author: SULLIVAN, Judge.

text:
    Howard McCLURE v. CITY OF PINEVILLE.
    No. 06-279.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Daniel E. Broussard, Jr., Broussard, Bolton, Halcomb & Vizzier, Alexandria, LA, for PlaintiffAppellee, Mary McClure.
    Thomas J. Solari, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, City of Pineville.
    Gregory E. Bodin, Russell L. Mosely, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for Defendant/Appellant, Louisiana Workers’ Compensation Corporation.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

| t This is a workers’ compensation claim under the Heart and Lung Act, La.R.S. 33:2581. The employer and its workers’ compensation carrier appeal the judgment rendered in favor of the claimant, which awarded her death benefits, funeral expenses, medical expenses, penalties, and attorney fees associated with the death of her husband, a retired fireman. For the following reasons, we reverse in part, amend, and affirm the judgment as amended.

Facts

Howard McClure was employed by the Pineville Fire Department (Pineville) for more than forty years. He retired in May 2000. In February 2003, he was diagnosed with lung cancer; he died as a result of this cancer in July 2003. His widow, Mary McClure, sought death benefits pursuant to the provisions of the Heart and Lung Act, La.R.S. 33:2581.

Pineville had workers’ compensation coverage with Louisiana Municipal Risk Management Association (LMRMA) which was administered through Risk Management, Inc. (hereinafter referred to collectively as RMI) for the period January 1, 1987 through December 31, 1998. Louisiana Workers’ Compensation Corporation (LWCC) provided Pineville workers’ compensation coverage for the period January 1, 1999 through December 31, 2001. Beginning January 1, 2002, Pineville was self-insured; RMI was the administrator of its claims. On January 1, 2003, Pineville had coverage again with LMRMA/RMI.

After Mrs. McClure sought benefits, RMI filed a disputed claim, seeking a declaratory judgment that it was not responsible for the benefits sought. | gMrs. McClure filed a Reconventional Demand seeking death benefits from RMI and LWCC. She then named Pineville as a defendant.

The WCJ tried Mrs. McClure’s claims against Pineville and LWCC and took the matter under advisement. Thereafter, the WCJ issued oral reasons granting judgment in favor of Mrs. McClure and against LWCC and Pineville as follows:

Death benefits at the rate of $226.09 per week from July 22, 2003, together with interest on each payment from February 24, 2004 or its due date until paid. Medical benefits incurred in connection with Mr. McClure’s diagnosis and treatment of his lung cancer in the amount of $120,112.52 together with legal interest thereon from February 24, 2004 until paid;
Funeral expenses in the amount of $5,000.00 together with legal interest thereon from February 24, 2004 until paid;
Pineville and LWCC were each assessed with penalties for:
Failure to pay indemnity benefits $2,000.00
Failure to pay funeral expenses $2,000.00
Failure to pay medical expenses $2,000.00

Pineville and LWCC were also each assessed with attorney fees in the amount of $5,000.00. The WCJ denied Mrs. McClure’s claim for temporary total disability benefits from February 1, 2003 until July 22, 2003.

LWCC and Pineville appealed the judgment of the WCJ; Mrs. McClure answered the appeal, seeking additional attorney fees for work performed on appeal.

Assignments of Error
LWCC assigns five errors:
|31. The WCJ erred in refusing to allow evidence of Mr. McClure’s “last injurious” exposure.
2. The WCJ erred in ruling that LWCC was responsible for the payment of death benefits, medical costs, and funeral expenses because there was no conclusive evidence presented at trial which proved that Mr. McClure’s exposure during the period it provided workers’ compensation coverage to the Pineville Fire Department caused his lung cancer.
3. The WCJ erred in concluding that LWCC failed to rebut the presumption contained in the Heart and Lung Act, La.R.S. 33:2581.
4. The WCJ erred in assessing LWCC with death benefits.
5. The WCJ erred in assessing LWCC with penalties and attorney fees for its refusal to pay death benefits, medical expenses, and funeral expenses.
Pineville also assigns five errors:
1. The WCJ erred in assessing Pine-ville with death benefits because the claimant failed to produce evidence that she was receiving any pecuniary support at the time of her husband’s death.
2. Alternatively, the WCJ erred in assessing Pineville with death benefits where the decedent was not receiving any wages at the time of his death.
3. The WCJ erred in assessing penalties and fees against Pineville for resisting payments based on its litigation of an unsettled question of law.
4. The WCJ erred in assessing penalties against both Pineville and LWCC, in contravention of limitations on the imposition of and the amount of penalties under La.R.S. 23:1201(F).
5. The WCJ erred in increasing the total award of attorney fees by $2,500 when a clarification on the award was sought.

14Standard of Review

Factual findings of the WCJ should not be set aside unless they are manifestly erroneous or are clearly wrong. However, if the WCJ committed a reversible error of law or manifest error of fact, this court must ascertain the facts de novo from the record and render a judgment on the merits. Bonnette v. Conoco, Inc., 01-2767 (La.1/28/03), 837 So.2d 1219.

Discussion

Heart and Lung Act

As previously stated, Mrs. McClure’s claims are predicated on the Heart and Lung Act, La.R.S. 33:2581, which provides:

Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

Last Injurious Exposure

LWCC stipulated that it provided Pineville workers’ compensation coverage from January 1, 1999 through December 31, 2001. Its first assignment of error is based upon the following provision of the policy LWCC issued to Pineville:

A. How This Insurance Applies | sThis workers compensation insurance applies to bodily injury by accident or bodily injury by disease. Bodily injury includes resulting death.
2. Bodily injury disease must be caused or aggravated by the conditions of your employment. The employee’s last day of last exposure to the conditions causing or aggravating such bodily injury by disease must occur during the policy period.

LWCC sought to introduce evidence of Mr. McClure’s involvement in fighting fires during its policy period. It cites the case of Beason v. Red Ball Oxygen Co., Inc., 29,894 (La.App. 2 Cir. 10/29/97), 702 So.2d 26, as support for its claim that Mr. McClure’s last injurious exposure to conditions which could have caused or contributed to his lung cancer determines whether its policy provides coverage for Mrs. McClure’s claim. In Beason, the claimant sought benefits for his occupational disease. He sued his employer and an insurer that provided workers’ compensation coverage for a period of time during his employment. He claimed that each insurer which provided workers’ compensation coverage during the time of his “injurious exposure” was solidarily liable for his claim. The defendant insurer’s policy contained the same “last exposure” limitation LWCC’s policy contains. The court observed that the insurance contract “constitutes the law between the parties and is enforced as written if the policy terms express the intent of the parties,” and held that the insurer sued was not liable for the claim, as the claimant’s last performance of repetitive arm, hand, and wrist movements, which contributed to his occupational disease, did not occur during the insurer’s policy period. Id. at 28.

