable and that she was no longer taking medication for depression, contradicts Dr. Coe’s testimony that Mrs. Matthews’ condition did not improve much while he was treating her.

Given the totality of the evidence presented, and in light of Mrs. Matthews’ burden to establish by clear and convincing evidence that her mental injury was caused by the October 3, 2001 needle stick, we are unable to find that the WO erred. See LSA-R.S. 23:1021(8)(e).

Decree

For the foregoing reasons, the judgment of the Office of Workers’ Compensation Administration is affirmed. Costs of this appeal are assessed to Claudette Matthews.

AFFIRMED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

| ^though Mrs. Matthews had pre-exist-ing symptoms of paranoia and delusions, the medical evidence, particularly the testimony and records of Dr. Denney, establish that prior to the needle stick incident, the primary medical concern was depression with suicidal ideation; however, following the needle stick incident, the medical evidence establishes that her symptoms of paranoia and delusions escalated and were the primary focus of medical concern. Further, Dr. Culver acknowledged that there was an exacerbation of Mrs. Matthews’ symptoms, and while he opined that the exacerbation was of no meaningful duration, he failed to address the specific medical evidence demonstrating that the nature and intensity of Mrs. Matthews’ mental illness had changed following the needle stick incident. The evidence also; establishes that at the time of the needle stick incident, Mrs. Matthews’ mental condition was sufficient for her to function in employment and at home, but following the incident she was uniformly found to be unemployable due to her mental condition.

Hence, I believe that Mrs. Matthews established by clear and convincing evidence that her pre-existing mental condition was exacerbated by the needle | astick incident and was thus compensable. I therefore respectfully dissent from the majority’s opinion affirming the judgment denying Mrs. Matthews’ claim.

      . Honorable Robert W. Varnado, Jr. of District 6 presided in this matter.

      . At the time of the accident, the applicable provision was found in paragraph (7); however, pursuant to the statutory revision authority of the Louisiana State Law Institute, paragraph (7) was redesignated as paragraph (8) In 2004. We will refer to paragraph (8) In this opinion.

      . Mrs. Matthews was involved in a minor motor vehicle accident one week prior to May 2, 2001, reportedly producing increased neck and back pain, as well as bilateral shoulder pain and bilateral hip pain.

      . Dr. Coe's understanding to this effect was supported by the testimony of Mr. Matthews, as well as the stipulated testimony of the Matthewses' son.

      . Dr. Coe has seen Mrs. Matthews continuously since February 2002, every one to two weeks.

      . Mrs. Matthews and her family members related the onset of her symptoms to the needle stick incident.

      . This belief was echoed by Dr. Coe, who testified that schizophrenic disorders are likely a biological illness in that they were there all the time in some fashion or another.

      .As stated by Dr. Coe, a patient’s schizophrenic disorder is affected by his environment and experiences.

      . A workers' compensation claimant is entitled to benefits for the aggravation of a preexisting mentid disorder only as long as the aggravation continues. Fuselier v. International Maintenance Corp., 94-792 (La.App. 3rd Cir.2/1/95), 649 So.2d 1197, 1202.

      . Mrs. Matthews challenges the WCJ's placement of the burden of proof on her in light of her position as a defendant in the initial suit for declaratory judgment brought by OLOL. As previously stated, the law places the burden of proof on the person seeking to recover workers’ compensation benefits. See LSA-R.S. 23:1021, 1031, and 1221. The voluntary payment of workers' compensation benefits does not constitute an admission of liability on the part of the employer. LSA-R.S. 23:1204. If the employer chooses this route, the employee is then prohibited from litigating the issue. Section 1204 fosters the humane policies underlying the workers' compensation statutory framework by encouraging voluntary payments to a legitimately injured employee. Snelling Personnel Services v. Duhon, 00-661 (La.App. 3rd Cir.l 1/2/00), 772 So.2d 350, 353.
      In the absence of a judgment ordering OLOL to pay benefits, OLOL was free to discontinue payment of benefits at any time, unless such discontinuance was arbitrary or capricious. See former LSA-R.S. 23:1201.2 (repealed by 2003 La. Acts, No. 1204, § 2-see, current LSA-R.S. 23:1201(1)). At such time, Mrs. Matthews would have been required to file a disputed claim for compensation with the OWC to obtain a determination of her entitlement to workers’ compensation benefits. See LSA-R.S. 23:1310(A). In such an action, the burden of proof would have been on her. The fact that OLOL voluntarily paid benefits and commenced this action rather than simply discontinuing the payment of benefits does not relieve Mrs. Matthews of this burden, especially when considering that she reconvened by filing a disputed claim for compensation. See Snelling Personnel Services, 772 So.2d at 353; see also Capital Mfg. Co. v. Brooks, 99-267 (La.App. 3rd Cir.l 1/3/99), 745 So.2d 825, 830, writ denied, 99-3411 (La.2/4/00) 754 So.2d 236. To find otherwise would discourage an employer from paying voluntarily out of fear that doing so would lead to claimants being presumptively entitled to benefits. Snelling Personnel Services, 111 So.2d at 353.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kenneth VINCENT.
    No. 07-KA-90.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 16, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Kenneth Vincent, Grayson, LA, pro se, Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|sOn November 20, 2002, the Jefferson Parish District Attorney filed a six-count bill of information against the defendant, Kenneth Vincent, and his co-defendant, Sandra D. Gayle (“Gayle”). Counts one, two, three, and five charged the defendant with distribution of hydrocodone, in violation of LSA-R.S. 40:967(A). Count six charged him with distribution of oxyco-done, in violation of LSA-R.S. 40:967(A), and count four charged him with distribution of alprazolam, in violation of LSA-R.S. 40:969(A). The defendant pled not guilty at arraignment.

Numerous pre-trial motions were filed, including a motion to recuse the trial judge. After the motion to recuse was granted, the case was reallotted to another trial judge. Thereafter, the matter came for hearing on defendant’s motion to suppress identification and evidence, which was denied.

|4On April 6, 2005, the defendant proceeded to trial before a twelve-person jury, and on April 7, 2005, the jury found him guilty as charged on all counts, except count two, where the jury returned a responsive verdict of attempted distribution of hydrocodone. On April 18, 2005, the trial judge sentenced the defendant to imprisonment at hard labor for 15 years on counts one, two, three, and five and 10 years imprisonment at hard labor on counts four and six, with the sentences to be served concurrently with each other. The defendant filed a motion for appeal, which was granted.