The occupational disease provision of the Workers’ Compensation Act, La.R.S. 23:1031.1, gave rise to the last injurious exposure rule. See Gales v. Gold Bond Bldg. Prod., 493 So.2d 611 (La.1986). The occupational disease provision entitles | r,employees disabled by occupational diseases to compensation as if they were injured in accidents in -the course and scope of their employment. La.R.S. 23:1031.1(A). In Gales, the supreme court adopted the last injurious exposure rule, as opposed to apportioning fault among all employers and their insurers whose employment contributed to a workers’ compensation claimant’s occupational disease, explaining:

The last injurious exposure rule avoids most of the problems of the apportionment [among employers] solution and because of this promotes efficient administration, speedy payment of claims, and, in most instances, provides the highest level of benefits for the claimant.... [W]e conclude that, as between the successive employers themselves, the solution of assigning liability according to the last injurious exposure most effectively furthers the principles and goals of workers’ compensation laws.

Id. at 617 (citation omitted).

Counsel for Mrs. McClure objected to the introduction of last injurious exposure evidence. He argued that the Heart and Lung Act does not require a fireman who has been employed for more than five years to prove exposure to establish his claim for compensation. Therefore, exposure is not a coverage issue, and the insurer providing coverage on the fireman’s last day of work provides coverage for the claim. Counsel further argued that the purpose of the Heart and Lung Act would not be served if a claimant’s receipt of benefits was delayed while insurers and the employer fought over an issue which is not an issue for the claimant.

The WCJ agreed and refused to allow LWCC to introduce such evidence. The WCJ concluded that the language of the Heart and Lung Act rendered such evidence irrelevant and that the only relevant issue was Mr. McClure’s being a fireman for more than five years. The WCJ reasoned that, because the Heart and Lung Act does not require such a fireman to establish any type of injurious exposure, LWCC knew or should have known when it issued its policies to Pineville that it would be ^responsible for any workers’ compensation claims made under the Heart and Lung Act by firemen who retired during its coverage period. The WCJ explained:

When the insurer sold the policy and accepted the premium in payment for the policy, they were well aware of the fact that any and all fire fighters for the City [ ] may be diagnosed with a heart problem or a lung problem and that the statutory presumption would make them responsible for that type of coverage .... I’m not convinced that we’re even dealing with a last injurious exposure case whatsoever under the Heart and Lung Statute, because it requires no proof of that for there to be coverage.

The Heart and Lung Act confers on firemen “all rights and benefits” afforded a claimant suffering from an occupational disease; however, as noted by the WCJ, it does not track the language of the occupational disease provision. La.R.S. 23:1031.1. Section B of this provision requires that occupational diseases be “due to causes and conditions characteristic of and peculiar to the ... employment in which the employee is exposed to such disease.” The Heart and Lung Act does not contain such a requirement. Instead, it classifies heart and lung ailments as being “connected with employment.” La. R.S. 33:2581. This distinction was noted in Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4 Cir.1975), writ denied, 329 So.2d 760 (La.1976), and led the court to conclude that the jurisprudence interpreting La.R.S. 23:1031.1 is not directly applicable to the Heart and Lung Act.

The Heart and Lung Act significantly simplifies a fireman’s burden of proof in an occupational disease claim, especially a fireman who has been employed for more than five years. Requiring firemen to comply with the last injurious exposure rule imposes a burden of proof that the Heart and Lung Act does not, and imposition of such a requirement would hinder its principles and goals. For these reasons, we find no error with the WCJ’s interpretation of the Heart and Lung Act, as it pertains to firemen who have been employed by the same employer for more than five years.

|RWe do not believe this holding is in derogation of Beason, which held that policy provisions must be upheld if they “express the intent of the parties.” The last exposure provision of LWCC’s policy tracks the language of La.R.S. 23:1031.1 and jurisprudence interpreting it. The Heart and Lung Act does not track the language of the La.R.S. 23:1031.1 and, consequently, jurisprudence interpreting it is not necessarily pertinent to application of the Heart and Lung Act. See Vincent, 326 So.2d 401. Counsel for LWCC stated at trial that LWCC’s policy was a statutory policy. We take this to mean that the policy is intended to provide an employer with workers’ compensation coverage which satisfies the statutory requirements of the Workers’ Compensation Act. Certainly, Pineville intended to purchase a policy which would satisfy all workers’ compensation claims asserted against it. The Heart and Lung Act does not require evidence of injurious exposure; therefore, it is reasonable to conclude that Pineville did not intend to purchase a policy which required such evidence. It is also reasonable to conclude that if LWCC intended its statutory policy to satisfy Heart and Lung Act claims asserted against Pineville, it did not intend its policy to require such evidence.

Causation

LWCC next argues that the WCJ erred in holding it responsible for benefits sought by Mrs. McClure because there was “no conclusive evidence” establishing that Mr. McClure’s exposure to conditions during his employment “caused” his lung cancer. It also urges that the WCJ erred in finding that it did not rebut the presumption provided in La.R.S. 33:2581.

The Heart and Lung Act provides that once a fireman has established that the presumption is applicable, i.e., lung disease manifested after he had been employed |9for five years, his employer must prove that the disease did not develop during his employment to relieve itself from the obligation of paying workers’ compensation benefits. La.R.S. 33:2581. It does not require “conclusive evidence” that exposure during his employment caused his heart or lung condition as argued by LWCC. To successfully defend a claim under the Heart and Lung Act, the employer must produce affirmative evidence to establish that the fireman’s heart or lung condition did not develop during his employment. Abate v. City of Abbe-ville, 02-297 (La.App. 3 Cir. 10/2/02), 827 So.2d 604, writs denied, 02-2648 (La.1/31/03), 836 So.2d 67, 02-2718 (La.1/10/03), 834 So.2d 440. This is an almost impossible burden because the employer must prove a negative, i.e., the fireman’s heart or lung disease or infirmity “could not have resulted from his service as a firefighter.” Rothell v. City of Shreveport, 626 So.2d 763, 766 (La.App. 2 Cir.1993), writ denied, 93-3191 (La.2/11/94), 634 So.2d 379.

LWCC presented the testimony of Dr. Gerald Militello to rebut the presumption. Dr. Militello opined that Mr. McClure’s history of smoking cigarettes was more likely to have caused his lung cancer than his exposure to fire and smoke as a firefighter. He testified that Mr. McClure would have had to have fought fires on a daily basis for it to have had “a significant role with the disease process.” While he believed cigarette smoking was “95% of the cause” of Mr. McClure’s lung cancer, Dr. Militello could not rule out Mr. McClure’s exposure to smoke as a fireman as playing a role in his cancer’s development, and he testified that Mr. McClure’s work as a firefighter “may have contributed some, but I think it played a very small role” in the development of his lung cancer. Mr. McClure’s treating physician, Dr. Hafez | KAl-Halawani, also testified that he could not rule out Mr. McClure’s exposure to smoke in his employment as a contributing factor in the development of cancer.