FACTS

At trial, Agent Caracci of the Jefferson Parish Sheriffs Office testified that he and other officers arranged an undercover drug sale from the defendant and Gayle. A confidential informant introduced an undercover officer, Deputy Gordon, to the defendant and Gayle on September 10, 2002 at the Sav-A-Center parking lot on Clearview Parkway in Metairie. Agent Caracci had the parking lot under surveillance and observed Deputy Gordon enter a green Mazda driven by Gayle and occupied by the defendant. Deputy Gordon testified that, after she entered the vehicle, she purchased 20 Vicodin pills from the defendant. Dan Waguespack, an expert forensic scientist with the Jefferson Parish Crime Lab, testified that these pills contained hydrocodone. On September 12, 2002, Deputy Gordon viewed a photo lineup and identified the defendant as the man who sold her the pills.

On September 13, 2002, Deputy Gordon spoke to the defendant on the telephone and arranged a meeting at Pickles Sports Bar, which is located at the corner of Barry Street and Jefferson Highway. Agent Caracci set up surveillance of 235 Barry Street, where the defendant and Gayle resided, which was very close to Pickles. Gayle and the defendant exited their residence, and Gayle drove to | sPickles Sports Bar. Deputy Gordon testified that she purchased pills from Gayle on this occasion. Mr. Waguespack testified that these pills tested positive for hydroco-done.

On September 18, 2002, Deputy Gordon spoke to the defendant over the telephone to purchase 20 “HP’s,” which Deputy Gordon explained meant Vicodin. Again, Agent Caracci observed Gayle, accompanied by the defendant, drive from 235 Barry Street to Pickles Sports Bar. Deputy Gordon testified that she entered the vehicle and purchased pills from the defendant. Again, Mr. Waguespack testified that these pills contained hydrocodone. At trial, the State played the tape of the September 18th telephone call between the defendant and Deputy Gordon.

On September 27, 2002, Deputy Gordon spoke with the defendant over the phone to purchase 50 “HP’s.” Deputy Gordon told the defendant she had $500 and asked how many “bars” she could buy with the rest of the money. Deputy Gordon explained that “bars” meant Zanbars. The defendant told her the HP’s would cost $300 and she could get 40 “bars” with $200. This recorded conversation was also played for the jury. As with the previous transactions, Agent Caracci observed Gayle and the defendant go to Pickles Sports Bar. When she arrived at Pickles, Deputy Gordon purchased 50 pills that tested positive for hydrocodone and 40 pills that tested positive for alprazolam from the defendant in exchange for $500.

Between September 30, 2002 and October 1, 2002, Deputy Gordon engaged in a series of phone calls with the defendant and Gayle to buy some “O’s,” which Deputy Gordon explained meant Oxycontin. Mr. Waguespack testified that Oxycontin is the brand name for pills containing a high dose of oxycodone. On October 1, 2002, the police followed the defendant and Gayle from their residence to a doctor’s office in Slidell, a pharmacy in Destrehan, and then to Pickles, where | f;they met with Deputy Gordon. Deputy Gordon testified that the defendant gave her a brown bottle containing 30 pills in exchange for $750. Mr. Waguespack testified that these pills testified positive for oxycodone.

Agent Caracci testified that the defendant and Gayle then went to several different Eckerd’s stores and to a Home Depot, where the police stopped and detained them. Agent Caracci testified that Gayle consented to a search of the vehicle. The police found seven pill bottles in the vehicle, two of which were in the defendant’s name. One of the bottles bearing the defendant’s name contained pills that tested positive for hydrocodone, and the other bottle contained Soma. A search of the defendant upon arrest yielded $840 from his pocket, $750 of which was the prerecorded money Deputy Gordon used in the last purchase.

Agent Caracci testified that, after the defendant was incarcerated, the defendant told him that he wanted to give some information to the police. However, Agent Caracci testified that the police were not interested in working with the defendant, due to the nature of his charges.

The defendant testified that' he and Gayle were in a relationship in the 1970’s and, after he was released from prison in November of 2001, they resumed their relationship in December of 2001. The defendant testified he was under the impression that Gayle was a nurse’s aide, but later discovered that she was selling prescription medication. Defendant claimed that he had attempted to sever their relationship, but Gayle pressed domestic violence charges against him in an attempt to prevent him from leaving her. The defendant said he was arrested and went to jail. After he was released, he attempted to leave Gayle again, but she pressed domestic violence charges against him again and he went to jail. 17According to the defendant, Gayle told him she would rather see him in jail than for him to leave her.

The defendant testified that he told his mother and sister about Gayle’s threats. He said he called the F.B.I. in July of 2002 to report that he was being forced into a relationship with Gayle, who was selling prescription pills. The defendant claimed the agents told him that they would investigate and that he would not be prosecuted if what he said was true. The defendant said he believed that the F.B.I. had set up the drug transactions in response to his calls and that he could not terminate the relationship until Gayle was arrested. The defendant stated that the F.B.I. never returned any of his telephone calls, and he did not know the names of the agents with whom he spoke.

The defendant’s mother testified that she observed the defendant telephone the F.B.I. at her residence in July of 2002, but she never received a ' return call. The defendant’s sister testified that she was staying with her mother in July of 2002 and observed the defendant telephone the F.B.I. She stated that, a few days later, an F.B.I. agent called the house and asked for the defendant. She answered the phone and handed it to the defendant.

DISCUSSION

On appeal, in his third assignment of error, the defendant argues that the evidence was insufficient to support the jury’s verdict. When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). Accordingly, we will address the defendant’s third assignment of error before the other assignments.

|sThe constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

The defendant was convicted of three counts of distributing hydrocodone, in violation of LSA-R.S. 40:967(A), one count of distributing oxycodone, in violation of LSA-R.S. 40:967(A), and one count of distributing alprazolam, in violation of LSA-R.S. 40:969(A). Pursuant to those statutes, the State was required to prove that defendant knowingly or intentionally distributed the above-named drugs. Distribution of a controlled dangerous substance is a general intent crime. State v. Pierre, 03-1306 (La.App. 5 Cir. 2/23/04), 869 So.2d 206, 211, unit denied, 04-0959 (La.10/1/04), 883 So.2d 1006. General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed | criminal consequences as reasonably certain to result from his act or failure to act. LSA-R.S. 14:10(2).

The defendant was also convicted of one count of attempted distribution of hydrocodone, in violation of LSA-R.S. 14:27 and 40:967(A). To be found guilty of attempted distribution of hydrocodone, a defendant must have a specific intent to distribute hydrocodone and do or omit an act for the purpose of and tending directly toward the accomplishing of his object. See State v. Housley, 04-347 (La.App. 5 Cir. 9/28/04), 884 So.2d 1204, 1207. Specific criminal intent exists “when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. State v. Lee, 03-901 (La.App. 5 Cir. 12/9/03), 864 So.2d 654, 659.