Medical testimony to the effect that a firefighter’s employment probably did not contribute to a fireman’s lung disease, which is tempered by an acknowledgment that his employment cannot be ruled out as a contributing factor, is not sufficient to rebut the Heart and Lung Act’s presumption. Rothell, 626 So.2d 763; City of Jennings v. Deshotel, 99-1232 (La.App. 3 Cir. 2/2/00), 758 So.2d 269, writ denied, 00-663 (La.4/20/00), 760 So.2d 1157; and McCoy v. City of Shreveport Fire Dep’t, 26,181 (La. App. 2 Cir. 1/25/95), 649 So.2d 103. LWCC did not rebut the presumption of the Heart and Lung Act.

Death Benefits

LWCC and Pineville contend that the WCJ erred in ordering the payment of death benefits to Mrs. McClure, citing Arledge v. Dolese Concrete Co., 00-363 (La. App. 1 Cir. 6/6/01), 807 So.2d 876, writ denied, 01-2357 (La.11/16/01), 802 So.2d 617, where the court held that survivors of retirees were not entitled to workers’ compensation death benefits. The claimant in Arledge was found not to be “actually and wholly dependent” on her husband’s “earnings for support at the time of [his] accident and death” as required by La.R.S. 23:1231 because the Arledges were receiving social security retirement benefits, not earnings from Mr. Arledge’s employer, at the time of his death. Therefore, the court concluded that she was not entitled to death benefits.

This court declined to follow Arledge in Johnson v. City of Lake Charles, 04-455 (La.App. 3 Cir. 9/29/04), 883 So.2d 521, because the holding results in death Inbenefits being payable only when the employee is killed in the course of his employment. The court explained:

To limit death benefit recovery to only those cases in which an employee is actually killed in a work-related accident would be to ignore the clear language of La.R.S. 23:1031.1(A), which grants a dependent employee who dies from an occupational disease the same recovery rights “as if [the] employee received personal injury by accident arising out of and in the course of his employment.”

Id. at p. 525.

The court in Johnson further observed that survivors of firemen are entitled to benefits under the Heart and Lung Act “regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity,” and that the decision in Arledge would result in many such survivors being left without a remedy simply because of how quickly their spouse’s disease progressed and not because it was not employment-related.

Pineville urges us to reject this court’s determination in Johnson. It argues that pertinent language in La.R.S. 23:1231 and La.R.S. 23:1251 establishes this court’s error in Johnson. Section 1231 provides in part that death benefits are due to a legal dependent who is “actually and wholly dependent upon his earnings for support at the time of the accident and death.” Section 1251 provides that a surviving spouse with whom the deceased employee is living at the time of accident or death is “conclusively presumed to be wholly and actually dependent upon the deceased employee.” Pineville argues that this presumption does not relieve a surviving spouse who was living with the deceased employee at the time of his death of proving that she was “actually and wholly dependent upon his earnings for support.”

The presumption of Section 1251 appears to fall short of satisfying the requirements of Section 1231, but La.R.S. 23:1255 clarifies that it does not. Section | igl255 provides: “No compensation shall be payable under this Part to a surviving spouse unless he or she was living with the deceased spouse at the time of the injury or death, or was then actually dependent upon the deceased spouse for support.” The jurisprudence interpreting Section 1255 makes it clear that a spouse living with the deceased at the time of death is conclusively presumed to be “wholly and actually dependent on the deceased for support.” See Haynes v. Loffland Bros. Co., 215 La. 280, 291, 40 So.2d 243, 247 (1949), where the court observed: “the courts have consistently held that both relationship and contribution to support at the time of the injury and death must be proved in all cases where dependency is not conclusively presumed.” (Emphasis added.) Therefore, where dependency is conclusively presumed, relationship and contribution to support need not be proved.

The parties stipulated that Mrs. McClure was Mr. McClure’s surviving spouse but not that she lived with him at the time of his death. Documentary evidence established that her residence was at the same address as Mr. McClure’s residence, and we find that Mrs. McClure proved that she lived with Mr. McClure at the time of his death and that the conclusive presumption of La.R.S. 23:1251 applies to her. The WCJ did not err in awarding Mrs. McClure death benefits.

Penalties and Attorney Fees

LWCC and Pineville argue that the WCJ erred in casting them with penalties and attorney fees. LWCC complains that the WCJ wrongfully assessed penalties and attorney fees because the medical evidence did not establish that Mr. McClure’s exposure to any condition of his employment during the period of its policy contributed to his cancer. For the reasons previously discussed herein under “Causation," we find no merit to this contention. The jurisprudence interpreting the 113Heart and Lung Act established long ago that the evidence LWCC relied on to rebut the presumption herein was insufficient. Its failure to pay Mrs. McClure’s benefits was arbitrary and capricious, rendering it liable for penalties and attorney fees. La.R.S. 28:1201.

Pineville urges that the WCJ erred in assessing penalties and attorneys fees when an unsettled question of law is at issue. We do not agree. The decision in Johnson is the latest pronouncement on this issue by this court. And, as previously discussed, there is a long line of jurisprudence interpreting La.R.S. 23:1251 and 23:1255 which evidences the correctness of our decision in Johnson. This issue of law is not unsettled.

Pineville also contends that the WCJ erred in assessing separate penalties and attorney fees against it and LWCC. The WCJ found that because both the employer and its insurer were obligated, but failed to satisfy the obligations contained in the Heart and Lung Act, they were each liable for separate penalties and attorney fees.

La.R.S. 23:1201(F) provides for the assessment of penalties and attorney fees “against either the employer or the insurer, depending upon fault.” The disjunctive “or” limits the assessment of penalties and attorney fees against the employer or the insurer, not both. La.R.S. 1:9. Accordingly, we find the WCJ erred in awarding penalties and attorney fees against LWCC and Pineville and reverse that portion of the judgment which assesses penalties and attorney fees against Pineville.

Increased Award of Attorney Fees

The WCJ initially awarded $7,500.00 in attorney fees. When a clarification was requested regarding the award, the WCJ increased the initial award of $7,500.00 in attorney fees to $5,000.00 against Pineville and $5,000.00 against LWCC. luPineville assigns this as error. Our reversal of the assessment of attorney fees against Pine-ville renders this argument moot.

Attorney Fees for Appeal

Mrs. McClure seeks an award for attorney fees for work performed on appeal. She is entitled to an increase in attorney fees in light of the additional time required of her counsel in defending this appeal. Frith v. Riverwood, Inc., 04-1086 (La.1/19/05), 892 So.2d 7. We award $2,500.00 in attorney fees to Mrs. McClure for work performed by her attorney on appeal.

Disposition

The assessment of penalties and attorney fees against Pineville is reversed. The judgment is amended to award Mrs. McClure $2,500.00 in attorney fees for work performed on this appeal. The judgment is affirmed in all other respects. All costs of this appeal are assessed to LWCC.

REVERSED IN PART; AFFIRMED IN PART AS AMENDED.