The defendant contends that the evidence was insufficient to support his convictions because the State failed to prove that he had the criminal intent to distribute the controlled dangerous substances. The defendant argues that he was a participant in the transactions because he believed he was following the F.B.I.’s instructions. The defendant presented this hypothesis of innocence at trial. In returning the guilty verdict, the jury obviously rejected it and found the State’s witnesses were more credible than the defendant’s witnesses.

Although the defendant and his family members testified that he contacted the F.B.I., the defendant never made any other showing that he contacted the F.B.I., or more importantly, that he was acting under the F.B.I.’s instructions. In addition, the defendant’s testimony conflicted with his sister’s testimony, who said that the F.B.I. called to talk to her brother, while the defendant denied any return calls.

|inThe Louisiana Supreme Court has stated that the pertinent question on review is not whether the defendant’s hypothesis of innocence offered a reasonable explanation for the evidence at trial but whether jurors acted reasonably in rejecting it as a basis for acquittal. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517, 520. It is the role of the fact-finder to weigh the credibility of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of-review. State v. Smith, 04-199 (La.App. 5 Cir. 6/29/04), 877 So.2d 1123, 1134, writ denied, 04-2081 (La.1/7/05), 891 So.2d 669. In light of the evidence at trial, we find that the jury rationally rejected the defendant’s hypothesis of innocence.

After reviewing the record and the applicable law, we conclude that the testimony and evidence was sufficient to establish all of the essential elements of the crimes of which the defendant was convicted beyond a reasonable doubt. Accordingly, because the evidence supports the defendant’s convictions under the Jackson standard, this assignment of error is without merit.

In his first assignment of error, defendant asserts that the trial court erred in denying his motion to suppress the evidence, because there was no probable cause to believe that contraband would be found at his residence. The State responds that the trial judge properly denied the motion to suppress because no evidence was seized pursuant to the search warrant for the defendant’s residence.

According to LSA-C.Cr.P. art. 703(D), the defendant generally has the burden of proving the grounds of a motion to suppress:

On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

lnAlthough the defendant contends that the search warrant for his residence was issued without probable cause, the defendant does not point to any evidence that was seized pursuant to that warrant. Because the record of the suppression hearing does not reflect that any evidence was seized pursuant to the search warrant for the defendant’s residence, the trial judge could not have granted a motion to suppress that evidence. As such, the defendant failed to meet his burden of proving the allegations of his motion to suppress the evidence as required by Article 703(D). Accordingly, this assignment of error is without merit.

In his fourth assignment of error, which defendant submitted pro se, he asserts that “[t]he trial court erred in denying the Motion To Suppress The Evidence based on defected [sic] search and arrest warrants.” He contends that the search and arrest warrants were facially defective because the warrants do not clearly reflect the dates they were issued.

At the suppression hearing, Agent Caracci testified that he obtained an arrest warrant for the defendant after the first undercover purchase. Agent Valley testified that arrest warrants were obtained after each undercover purchase.

Agent Valley testified that he obtained a search warrant for the defendant’s residence at 235 Barry Street. He explained that he may have prepared the warrant earlier, but that the judge filled in the actual date it was issued, which was the 30th of September. The search warrant was executed on October 1, 2002. Although Agent Valley identified an exhibit shown to him by the State as the search warrant for the residence, the record does not reflect it was admitted into evidence.

|iaAfter the testimony, the defendant urged the trial judge to determine whether the date on the search warrant affidavit was timely in relationship to the search. The trial judge stated in part as follows:

THE COURT:
With respect to the date on the warrant, judging from the pens, it appears that the detective might have written the wrong date and it looks like Judge Windhorst corrected it. In any event, it’s clear that the 30th is what it’s supposed to stand out as opposed to, I guess, that’s a 20 underneath or a 25?
THE COURT:
29, rather. It’s a 29, you’re right. I think that’s what the evidence is. So, I think that the search was timely.

Based on the evidence before us, we agree with the trial judge that the search was timely. The arrest warrants were not introduced at the suppression hearing and, unlike the search warrant, the trial judge did not discuss the dates of the arrest warrants. Therefore, the claim that the arrest warrants were facially defective cannot be reviewed on appeal.

Our review of this matter reveals no valid basis upon which to disturb the trial judge’s ruling denying the motions to suppress. Accordingly, this assignment of error is without merit.

In his second assignment of error, the defendant contends that the trial judge erred in denying his mistrial motion based upon an alternate juror’s comments. The State responds that there was no prejudice to the defendant.

While the evidence was published to the jury, Ms. Giaconne, the alternate juror, noticed that the case of one of the audio tapes contained a reference to “Sandra Gale” as the undercover officer, as opposed to Veronica Gordon. Ms. Gia-conne questioned the trial judge as follows:

MS. GIACONNE:
|1sMy question pertains to the first three pieces of evidence that I looked at. The first case was a tape and it indicated that the agent was Sandra Gale instead of Veronica Gordon on the tape.
THE COURT:
Okay. We can’t — I mean, we can’t comment on the evidence.
MS. GIACONNE:
Okay. Well, that’s my observation when I looked at that. So, that is totally, you know to me, it’s incorrect.
THE COURT:
Alright. Wait, don’t tell me — you can’t — don’t comment on — you can’t comment on any of the evidence right now. Okay. You’re looking at the evidence, if you have those thoughts then you can think it all you want. I would encourage you, as I stated before,' to keep an open mind and listen to all the testimony, look at all the evidence. View it altogether because you haven’t heard all the evidence yet. So, once you get it altogether, then kind of start forming your opinion after you' have viewed all of the evidence. Okay. Those are things that if and when you deliberate, you will discuss with your fellow jurors.
MS. GIACONNE:
Another question I have—
THE COURT:
Don’t, don’t — you can ask a question, but try not to — don’t comment on anything, any of the evidence.
MS. GIACONNE:
Well, I just don’t know the process in these particular bags, and it was the chain of custody — and I don’t know whether to expect that or not, and at what point do we find out that information?
THE COURT:
Okay. Alright. I can’t comment on any of that either. I mean I will tell you this, take this case — forget about T.V. and I don’t know where you’re getting the questions you’re asking, but I mean view this evidence — if you think that something is missing, then you know, you can rely on your common sense. But you know, don’t kind of analogize this to a Law and Order episode or something like that. Okay.
MS. GIACONNE:
I may take offense to that.
THE COURT:
I don’t mean to offend you.
MS. GIACONNE:
| uBecause I’m very detailed and that’s something that I noticed and it’s a question that I had.
THE COURT:
And, that’s wonderful. I don’t mean to offend you, I’m just saying, you know, view this case on its own. You can use your common sense, and if you’re detailed, that’s wonderful, that’s great you know, more power to you. But just— never mind, forget it. Alright. Take your time. Whenever y’all are ready, just let me know.
THE COURT:
First of all, let me tell y’all this. If I offended anybody, I apologize. It’s not my intentions. I think — I hope you will see by the time this is over with that my staff and I, we really do bend over backwards to try to make this a positive experience for you, you know so that you’ll want to come back. So, I do appreciate what y’all are doing. Without y’all, the system doesn’t work. Okay. So, I mean that’s the candy and— I mean I really do bend over backwards to try to make you enjoy this. I really do. If I offended you, ma’am, I apologize. I know that — I think at least that you’re ... — the questions you were asking kind of made me — I didn’t know where you got them. I didn’t mean to imply that — all I’m saying is this, I legally cannot comment on the evidence. What the attorneys say is not evidence. The evidence comes from the stuff you just looked at and from that witness stand. I can’t, by law, tell you, oh, well that means XYZ, and if you didn’t find a chain of custody, then you should do ABC. We can’t do that kind of stuff.
MS. GIACONNE:
Well, I don’t know that unless I ask.
THE COURT:
And that’s why I’m telling you. But in other words, when you start bringing up legal terms it makes me nervous because I can’t comment on it. Okay.
MS. GIACONNE:
I accept your apology, and we’ll go on.
THE COURT:
But more importantly, do you understand what I’m telling you. I can’t comment on any of the evidence.
MS. GIACONNE:
That’s fine.
THE COURT:
And the only questions I can answer are I didn’t see Exhibit 2, do you know where it is? You know, I dropped the bottle, what should I do? That’s the kind of — I mean functional questions I can 11Banswer. But as far as that kind of stuff, what weight should I give this? I can’t answer any of that stuff. Okay. This is very important. The state has put on its case and rested. We still have to hear the defendant’s case, if there is one ...