      . RMI filed a motion for summary judgment seeking to have all claims against it dismissed; the WCJ granted the motion. Appeals pertaining to that judgment are the subject of a separate opinion. See McClure v. City of Pineville, 05-1460 (La.App. 3 Cir. 12/06/06), 944 So.2d 805, 2006 WL 3498297.

      . LWCC proffered a copy of its policy at trial and indicated that it would provide a copy of the policy to the court for inclusion in the record; however, the policy is not contained in the exhibits compiled by the Office of Workers’ Compensation, and the Exhibit List states "Do Not Have This Exhibit” for the exhibit designation LWCC assigned to its policy. Therefore, it is unknown what subpart 1 of this provision indicates.


source: Caselaw Access Project

license: Public Domain

text:
    Howard McCLURE v. CITY OF PINEVILLE.
    No. 05-1460.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Daniel E. Broussard, Jr., Broussard, Bolton, Halcomb & Vizzier, Alexandria, Louisiana, for PlaintiffAppellee, Mary McClure.
    Thomas J. Solari, Attorney at Law, Lake Charles, Louisiana, for Defendant/Appellant, City of Pineville.
    Randall B. Reiser, Reiser Law Firm, Alexandria, Louisiana, for Defendant/Ap-pellee, Risk Management, Inc.
    Gregory E. Bodin, Russell L. Mosely, Taylor, Porter, Brooks & Phillips, Baton Rouge, Louisiana, for Defendant/Appellant, Louisiana Workers’ Compensation Corporation.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

11This is a workers’ compensation claim under the Heart and Lung Act, La.R.S. 33:2581. The claimant’s employer appeals the grant of summary judgment in favor of an insurer which provided workers’ compensation coverage for a period of time during the claimant’s employment. Another workers’ compensation insurer appeals the denial of its motion for new trial of the motion for summary judgment, and the insurer granted summary judgment seeks to have the other insurer’s answer to appeal dismissed. For the following reasons, we dismiss the appeal of the denial of the motion for new trial and dismiss that insurer’s answer to appeal; the summary judgment is affirmed.

Facts

Howard McClure was employed by the City of Pineville (Pineville) fire department for more than forty years. He retired in May 2000. In February 2003, he was diagnosed with lung cancer; he died as a result of the cancer in July 2003. His widow, Mary McClure, seeks death benefits pursuant to the provisions of the Heart and Lung Act, La.R.S. 33:2581.

Pineville had workers’ compensation insurance with Louisiana Municipal Risk Management Association (LMRMA) which was administered through Risk Management, Inc. (hereinafter referred to collectively as RMI) for the period January 1, 1987 through December 31, 1998. Louisiana Workers’ Compensation Corporation (LWCC) provided Pineville workers’ compensation coverage for the period January 1, 1999 through December 31, 2000. Beginning January 1, 2002, | ¿Pineville was self-insured; RMI was the administrator of its claims. On January 1, 2003, Pine-ville had coverage again with LMRMA/ RMI.

After Mrs. McClure sought benefits, RMI filed a disputed claim, seeking a declaratory judgment that it was not responsible for the payment of the benefits she sought. Mrs. McClure filed a Reconven-tional Demand seeking death benefits from RMI and LWCC. She also sued Pineville.

RMI filed a motion for summary judgment, asserting that all claims against it should be dismissed; the motion was granted. LWCC filed a motion for new trial with regard to the grant of summary judgment in favor of RMI. Pineville filed a motion for new trial and a third party demand against RMI. RMI filed an exception of no cause of action as to Pineville’s third party demand. The motions for new trial were denied; the exception was granted. Pineville devolutively appealed the grant of summary judgment in favor of RMI, the grant of RMI’s exception of no cause of action, and the denial of its motion for a new trial.

LWCC filed a devolutive appeal of the judgment “dated August 24, 2005,” the “Judgment denying its Motion for New Trial.” LWCC also filed an “Answer to Appeal” in response to the appeal filed by Pineville, seeking reversal of the judgment which granted summary judgment in favor of RMI “to the extent that [it] seeks to declare that coverage ... rests with [LWCC].” RMI filed a motion to dismiss LWCC’s answer. The motion to dismiss was referred to the merits of this appeal. We address the procedural correctness of LWCC’s appeal of the denial of its motion for new trial and its answer to Pineville’s appeal before addressing the merits of Pineville’s appeal.

| LWCC’s Appeal of the Denial of Its Motion for New Trial

LWCC appealed the WCJ’s denial of its motion for new trial but did not appeal the judgment granting RMI’s motion for summary judgment. A judgment denying a motion for new trial is an interlocutory order, not a final appealable judgment. Shavers v. Shavers, 350 So.2d 912 (La.App. 3 Cir.1977). Interlocutory judgments are not appealable, unless expressly provided by law. La.Code Civ.P. art. 2083(C). However, in Fuqua v. Gulf Insurance Co., 525 So.2d 190 (La.App. 3 Cir.1988), writ denied, 546 So.2d 1216 (La.1989), this court held that where the appellant’s argument on appeal indicated that he intended to appeal the judgment on the merits, not the judgment denying a motion for new trial, the inadvertence of misstating the judgment being appealed did not necessitate dismissal of the appellant’s appeal, and “the appeal should be maintained as being taken from the judgment on the merits.” Id. at 191-92, (quoting Dural v. City of Morgan City, 449 So.2d 1047, 1048 (La.App. 1 Cir.1984)).

LWCC specified the date of the judgment being appealed, August 24, 2005, and the title of the judgment being appealed, “the Judgment denying the Motion for New Trial.” Furthermore, LWCC has not asserted any argument with regard to inadvertence in its appeal of the judgment denying the motion for new trial. LWCC’s actions do not indicate that it simply misstated which judgment it was appealing, and we dismiss ex proprio motu its appeal of the August 24, 2005 judgment denying its motion for new trial. See Shavers, 350 So.2d 912.

LWCC’s Answer to Pineville’s Appeal

RMI filed a motion to dismiss LWCC’s answer to Pinveville’s appeal, asserting that LWCC did not have the right to file an answer to Pineville’s appeal because it is not an appellee with respect to Pine-ville’s appeal of the judgment which granted Rsummary judgment in favor of RMI. LWCC has not responded to the motion to dismiss. Finding merit in RMI’s motion, we grant the motion and dismiss LWCC’s answer to Pineville’s appeal.

Louisiana Code of Civil Procedure article 2087 (emphasis added) provides in part:

B. When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in Paragraph A of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.

La.Code Civ.P. art. 2133 (emphasis added) provides in pertinent part:

A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant.... The answer filed by the appellee shall be equivalent to an appeal on his part/rom any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. ...

The relationship between LWCC and Pineville determines whether LWCC is an appellee. La.Code Civ.P. art. 2133(A). In Henley v. Sterling Drugs, Inc., 470 So.2d 647 (La.App. 1 Cir.1985), the court held that a party whose interest is aligned with that of the appellant is not an appellee. Referencing the comments to Article 2087, the court noted that pursuant to Article 2133 an appellee can respond to an appellant. In Henley, the plaintiff sued for damages caused by the defendant’s defective product. His insurer intervened to collect monies it had paid him. Judgment was rendered in favor of the defendant. The plaintiff appealed; the insurer did not appeal but answered the plaintiffs appeal. The court explained that the plaintiffiappellant was not an appellant in relation to the insurer because the insurer’s interest in the litigation was not adverse to reversal of the judgment. The same is true Rhere: LWCC’s interest is not adverse to Pineville’s interest — they both seek reversal of the summary judgment.

In Borne v. Mike Persia Chevrolet Co., Inc., 396 So.2d 326 (La.App. 4 Cir.), writ denied, 401 So.2d 976 (La.1981), the court explained that an appellee is one against whom an appeal is taken and, therefore, must have an interest that is adverse to reversal of the judgment. See La.Code Civ.P. art. 2133. This explanation makes it clear that LWCC is not an appellee, as judgment was not rendered against it, no appeal was taken against it, and its interest is served by, as opposed to being adverse to, having the judgment reversed. The motion to strike is granted.

Motion for Summary Judgment

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). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2). .

The mover bears the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

| (¡Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

In its motion for summary judgment, RMI asserted that there was no genuine issue of material fact that it did not have coverage in effect at the time of Mr. McClure’s retirement in May, 2000 and, therefore, it was not obligated for Mrs. McClure’s claim for death benefits. RMI claimed that the carrier who had coverage in effect at the time of Mr. McClure’s retirement was obligated for payment of the death benefits sought.

Mrs. McClure’s claims are based on the Heart and Lung Act, La.R.S. 33:2581, which provides:

Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

|7RMI supported its motion with an affidavit by an RMI employee who attested that there was no coverage in effect between LMRMA and Pineville at the time Mr. McClure retired, that there was not coverage when Mr. McClure died, and that “upon information and belief’ LWCC had coverage in effect in 1999, 2000, and 2001. RMI also submitted answers to interrogatories by LWCC and Mrs. McClure in support of the motion to establish that neither party asserted that LRMRA provided workers’ compensation coverage at the time Mr. McClure retired.

At the hearing on RMI’s motion, Pine-ville introduced an affidavit which detailed its workers’ compensation coverage for the period beginning January 1, 1987. The affidavit reflected that Pineville had workers’ compensation coverage with RMI for the period January 1, 1987 through December 31,1998.

RMI argued that it was not responsible for Mrs. McClure’s claim for death benefits pursuant to the last injurious exposure rule, as pronounced in Gales v. Gold Bond Building Products, 493 So.2d 611 (La.1986), and Beason v. Red Ball Oxygen Co., 29,894 (La.App. 2 Cir. 10/29/97), 702 So.2d 26. In Gales, the supreme court adopted the last injurious exposure rule, as opposed to apportioning fault among all employers and their insurers whose employment contributed to a workers’ compensation claimant’s occupational disease, explaining:

The last injurious exposure rule avoids most of the problems of the apportionment [among employers] solution and because of this promotes efficient administration, speedy payment of claims, and, in most instances, provides the highest level of benefits for the claimant.... [W]e conclude that, as between the successive employers themselves, the solution of assigning liability according to the last injurious exposure most effectively furthers the principles and goals of workers’ compensation laws.

Id. at 617 (citation omitted).

| Reason applied the same principle to workers’ compensation insurers’ liability. The claimant in Beason sought benefits for his occupational disease. He sued his employer and an insurer that provided workers’ compensation coverage for a period of time during his employment. He claimed that each insurer which provided workers’ compensation coverage during the time of his “injurious exposure” was solidarity liable for his claim. The defendant insurer’s policy contained a provision which limited the insurer’s liability for occupational disability claims to claims where the claimant’s “last exposure” to the condition which caused his disability occurred during the insurer’s policy period. The court observed that the insurance contract “constitutes the law between the parties and is enforced as written if the policy terms express the intent of the parties,” and held that the insurer sued was not liable for the claim, as the claimant’s last performance of repetitive arm, hand, and wrist movements, which contributed to his occupational disease, did not occur during the insurer’s policy period. Id. at 28.

The occupational disease provision of the Workers’ Compensation Act, La. R.S. 23:1031.1, gave rise to the last injurious exposure rule. See Gales, 493 So.2d 611. The occupational disease provision entitles employees disabled by occupational diseases to compensation as if they were injured in accidents in the course and scope of their employment. La.R.S. 23:1031.1(A).

The WCJ concluded that the language of the Heart and Lung Act rendered evidence of last injurious exposure irrelevant. The WCJ reasoned that, because the Heart and Lung Act does not require a fireman to establish any type of injurious exposure, LWCC knew or should have known when it issued its policies to Pine-ville 19that it would be responsible for any workers’ compensation claims made under the Heart and Lung Act by firemen who retired during its coverage period.

The Heart and Lung Act confers on firemen “all rights and benefits” afforded a claimant suffering from an occupational disease; however, it does not track the language of the occupational disease provision. La.R.S. 23:1031.1. Section B of the latter provision requires that occupational diseases be “due to causes and conditions characteristic of and peculiar to the ... employment in which the employee is exposed to such disease.” The Heart and Lung Act does not contain such a requirement. Instead, it classifies heart and lung ailments as being “connected with employment.” La.R.S. 33:2581. This distinction was noted in Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4 Cir.1975), writ denied, 329 So.2d 760 (La.1976), and led the court to conclude that the jurisprudence interpreting La.R.S. 23:1031.1 is not directly applicable to the Heart and Lung Act.

The Heart and Lung Act significantly simplifies a fireman’s burden of proof in an occupational disease claim, especially a fireman who has been employed for more than five years. Requiring firemen to comply with the last injurious exposure rule imposes a burden of proof that the Heart and Lung Act does not, and imposition of such a requirement would hinder its principles and goals. For these reasons, we find no error with the WCJ’s interpretation of the Heart and Lung Act, as it pertains to firemen who have been employed by the same employer for more than five years.

We do not believe this holding is in derogation of Beason, which held that policy provisions must be upheld if they “express the intent of the parties.” The last exposure provision of LWCC’s policy tracks the language of La.R.S. 23:1031.1 and jurisprudence interpreting it. The Heart and Lung Act does not track the language of |inthe La.R.S. 23:1031.1 and, consequently, jurisprudence interpreting it is not necessarily pertinent to application of the Heart and Lung Act. See Vincent, 326 So.2d 401. Undoubtedly, Pineville intended to purchase a policy which would satisfy all workers’ compensation claims asserted against it. The Heart and Lung Act does not require evidence of injurious exposure; therefore, it is reasonable to conclude that Pineville did not intend to purchase a policy which required such evidence.

Disposition

The judgment of the WCJ is affirmed. All costs associated with filings made by Pineville and RMI’s responses to those filings are assessed to Pineville. All costs associated with filings made by LWCC and RMI’s responses to those filings are assessed to LWCC.