Thereafter, an unrelated discussion was held at the bench with the trial judge, another juror and the attorneys. When the matter was concluded, the defendant moved for a mistrial on the basis of Ms. Giaconne’s comments. The trial judge denied the mistrial motion, stated Ms. Gia-conne’s comments were harmless, and pointed out he had sufficiently admonished the jury. The trial judge also questioned whether the objection was timely, noting that the defendant did not immediately object. The defendant responded that he waited to move for a mistrial outside of the jury’s presence. After the jury returned to the courtroom, the trial judge admonished the jury again.

Under LSA-C.Cr.P. art. 775, “[ujpon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.” LSA-C.Cr.P. art. 770 provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish |1Bthe jury to disregard the remark or comment but shall not declare a mistrial.

LSA-C.Cr.P. art. 771 provides the law regarding admonitions:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Smith, 04-340 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 285. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. Id.

The remarks in question were not within the scope of LSA-C.Cr.P. art. 770 and, therefore, a mistrial was not mandatory. If anything, defendant was only entitled to an admonition under LSA-C.Cr.P. art. 771. A review of the record shows that the trial judge thoroughly admonished the jury to disregard Ms. Giaconne’s remarks and to consider all of the evidence as a whole at the conclusion of the case. Further, as pointed out by the State, Ms. Giaconne’s comments under these circumstances recognized a perceived weakness in the 117State’s case, not the defendant’s. Because there is no showing that defendant was prejudiced by these comments, the trial judge did not abuse his discretion in denying a mistrial, and this assignment of error is without merit.

In his fifth assignment of error, the defendant argues that he did not receive effective assistance of counsel during pretrial proceedings. In this pro se assignment, the defendant claims his trial attorney was ineffective for failing to adequately investigate the case and pursue pre-trial discovery to establish his defense that he was promised immunity from the F.B.I. in exchange for his cooperation with the investigation of Gayle.

An ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under LSA-C.Cr.P. arts. 924-930.8; State v. Taylor at 595.

In the present case, the record is insufficient to address the defendant’s claims of ineffective assistance of counsel. As such, these claims are more appropriately raised in an application for post-conviction relief and cannot be considered on appeal.

Finally, the defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La]App.1s 5 Cir.1990). After conducting our review, we find no errors that require corrective action.

DECREE

For the reasons set forth above, we affirm the defendant’s convictions and sentences.

AFFIRMED.

      . Gayle was not tried with the defendant, and this appeal pertains only to Kenneth Vincent. Gayle is also spelled "Gale” in the record.

      . The jury returned a verdict of attempted distribution of hydrocodone on count two for the charges pertaining to this date.

      . The defendant admitted that he had prior convictions for three counts of manslaughter, served approximately 21 years in jail, and was released in November of 2001.

      . Prior to trial, the defendant filed a pro se motion to suppress evidence, as well as a motion to suppress evidence through his attorney.

      . State’s Exhibit 15 is a taped recording dated October 1, 2002. It indicates the Agent was "Sandra Gayle” and that the targets were “Sandra Gayle and Kenneth Vincent.”


author: THOMAS F. DALEY, Judge.

text:
    Willard A. EASTIN, Jr., Henry Monroe, Donald D. Runge, Louis Anthony Frost, Charles K. Ohlmeyer, III, Robert Martin Braniff, Sr., William C. Owens, Jr., and William K. Carney v. ENTERGY CORPORATION, Richard A. Cuicchi, Albert C. King, Ramon Baulmay, William O. Van As, William Brewer, George Bartlett, Ronnie Beam, and Charles Kelly.
    No. 07-CA-212.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 16, 2007.

      Linda S. Harang, Law Offices of Linda S. Harang, L.L.C., Jefferson, Louisiana, Robert P. Early, Sr., Harvey, Louisiana, Stephen B. Murray, New Orleans, Louisiana, Thomas G. Wilkinson, Gretna, Louisiana, for Plaintiffs/Appellants.
    Harry A. Rosenberg, M. Nan Alessan-dra, Kim M. Boyle, Phelps Dunbar LLP, Roy C. Cheatwood, Amelia W. Koch, Caroline McSherry Dolan, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Kenneth P. Carter, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   THOMAS F. DALEY, Judge.

| oPlaintiffs, former employees of defendant, Entergy, and its subsidiaries who filed suit against defendants alleging age-related employment discrimination, appeal the trial court’s grant of defendants’ Exception of Prescription as to those twenty seven (27) plaintiffs added to the suit in the Seventh, Eighth, and Ninth Supplemental and Amending Petitions. After thorough consideration, we affirm in part, reverse in part, and remand. We find that the Seventh Petition was timely, but that the plaintiffs’ claims newly added in the Eighth and Ninth Supplemental and Amending Petitions are prescribed.