APPEAL OF DENIAL OF MOTION FOR NEW TRIAL DISMISSED; MOTION TO DISMISS ANSWER TO APPEAL GRANTED; SUMMARY JUDGMENT AFFIRMED.

      . A trial on the merits was held after summary judgment was granted in favor of RMI. Appeals pertinent to the judgment on the merits are the subject of a separate appeal. See McClure v. City of Pineville, 06-279 (La.App. 3 Cir. 12/6/06), 944 So.2d 795, 2006 WL 3498300.


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    Melvin R. SMITH v. STATE FARM INSURANCE COMPANY, et al.
    No. 06-826.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Edward Larvadain, Jr., Edward Larva-dain, Jr. & Associates, Alexandria, Louisiana, for Plaintiff/Appellant, Melvin R. Smith.
    Bonita K. Preuett-Armour, Armour Law Firm, Alexandria, Louisiana, for Defendants/Appellees, State Farm Insurance Co., Dorothy Clover.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

_JjMelvin Smith, a self-employed concrete finisher, appeals the dismissal on summary judgment of his suit for personal injuries allegedly sustained while working at the home of Dorothy Clover. For the following reasons, we affirm.

Factual and Procedural History

In April of 2004, Ms. Clover entered into a verbal agreement with Mr. Smith for him to pour a concrete driveway at her home in Alexandria, Louisiana. Before he poured the concrete, Mr. Smith removed two pieces of vinyl siding from the home to prevent concrete from splashing on them. Approximately a week after Mr. Smith completed the driveway, Ms. Clover called him, requesting that he return to her home to replace the two pieces of siding. Mr. Smith agreed to do so at no extra charge. Upon his return, he was able to replace one piece of siding, but only after struggling through several attempts. Ms. Clover then suggested that the other piece needed to be cut to fit back into place, and she provided Mr. Smith with some knives to trim the siding. When the knife or knives that Ms. Clover supplied proved insufficient for the task, Mr. Smith attempted to trim the remaining piece of siding with his own reciprocating saw and blade that he had in his truck. As he began to cut the siding with his saw, a piece of vinyl broke off and struck him in the left eye.

Mr. Smith sued Ms. Clover and her homeowner’s insurer, State Farm Fire and Casualty Company (State Farm), alleging that he was injured while performing the work in the manner insisted upon by Ms. Clover. Ms. Clover and State Farm filed a motion for summary judgment, arguing that they were not responsible for Mr. Smith’s actions as an independent contractor. After taking the matter under advisement to consider the affidavit of Ms. Clover and the deposition of Mr. Smith, the trial court agreed that Mr. Smith was an independent contractor and granted summary judgment 12in favor of Defendants. On appeal, Mr. Smith argues that the trial court erred in finding him to be an independent contractor, or alternatively, in failing to conclude that this case falls within one of the exceptions to the general rule that a property owner is not responsible for injuries to independent contractors.

Opinion

Appellate courts review summary judgments de novo, applying the same criteria as the district courts in determining the appropriateness of summary judgment. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131. As provided in La.Code Civ.P. art. 966(B), summary judgment should be rendered “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.” The burden of proof on a motion for summary judgment is set forth in La.Code Civ.P. art. 966 C(2) as follows:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In Williams v. Gervais F. Favrot Co., 499 So.2d 623, 625 (La.App. 4 Cir.1986), writ denied, 503 So.2d 19 (La.1987) (citations omitted) (emphasis added), the court summarized the jurisprudence setting forth a property owner’s liability for the actions of an independent contractor as follows:

As a general rule, property owners are not liable for the negligence of independent contractors who are performing work for the owner. In determining whether the person performing the work is an |3employee or an independent contractor the focus of the inquiry is directed at gauging the degree of the contractor’s independence or subserviency. Factors which are relevant to this inquiry include the independent nature of the contractor’s business, the existence of a contract for 'performance of a specific job, payment of a fixed price for the work, employment by the contractor of assistants ivho are under his control, the furnishing of necessary tools and materials by the contractor and his right to control the conduct of his work while in progress. The most important of these factors is the degree of control which the owner can exercise over how the contractor performs the work. Thus, where the contract provides that the owner’s control over the contractor is limited to providing plans and specifications and his only right is to insist that the job be performed in accordance with those plans and specification[s], an independent contractor relationship exists and the owner is not vicariously liable for the contractor’s negligence.
This general rule of non-liability has two exceptions: first, the owner may not avoid liability if the work undertaken by the independent contractor is inherently or intrinsically dangerous; second, the oumer may be held liable if he exercises control over the contractor’s methods of operation or gives express or implied authorization to an unsafe practice.

Further, the fact that the property owner periodically inspects the job site to be sure that the work is being performed in accordance with specifications “does not constitute the exercise of operational control” and will not render the owner liable for the contractor’s negligence. Id. at 626.

In his deposition, Mr. Smith testified that he has been a self-employed concrete finisher for about ten years, advertising that he specializes in driveway, patio, and house slabs, as well as sidewalks and dirt work. He explained that he reached a verbal agreement with Ms. Clover, as he did with most of his customers, to perform the work requested for a set amount, with no deductions made for any type of taxes. Once he collected from the customer, he would then pay the workers that he had recruited for that particular job. Mr. Smith eventually performed two concrete “pours” for Ms. Clover, the first occurring under her carport and through a portion of her front yard, the second occurring in the yard to the street. Before he began the |4first “pour,” Mr. Smith decided to remove two pieces of vinyl siding from under the carport to prevent concrete from splashing onto the siding. Ms. Clover did not instruct him to remove the siding, but rather told Mr. Smith “to do whatever [he] had to do ... to get it right.” About one week after he completed the first “pour,” Ms. Clover called him and asked him to replace the two pieces of siding.

When Mr. Smith encountered difficulty in replacing the siding upon his return, Ms. Clover suggested to him that the siding needed to be trimmed to fit back into place, and she retrieved a knife or knives from her home for his use in this task. When the knife or knives provided by Ms. Clover proved insufficient to cut the siding, Mr. Smith decided to retrieve his own reciprocating saw and blade from his truck to complete the job. In his deposition, he testified that Ms. Clover did not suggest or instruct him to use the saw. His injury occurred just as the blade of the saw came into contact with the siding.

Taking all of these facts into consideration, we find that the trial court was correct in concluding that Mr. Smith was an independent contractor, and we further find that the exception to the rule that a property owner is not liable for the torts of an independent contractor does not apply in this case. As the mover for summary judgment, Ms. Clover and State Farm had the burden of proving that no genuine issue of material fact existed as to Mr. Smith’s independent contractor status. They did this by showing that the parties entered into a verbal contract, that Mr. Smith considered himself to be “my own boss” and not the employee of anyone else, that Mr. Smith was the party who recruited any workers that were necessary to complete the job, and that Mr. Smith supplied the tools for the job, and in particular the tool that caused the present injury. The record also shows that Ms. Clover did not control how Mr. Smith [ sperformed his job, particularly concerning the removal and replacement of the siding: she told Mr. Smith that he could “do whatever [he] had to do ... to get it right,” and she did not suggest the manner in which Mr. Smith actually cut the siding by use of a reciprocating saw. Further, as Ms. Clover played no role in the decision to use the reciprocating saw, she “did not approve or disapprove of the methods of work, and [she] did not give authorization to any unsafe practices.” Sims v. Cefolia, 04-343, p. 7 (La.App. 5 Cir. 11/30/04), 890 So.2d 626, 631, writ denied, 05-5 (La.3/11/05), 896 So.2d 73. Accordingly, we find that the trial court properly granted summary judgment in favor of Ms. Clover and State Farm.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff/Appellant, Melvin R. Smith.

AFFIRMED.


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    Susan Dunn CARRAGHER v. PITTMAN BROADCASTING SERVICES, L.L.C.
    No. 06-857.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Benjamin W. Mount, Bergstedt & Mount, Lake Charles, LA, for Plaintiff/Ap-pellee, Susan Dunn Carragher.
    Jimmy R. Faircloth, Jr. Faircloth, Vilar & Davidson, L.L.C., Alexandria, LA, for Defendant/Appellant, Pittman Broadcasting Services, L.L.C.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

| TPittman Broadcasting Services, L.L.C. (“Pittman Broadcasting”) appeals an award of unpaid wages, penalties, and attorney fees in favor of its former employee, Susan Dunn Carragher. For the following reasons, we affirm as amended.

Discussion of the Record

Ms. Carragher was employed by Pittman Broadcasting from January 15, 2000 through October 5, 2001 as sales manager for the radio station KAOK in Lake Charles, Louisiana. Prior to working for Pittman Broadcasting, she had been employed for approximately five years as an account executive by Cumulus Broadcasting (“Cumulus”), where she earned between $47,000.00 and upwards of $50,000.00 in the last two years of her employment there. Ms. Carragher testified that she agreed to work for Pittman Broadcasting after its owner, Dr. Marcus Pittman, guaranteed her a salary of $5,500.00 per month, or $66,000.00 per year, plus commissions, for a minimum of two years. She explained that she accepted Dr. Pittman’s offer because of the salary guarantee, so that she would not have to worry about earning commissions anymore.

It is undisputed that for the first three months of her employment at Pittman Broadcasting, Ms. Carragher was paid according to the above terms, but that she received a substantially smaller check in May of 2000. She testified that, when she questioned Dr. Pittman about this, he explained that he was having serious financial problems, but that he would pay her “the balance due” as soon as he received a settlement from a lawsuit involving damage to a broadcasting tower that occurred before she started working there.

In a letter dated May 29, 2000, Ms. Carragher wrote to Dr. Pittman stating that she had left her former job at Cumulus “based on a promise to pay me $5,500 per |2month and a commission on sales over thirty thousand,” but that “[w]e have continually chipped away at that deal, now to the point of a new pay plan,” which plan she described as “unacceptable.” She included with the letter a proposed contract with a lower “salary” and “guaranteed commissions” that would not have to be paid until the following month, but that would still guarantee a minimum pay of $66,000.00 per year. That agreement was never signed by either party.

Ms. Carragher explained that she continued working for Pittman Broadcasting based upon Dr. Pittman’s assurances that he would pay her “the right amount” when he received the expected settlement proceeds. She testified that she left that job in October of 2001 because of “lack of payment,” her inability to live on what she had been receiving, and the failure to “get a straight answer” on when she would be paid what she was owed.

Jane Young, who worked with Ms. Car-ragher at Cumulus, testified that she was concerned about Ms. Carragher leaving her position there, where she was the leading salesperson who was making “a good bit of money.” Ms.'Young explained that she overheard the conversation in which Dr. Pittman offered Ms. Carragher the job at his company, when his call came while the two were working together and Ms. Carragher transferred it to a conference call. According to Ms. Young, she heard Dr. Pittman offer Ms. Carragher $5,500.00 a month for two years, which offer was to be put in writing within one week.

Scott Bailey, a longtime friend of Ms. Carragher’s who also participated in a program on KAOK, testified that Ms. Car-ragher sought his advice about whether to accept the position at Pittman Broadcasting. Mr. Bailey testified that he was concerned about Ms. Carragher leaving her job at Cumulus, where she had reached |3her highest income ever, but that Ms. Carragher explained to him that the new position included a guarantee of $5,500.00 a month and represented a chance to get into management, whereas her job at Cumulus was still on a commission basis.

Justin Morris, a producer who worked with Ms. Carragher at Pittman Broadcasting, testified that he overheard numerous conversations in which Ms. Carragher asked Dr. Pittman, “When am I going to get what’s owed?” According to Mr. Morris, Dr. Pittman always replied that it was contingent on receipt of monies from the damage to the tower, as well as from insurance proceeds that would be forthcoming from a fire in which Pittman Broadcasting’s office was destroyed in February of 2001. Mr. Morris also described the payment of wages at the station as “completely unstable,” in that employee paychecks were rarely delivered in a timely manner.

Ted Williams, who contributed to a gardening program on KAOK, testified that he was present during a “pretty heated discussion” at a restaurant in which Dr. Pittman suggested bringing in a new employee as general manager of the station and Ms. Carragher then brought up that she was still owed a sum of money based upon her guaranteed salary of $5,500.00 a month. Mr. Williams also described a conversation in which Dr. Pittman and Ms. Carragher’s husband “were coming almost to blows,” with the Carraghers stating, “You’re not paying us what you said you would pay us,” and Dr. Pittman replying that he would pay them as soon as he received the insurance money.

Dr. Pittman testified that he offered Ms. Carragher only three months at $5,500.00 per month, which amount represented a monthly salary of $1,500.00 plus a draw of $4,000.00 towards future commissions; after the first three months, she |4would be paid a salary of $1,500.00 per month plus a thirty-percent commission on her advertising sales. He explained that in May of 2000, Ms. Carragher’s salary was not reduced, nor was her commission schedule altered, but rather she was no longer receiving the automatic $4,000.00 draw because that was to come from actual commissions. He stated that he did not agree to the terms of the written contract that Ms. Carragher presented to him in May of 2000 and that he was not aware of the letter dated May 29, 2000 until June of 2005. He testified that in May of 2000, when Ms. Carragher began complaining about the commissions, he allowed her to live in a house that he owned rent-free, whereas before she had been paying him $510.00 per month for use of the home. Dr. Pittman also allowed Ms. Carragher to operate her own advertising agency from his broadcasting offices. Dr. Pittman acknowledged that he had spoken of receiving a settlement for the damaged tower, but he testified that when he did so, he referred to using that money to upgrade the station’s equipment or to hire additional salespeople, rather than to pay Ms. Car-ragher any additional money.