Plaintiffs argue, on appeal, that various procedural barriers exist that preclude the reconsideration of Entergy’s Exception of Prescription by the trial court and this Court. Second, they argue that the trial court erred in finding the various plaintiffs’ claims prescribed, because notice of the decertification of the class action has never been published; thus, under the doctrine of contra non valentum, prescription did not run against plaintiffs because they could not have |4discovered that they had a cause of action. Further, they argue, the duty to publish the notice of the decertifi-cation of the class belonged to Entergy, not plaintiffs’ counsel.

PROCEDURAL HISTORY

This case has an extensive procedural history, the pertinent parts of which are outlined here. Suit was originally filed in November of 1993. The trial court certified the matter as a class action by a judgment signed on August 13, 1997. En-tergy suspensively appealed that judgment, which was reversed by this Court on April 15, 1998, and remanded for further proceedings.

Upon remand, Entergy filed a Motion for Entry of Judgment clarifying the class action status, which was heard on June 14, 1999. At the hearing, the trial court granted the Motion in part and denied it in part, which is reflected by a written judgment entered on October 15, 1999. The court denied defendants’ request that plaintiffs’ suit be dismissed, but granted the Motion in part to require plaintiffs to amend their petition within 30 days of the court’s hearing date to set forth individual claims. Further, all class allegations that had been set forth in the various petitions and amending petitions filed by plaintiffs were stricken, though the judgment recognized that plaintiffs were not precluded from the possibility of filing smaller class actions.

On February 21,1997, prior to the certification hearing in the trial court, plaintiffs had filed their Fifth Supplemental and Amending Petition. On July 14, 1999, plaintiffs filed their Sixth Supplemental and Amending Petition, which removed class allegations, asserted plaintiffs’ individual claims, and added 56 new plaintiffs.

| ¡¡Within one year of the October 15, 1999 judgment, on April 24, 2000, plaintiffs filed a Seventh Supplemental and Amending Petition, adding eight (8) new plaintiffs. In response to this Petition, Entergy filed various declinatory and dilatory Exceptions; the trial court granted the Exceptions of Vagueness and Nonconformity, ordering plaintiffs to “include a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation,” as per LSA-C.C.P. art. 891. Thereafter, Plaintiffs filed an Eighth Superseding Supplemental and Amending Petition on May 31, 2001, as directed by the trial court, and added sixteen (16) new plaintiffs not contained in previous Petitions.

In response to the Eighth Petition, En-tergy filed various declinatory and dilatory Exceptions, and also the peremptory Exceptions of Prescription, No Cause of Action, and No Right of Action. These Exceptions were heard on September 20, 2001. A judgment signed on September 24, 2001, granted the Exception of Prescription as to eleven (11) plaintiffs who were terminated by Entergy more than one year before the filing of the original Petition, but denied it as to those claims asserted in the Petitions filed more than one year after this Court’s opinion of April 15,1998.

On October 23, 2001, plaintiffs filed a Ninth Supplemental and Amending Petition, adding four (4) new plaintiffs. On October 24, 2001, the Entergy defendants filed a Writ Application in this Court regarding the part of the September 24, 2001 trial court judgment that denied the Exception of Prescription. This Writ Application was denied by this Court.

| ¡¡Entergy filed a Writ Application in the Supreme Court, which was granted in part and denied in part, and the case was remanded to the trial court.

On August 16, 2005, Entergy filed another Exception of Prescription. In this Exception, Entergy argued that any plaintiff who filed his/her claim more than one year after this Court’s decertification opinion of April 15, 1998 was barred by prescription. This would include, Entergy argued, all new claims filed in the Sixth, Seventh, Eighth, and Ninth Supplemental and Amending Petitions. Entergy argued that under the class action articles applicable to this suit, LSA-C.C.P. arts. 591-597, prior to the 1997 amendments, prescription as to absent “class” members began to run again as of the date of the Fifth Circuit opinion decertifying the class, or April 15, 1998. In opposition, plaintiffs argued that prescription did not begin to run again until notice of that judgment was given to the class (or the “non” class, potential plaintiffs). It is undisputed that notice of the decertification has not been published by either plaintiffs or defendants.

The matter was heard on April 18, 2006. On April 26, 2006, the trial court overruled the Exception of Prescription as to those plaintiffs named in the Sixth Supplemental and Amending Petition filed on July 14, 1999, pursuant to the trial court’s Order dated June 14, 1999, but sustained it as to any remaining plaintiffs named in the Exception, which were those added by the Seventh (April 24, 2000), Eighth (May 31, 2001), and Ninth Supplemental and Amending Petitions (October 23, 2001). The trial court did not state reasons for judgment.

On May 26, 2006, Entergy filed a Writ Application in this Court, 06-C-391, regarding that portion of the trial court’s judgment denying the Exception as to the |7plaintiffs added by the Sixth Petition. On June 22, 2006, plaintiffs moved for a devolutive appeal (the instant case) regarding that portion of the trial court’s judgment granting the Exception as to the remaining plaintiffs named in the Exception (the plaintiffs added by the Seventh, Eighth, and Ninth Supplemental and Amending Petitions).

On June 28, 2006, this Court denied Entergy’s Writ Application. This Court disagreed with Entergy’s argument that this Court’s opinion of April 15, 1998 recommenced the running of prescription. This Court found that the April 15, 1998 opinion did not render a judgment that would re-commence the running of prescription, a fact acknowledged by Entergy when it filed, in the trial court, the Motion for Entry of Judgment. This Court implicitly found that prescription recommenced as of October 15, 1999, the date of the trial court’s written judgment ordering that class allegations be stricken. From this Court’s writ denial, Entergy filed a Writ Application to the Supreme Court, which was also denied.

ARGUMENTS ON APPEAL

Now before this Court on appeal is the remaining portion of the trial court’s April 26, 2006 judgment, which sustained Enter-gy’s Exception of Prescription as to all remaining plaintiffs named in the Seventh, Eighth, and Ninth Supplemental and Amending Petitions.

Procedurally, plaintiffs argue that the trial court had already considered the identical Exception of Prescription in 2001, and denied it. Accordingly, plaintiffs argue, under the “law of the case” doctrine, the district court committed reversible error by granting the Exception. Further, they argue, Entergy should not have been allowed to reurge the Exception, it being virtually identical to the same one Entergy urged in 2001 and which was denied by the trial court. The issue should Rbe the equivalent of res judicata, they argue. They also argue that under the “law of the case” doctrine, this Court is precluded from reconsidering our previous denial of Entergy’s Writ Application on the trial court’s denial of Entergy’s first Exception of Prescription.

On the merits of this appeal, plaintiffs argue that prescription has not recommenced running because notice of the class decertification was never published. Plaintiffs argue that under pre-1997 LSA-C.C.P. art. 594, absent class members were entitled to “official notice” of the dismissal of the class action, and that due process requires that prescription cannot run against an un-noticed putative class member. Plaintiffs further argue that the duty to publish notice fell to Entergy, the party who benefited from the decertification of the class.

RES JUDICATA AND LAW OF THE CASE

This Court will consider the procedural argument first. This Court finds no procedural bar to the trial court’s consideration of Entergy’s re-urged Exception of Prescription, nor any bar to this Court’s review of the trial court’s ruling. LSA-R.S. 13:4231, Res Judicata, states that a valid and final judgment is conclusive between the same parties. The denial of a peremptory Exception of Prescription is an interlocutory judgment, not a final judgment. Hence, the doctrine of res ju-dicata does not apply. Landry v. Blaise, 02-0822 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, 664. The doctrine of res judi-cata does not bar a party in the same action from re-urging an exception. A peremptory exception may be urged at any time. LSA-C.C.P. art. 928. A party may re-urge a peremptory exception after the denial of the exception. Landry v. Blaise, id. at 664.

Plaintiffs also argue that the doctrine of law of the ease should prohibit this Court from considering a second Exception of Prescription in the same case. The law of the case doctrine embodies the rule that an appellate court will not 19reconsider its own rulings of law in the same case. The law of the case doctrine, as opposed to the statutory provision of res judicata, is discretionary. Landry v. Blaise, id.; see also, Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105, 107-108 (1971), and Bonar v. Bonar, 00-232 (La.App. 5 Cir. 8/29/00), 768 So.2d 194.

Entergy re-urged the Exception of Prescription in 2005, as was Entergy’s right, and the trial court made a new ruling, a partial grant and a partial denial. Plaintiffs argue that the Exception of Prescription denied in the September 24, 2001 judgment asserts the same arguments as the one subject to appeal now. We note, however, that those new plaintiffs added in the Ninth Supplemental and Amending Petition were not addressed by the 2001 Exception of Prescription, as that Petition was not filed until October 23, 2001.

When the trial court denied Entergy’s first Exception of Prescription, this Court denied Entergy’s Writ Application (01 — C— 1224). It does not appear, from the language of that ruling, that this Court considered the merits of the trial court’s ruling, but merely declined to exercise our supervisory jurisdiction. Accordingly, we will not apply the law of the case doctrine to preclude consideration of the trial court’s partial grant of Entergy’s Exception of Prescription.

RE-COMMENCEMENT OF PRESCRIPTION

On appeal, plaintiffs argue that prescription has never recommenced following the class’s decertification because notice of the decertification has never been published to the putative class.

In this Court’s ruling on Writ Application 06-C-391, which reviewed the portion of the appealed judgment that denied En-tergy’s Exception of Prescription, this Court stated:

|inThe defendants seek supervisory review of the trial court’s denial of their Exception of Prescription to the Sixth Supplemental and Amending Petition that added additional plaintiffs. The defendants argue that this Court’s opinion rendered on April 15, 1998, Eastin v. Entergy Corp., 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835, decertified the class and re-commenced the running of prescription. We disagree with that argument.
This Court’s opinion found the class, as certified, was overbroad and reversed the certification on those grounds. This Court remanded the matter to the trial court for reconsideration, acknowledging “the possibility that some plaintiffs may be entitled to bring smaller more limited class action.” Since this Court did not render judgment, the remand did not recommence the running of prescription. Defendants acknowledged that fact when they filed a “Motion to Enter Judgment,” which prompted the June 14, 1999 hearing, wherein the trial judge ordered the plaintiffs to amend the petition to set forth individual claims within 30 days of the hearing. The judgment, which was not signed until October 15, 1999, stated “this Court will strike all class allegations which have been set forth in the various petitions and amending petitions filed by the plaintiffs in this action.” Because the Sixth Supplemental and Amending Petition was filed within the 30 day time period, as provided in the trial court’s June 14, 1999 oral ruling, and before the judgment striking the class allegations was signed, we find the defendants’ argument that this Court’s April 15, 1998 opinion re-commenced the running of prescription unpersuasive. Accordingly, this Writ Application is denied.

Therefore, this Court has ruled that this Court’s April 15, 1998 opinion did not recommence the running of prescription. Plaintiffs argue that in order to recommence the running of prescription as to absent class (non-class) members, publication of the notice of the class decertification was required to be published, under the pre-1997 LSA-C.C.P. art. 594.

The question before this Court is, did prescription recommence running on October 15, 1999, the date of the written judgment on the Motion for Entry of Judgment? Or, as plaintiffs argue, has prescription failed to recommence running at all because notice of the class decertifi-cation was never published? Under current law, LSA-C.C.P. art. 596 requires notice before prescription begins to run again. The old law contained no such affirmative requirement upon decertification, but only upon dismissal.

lnPre-1997 LSA-C.C.P. art. 594 stated, in pertinent part:

A. A class action shall not be dismissed or compromise without the approval of the court exercising jurisdiction over the class action. Notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

Jurisprudence makes clear that this article requires notice to the class of the suit’s dismissal, not the decertification of the matter as a class action. Nab Nat. Resources, L.L.C. v. Caruthers, 30,649 (La. App. 2 Cir. 7/6/98), 714 So.2d 1288; Speaks v. New York Life Ins. Co., 96-2483 (La. App. 4 Cir. 4/30/97), 693 So.2d 340.

It is clear that the putative class was never notified of the class certification. When the trial court issued the judgment certifying the class, Entergy took a sus-pensive appeal. This Court reversed the certification. Plaintiffs argue that they were “forbidden” to publish notice of the class, but cite no authority for this position other than the general articles on the effects of suspensive appeal. Additionally, plaintiffs cite no authority for their position that Entergy was required to publish notice of the decertification.

Under the pre-1997 law, the filing of a class action interrupted prescription as to the claims of all members of the class, and the tolling of the statute of limitations ceased as soon as the district court denied the class certification. Bordelon v. City of Alexandria, 02-48 (La.App. 3 Cir. 7/10/02), 822 So.2d 223. (decided under the pre-1997 amendments to LSA-C.C.P. arts. 591-596), quoting Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1382 (11th Cir.), cert. denied, 525 U.S. 1019, 119 S.Ct. 545, 142 L.Ed.2d 453 (1998). In the instant case, class certification was originally granted, but was overturned (denied) by this Court. We find that prescription recommenced upon the ruling on the Motion for Entry of Judgment on October 15, 1999, since this Court’s opinion decertify-ing the class did not render judgment itself.

112Under the current version of LSA-C.C.P. art. 596, the filing of a class action petition only suspends prescription. The concepts of interruption and suspension are distinguishable. If prescription is interrupted, the time that has run is not counted, and prescription commences to run anew from the last day of interruption, La. Civ.Code art. 3466. By contrast, if prescription is suspended, the period of suspension is not counted toward the accrual of prescription, but the time that has previously run is counted. La. Civ.Code art. 3472. In other words, if the one-year prescriptive period for delictual actions is suspended for any reason, the clock merely stops running during the suspension, and thereafter the obligee has only so much of the prescriptive period as was remaining when the suspension began. Adams v. Stalder, 06-0051 (La.App. 1 Cir. 3/17/06), 934 So.2d 722.

Under the old class action procedural rules (pre-1997) applicable to this case, the running of prescription as to putative class members was interrupted by the filing of the original petition and commenced to run anew on October 15, 1999. Prescription on an employment discrimination action is one year. Eastin v. Entergy Corp., 03-1030 (La.2/6/04), 865 So.2d 49. Based on the jurisprudence, which applies the old class action procedural article, plaintiffs had one year from the date prescription recommenced to file their Petition. Accordingly, the claims of plaintiffs added by the Seventh Supplemental and Amending Petition are timely, because that Petition was filed within one year of the trial court’s October 15, 1999 written judgment. The claims of plaintiffs added by the Eighth and Ninth Supplemental and Amending Petitions, however, are clearly untimely, as they were filed more than one year after this judgment.

Plaintiffs argue that the concept of contra non valentum applies to this case, They argue that because they have not received notice of the decertification order, they were prevented from filing their indi-vidual suits. We find that the Supreme Court has considered the same arguments plaintiffs make here, and squarely 11srejected them in a previous ruling in this suit. See Eastin v. Entergy Corp., 03-1030 (La.2/6/04), 865 So.2d 49. The court clearly stated that

It is by now well established that, in employment discrimination actions, limitations periods normally start to run when the employer’s decision is made and communicated to the affected employee. This rule of law is grounded on a solid foundation: when an employee knows that he has been hurt and also knows that his employer has inflicted the injury, it is fair to begin the countdown toward repose. And the plaintiff need not know all the facts that support his claim in order for countdown to commence.

The court rejected plaintiffs’ arguments that prescription was suspended by application of contra non valentum, because they could not have known of Entergy’s “pattern” of discrimination until they learned of the class action proceedings. As the court stated there:

We recognize a distinct difference between learning of a lawsuit, learning of others being terminated for age-related reasons, and the situation we have here, where the causes of action accrue at the termination and prescription immediately commences yet the aggrieved party does nothing for years to determine if they have a cause of action. It is important to note that the first two situations, learning of another’s law suit or discriminatory practices occasioned upon another, do not give rise to one’s own rights to or the knowledge that one has a cause of action.

Therefore, for the reasons assigned above, we reverse the portion of the trial court’s judgment that granted the Exception of Prescription as to the plaintiffs added to the suit in the Seventh Supplemental and Amending Petition, but affirm it as to the plaintiffs added in the Eighth and Ninth Supplemental and Amending Petitions.

AFFIRMED IN PART, REVERSED IN PART; REMANDED.

      . Underlined for emphasis.

      . Eastin v. Entergy Corp, 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835. This Court found that a lack of commonality among former employees prevented class certification, and the class defined by the district court encompassed an overly broad group of people. Additionally, this Court held that decer-tification of the present class did not foreclose the possibility that some plaintiffs may be entitled to bring a smaller, more limited class action.

      . Those eleven (11) plaintiffs as to whom the Exception of Prescription was granted were given an opportunity to amend to cure the grounds for the Exception. The eleven plaintiffs' claims were supplemented as ordered in the Ninth Supplemental and Amending Petition, after which Entergy reurged the Exception of Prescription, which the trial court then granted. Those eleven plaintiffs appealed the judgment dismissing their claims to this Court, which reversed. 02-1119 (La.App. 5 Cir. 3/11/03), 844 So.2d 144. The Supreme Court reversed this Court, finding the eleven plaintiffs’ claims had prescribed. 03-1030 (La.2/6/04), 865 So.2d 49. That judgment is now final, and not at issue in this appeal.

      . “WRIT DENIED. On the showing made, we see no discretion.” Eastin v. Entergy Corp., 01-C-1224 (La.App. 5 Cir. 1/11/02).

      . Eastin v. Entergy Corp., 02-0443 (La.4/19/02), 813 So.2d 415. The writ disposition stated:
      Granted in part. The case is remanded to the trial court for reconsideration of Enter-gy’s exceptions of improper venue and improper cumulation in light of plaintiffs' Ninth Supplemental and Amending Petition. In all other respects, the application is denied. Plaintiffs’ motion to supplement the record is denied.

      . In an alternative argument, Entergy argued that if the plaintiffs were able to invoke the amended, post 1997 class action articles, though Entergy denied that they applied to this suit, any plaintiff who filed his/her claim more than one year and thirty days after this Court’s "decertification” opinion of April 15, 1998 was prescribed; or, in other words, En-tergy argued that any claim filed after May 15, 1999 was prescribed as a matter of law.

      . Eastin v. Entergy Corp., 06-1896 (La. 10/27/06), 939 So.2d 1288.

      . The language of the ruling is found in footnote 3 of this opinion.


author: MARION F. EDWARDS, Judge.

text:
    Melinda L. DOUCET v. Fred GAYDEN, Sterling Financial Services, Inc., Republic Western Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 07-CA-183.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 16, 2007.

      Sophia G. Pappas, Sylvia J. Hall, Frederick A. Miller & Associates, Metairie, LA, for Defendant/Appellant.
    George B. Recile, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., Metairie, LA for Plaintiff/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

| yDefendant/appellant, State Farm Fire and Casualty Company (“State Farm”), appeals a judgment of the Twenty-Fourth Judicial District Court ordering it to pay plaintiff/appellee, Melinda Doucet (“Dou-cet”), $2,140.96 in attorney’s fees and $1,643.53 as its proportionate share of court costs. The judgment on appeal arises from an earlier trial and jury verdict in favor of Doucet. We reverse.

Doucet filed a Petition for Damages against defendant/appellant, Fred Gayden (“Gayden”), for injuries she received as the result of a three-car accident. Specifically, she alleged that Gayden collided with the rear of a vehicle, which was driven by Paul Catalinotto (“Catalinotto”) and owned by Delta Beverage Group, Inc. The Catalinot-to vehicle, in turn, crashed into the rear of Doucet’s auto, causing injuries to her back, neck, and leg. In addition to Gayden, Doucet named as defendants Gayden’s alleged employer, Sterling Financial Services, Inc. (“Sterling”), and Republic Western Insurance Company (“Republic”), Sterling’s | ^insurer. Doucet also implead-ed State Farm as her underinsured/unin-sured (UM) motorist carrier. Subsequently, Sterling and Republic were dismissed by Doucet as having been incorrectly named, and Crescent Warehouse and Distribution, Inc. (“Crescent”) and Sentry Select Insurance Company (“Sentry”) were substituted as defendants.

State Farm answered the original petition, admitting that, although it had issued a policy of insurance to Doucet, it was not liable in the matter. State Farm alleged that Doucet was negligent; that she failed to mitigate her own damages; that some or all of her injuries were pre-existing; that Republic provided liability limits which would compensate her; and that she had not properly shown that the defendants/appellants were uninsured or under-insured. State Farm then claimed a credit or setoff for all amounts it paid Doucet before trial, as well as a credit and/or setoff for any amounts paid under the medical payments coverage.

The Doucet case was consolidated for trial with a separate action filed by Catali-notto involving the same accident. State Farm was not a party to the Catalinotto suit. Subsequently, State Farm filed a cross-claim against Gayden, Sentry, and Crescent, averring that State Farm was subrogated to Doucet’s rights to sums paid under its medical payments coverage.

Prior to trial, counsel for Doucet and for Crescent stipulated to a “high/low” agreement, by which, depending on the jury verdict, Doucet would receive no less than $50,000, plus interest and court costs, and no more than $150,000, plus costs and interest. It was agreed that no appeal on that judgment would be taken. Based on the high/low agreement, and because State Farm had a $10,000 limitation of liability on its UM policy with Doucet, State Farm orally requested a Motion to Dismiss the UM claims against it with prejudice. Dou-cet agreed that, in light of the agreement, she no longer had a UM claim against State Farm. State Farm | ¿continued to pursue its cross-claim for subrogation. In connection with the cross-claim, the parties stipulated to the State Farm policy and to the $5,000 medical payment made under the policy. Doucet also stipulated that whatever award was made in light of the high/low agreement, that award would be subject to State Farm’s claim. However, Doucet reserved her right to claim a portion of her attorney’s fees and costs out of any subrogation recovery by State Farm. Doucet agreed on the record that it was unnecessary for State Farm to participate further in the trial and that the absence of the insurer’s counsel would not be used as a ground for an argument of failure to defend.

Following trial, the jury rendered its verdict finding that Gayden was negligent. The verdict was reduced to judgment, granting Doucet damages totaling $60,000 subject to reduction of $5000 on the cross-claim, plus interest and costs. State Farm was awarded $5000, plus interest and court costs on the cross-claim, and was dismissed as the UM carrier.

Subsequently, Doucet filed a Rule to Apportion Cost of Recovery From Third Party Tortfeasor, asserting that State Farm should be required to pay its proportionate share of the litigation costs and attorney’s fees incurred in the pursuit of the third-party recovery. Following a hearing on the rule, the trial court rendered judgment in favor of Doucet, ordering State Farm to pay $3,784.49 out of its total award on the cross-claim. It is from this judgment that State Farm has appealed.

State Farm argues that, because it was adverse to Doucet as the UM carrier, hired its own attorney, and filed and pursued its own cross-claim for subrogation, it |Bis not liable for a share of Doucet’s attorney’s fees and costs for her own claim against third parties, relying on the case of Barreca v. Cobb.

The insurance policy in this case clearly states that State Farm is subrogated to the extent of the medical payments made to its insured. In Barreca, the Louisiana Supreme Court held that, under the principles of subrogation, the insurer and the insured are co-owners of the right to recover the medical expenses paid by the insurer. As co-owners, both the insured and the insurer are responsible for the corresponding litigation expenses.

However, we hold that, in subrogation cases, an important prerequisite to the assessment of attorney fees is timely notice to the insurer. Timely notice is necessary to allow the insurer to exercise its right to join the action, or bring its own action, and be represented by legal counsel of its own choosing if it so elects. Assessment of attorney fees is justified only when the insurer chooses to rely on the efforts of plaintiffs counsel.

The Barreca court found that an insurer who has timely notice of the insured’s claim, but fails to bring its own action or fails to intervene in the plaintiffs action will be assessed a proportionate share of the recovery costs incurred by the insured, including reasonable attorney’s fees. In other eases, proportionate recovery has been denied when the insured has failed to notify its insurer of a suit so as to permit it to join in the action, or to bring its own, or when a UM carrier actively participated in litigation to establish underlying third-party liability.

In the present matter, State Farm clearly received notice via the suit by Doucet and exercised its legal rights by bringing its own action, filing a cross-claim. State Farm was represented by its own legal counsel, who actively | ¿participated in the case up to the day of trial. We note Doucet’s acknowledgement that she no longer had a UM claim; that she agreed that counsel for State Farm need not remain for the trial in chief and that the issues involved in the cross-claim would be resolved at a later date; and notably, that State Farm’s absence from trial would not constitute an argument regarding the proportioning of attorney’s fees on the cross-claim. In this situation, we also find the effect of the high/low agreement between Doucet and Crescent to be significant.

Doucet relies on Louisiana Insurance Directive 175, issued by the Office of the Commissioner of Insurance on January 8, 2003, which states in part:

While insurers are free to include whatever provisions they choose in their policies, the provisions must be consistent with the laws and public policy of Louisiana. It has long been the public policy of this state, as expressed in Louisiana jurisprudence, that subrogation provisions in insurance contracts cannot harm the insured. This same rule of public policy applies to reimbursement provisions in insurance contracts. Further, an insurer invoking a subrogation or reimbursement provision is required by the public policy of this state to contribute to the attorney’s fees incurred in obtaining a recovery from the third party.

Although the above directive was referred to in oral argument, it was not otherwise introduced into the record of this case. Further, by its own terms, it was created to streamline and expedite the policy forms review process, and relates to administrative sanctions against a noncomplying insurer by the Commission. It does not purport to change the existing law. There is nothing in the record to suggest that the State Farm policy in question has been challenged or invalidated as being non-compliant.

In its reasons, the trial judge does not state the grounds for his finding. We have reviewed the policy in question and find no contractual basis for the judgment. In the absence of any jurisprudential or statutory basis for the 17imposition of attorney’s fees and costs in this case, we hold that the court was manifestly erroneous in granting such fees and costs.

For the foregoing reasons, the judgment is reversed. Appellee is assessed all costs of this appeal.

REVERSED.

      . 95-1651 (La.2/28/96), 668 So.2d 1129.

      . Barreca, supra at 1132 (emphasis supplied).

      . See, Masters v. State Farm, 36,735 (La.App. 2 Cir. 3/5/03), 840 So.2d 665, writ denied, 2003-1219 (La.6/27/03), 847 So.2d 1276.

      . Murray v. German Mut. Ins. Co., 37-697 (La.App. 2 Cir. 9/24/03), 856 So.2d 81, writ denied, 2003-3168 (La.2/13/04), 867 So.2d 698.