Dr. Pittman’s wife, Janet, testified that, as a co-owner of the business, she exercised some payroll responsibilities, including keeping an activity log in which she recorded each employee’s starting salary, as well as any subsequent changes, and any other information that may affect payroll. Ms. Carragher’s activity log reflects an initial entry that states, “Salary: $5500/ month[,] first $4000 draw on commission.” The next entry reflects starting May 1, 2000: “Salary $1500/month + commissions @ 30%.” Mrs. Pittman explained that the second entry was not recorded until May of 2000, and she acknowledged that the first entry did not indicate that the initial arrangement was meant to be in place for only three months.

l,sAt the conclusion of the evidence, the trial court ruled from the bench, finding that Ms. Carragher had proved her case by a preponderance of the evidence, citing her credibility as well as that of her supporting witnesses. A judgment was later signed awarding Ms. Carragher a total of $42,785.41 in unpaid wages, as well as $16,273.97 in penalty wages and $7,706.54 in attorney fees under La.R.S. 23:632.

Unpaid Wages

Pittman Broadcasting first argues that the trial court erred in awarding unpaid wages under La.R.S. 23:631, where Ms. Carragher was paid in the amount and manner to which the parties originally agreed, or in the alternative, pursuant to a modified agreement as evidence by the conduct of the parties.

Louisiana Revised Statutes 23:631(A)(l)(b) (emphasis added) provides:

Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.

In the present case, Ms. Carragher sought wages in excess of $500.00 due under the terms of an oral contract. In Smith v. Dishman & Bennett Specialty Co., Inc., 35,682, pp. 3-4 (La.App. 2 Cir. 1/23/02), 805 So.2d 1220, 1223 (citations omitted), the court explained the plaintiffs burden of proof in such cases:

In a suit to recover additional wages in excess of $500.00 under an oral contract of employment the basic rule governing proof is the second paragraph of La. C.C. art. 1846, which requires that plaintiff prove his case by one credible witness “and other corroborating circumstances.” The plaintiff may be the one credible witness. “Other | ficorroborating circumstances” need only be general in nature; independent proof of every detail of the agreement is not required.

Additionally, “the trial court’s determination as to the pay rate promised under the terms of the oral contract of employment is a finding of fact....” Id. at 1224. Accordingly, the following standard of review applies:

[A] court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review; the issue for the reviewing court is not whether the trier of fact was wrong, but whether the factfinder’s conclusions were reasonable under the evidence. When a factfinder’s determination is based on its discretion to credit the testimony of one of two or more witnesses, that finding can virtually never be wrong.

Id. at 1223-24 (citations omitted).

In the present case, the trial court found that Ms. Carragher proved her case by a preponderance of the evidence based upon its finding that her testimony was credible, as was that of several witnesses called on her behalf. Ms. Carragher, Ms. Young, and Mr. Bailey all testified regarding Ms. Carragher’s concerns about leaving her high-paying, but commission-based job at Cumulus, as well as the importance of a position with a guaranteed salary. Ms. Young testified that she actually overheard the offer and acceptance of a position that guaranteed a monthly salary of $5,500.00 per month for two years. Payroll records establish that|7Ms. Carragher was issued checks corresponding to this figure for approximately three months. Mr. Morris and Mr. Williams testified as to Ms. Carragher’s demands, after her paychecks were reduced, that she was still owed monies based upon a monthly salary of $5,500.00, as well as to Dr. Pittman’s assurances that she would be paid with the proceeds from a pending lawsuit. We find no error in the trial court’s conclusion that Ms. Carragher proved the existence of a contract of employment through credible testimony and other corroborating circumstances. We further find that the evidence does not support a subsequent modification of that contract, given Ms. Carragher’s written objection calling her new pay plan “unacceptable” and the testimony of those who witnessed her continued demands to be paid in accordance with the original contract. The trial court’s award of unpaid wages is hereby affirmed.

Penalty Wages and Attorney Fees

Pittman Broadcasting next argues that the trial court erred in awarding penalty wages and attorney fees pursuant to La. R.S. 23:632. That statute provides:

Any employer who fails or refuses to comply with the provisions of R.S. 28:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

(Emphasis added.)

Concerning penalty wages, the courts have recognized:

In order for the employee to recover penalty wages, the employer must be found to have acted in an arbitrary or unreasonable manner. | sOnly “a good-faith, non-arbitrary defense to liability for unpaid wages, i.e., a reasonable basis for resisting liability” permits a court to excuse the employer from the imposition of penalty wages.

Dickerson v. Cajun Communications of Texas, Inc., 40,026, p. 6 (La.App. 2 Cir. 8/17/05), 910 So.2d 477, 481, writs denied, 05-2267 (La.3/8/06), 925 So.2d 490, and 05-2332 (La.3/10/06), 925 So.2d 520 (citations omitted).

Attorney fees, however, “are to be awarded in the event that the plaintiff files a well-founded suit for unpaid wages, even if penalty wages are not due.” Id. (emphasis added).

In the present case, the trial court awarded both penalty wages and attorney fees upon finding that Ms. Carragher’s suit for unpaid wages was well-founded. Although this is the correct standard to be applied in awarding attorney fees, a more stringent standard must be met before penalty wages can be awarded. Specifically, the trial court should have determined whether the employer presented a “good-faith, non-arbitrary” defense that would defeat the claim for penalty wages. Id. Because the record before us is complete, however, we are able to determine this issue de novo.

In Dickerson, 910 So.2d 477, the issue presented was whether the employer and employee had agreed that the employee would be entitled to severance pay should he be terminated within the first ninety days of hire. The court accepted the employee’s testimony on this point, then went on to conclude that arbitrary conduct by the employer was implicit in this finding, reasoning:

The dispute in this case was whether the parties reached an agreement concerning severance pay commencing with the first day of employment. [The employee] testified that the parties had reached such an agreement but that [the employer] had refused to honor it. In finding [the employee’s] testimony credible, the court necessarily found that [the employer] knew and agreed to the severance payments.

| Jd. (emphasis added). The present case, likewise, involves the acceptance of one party’s testimony over another’s, with the acceptance of that testimony implying knowledge of the disputed terms. Ms. Carragher’s testimony, as well as that of at least two other witnesses, established not only her continued demands to be paid per the $5,500.00/month agreement, but also Dr. Pittman’s assurances of payment upon receipt of certain funds. On this basis, we find that an award of penalty wages is proper.

Because Ms. Carragher’s suit for unpaid wages has merit, the award of attorney fees is affirmed. Ms. Carragher has answered the appeal, seeking additional attorney fees for defending this appeal, which we fix at $1,500.00.

Decree

For the above reasons the judgment of the trial court is affirmed, but is amended to award additional attorney fees of $1,500.00. Costs of this appeal are assessed to Pittman Broadcasting, L.L.C.

AFFIRMED AS AMENDED.

      . The trial court awarded unpaid wages based upon a salary of $66,000.00 per year, subject to a credit for the rent and utilities that would have been due while Ms. Carragher occupied the house owned by Dr. Pittman.

      . Louisiana Civil Code Article 1846 provides in full:
      When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of five hundred dollars may be proved by competent evidence.
      If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances.