author: PETERS, J.

text:
    Anthony LYONS v. Wayne DOHMAN.
    No. 07-0053.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      James S. Gates, Opelousas, LA, for Plaintiff/Appellant: Anthony Lyons.
    Michael V. Matt, Eunice, LA, for Defendant/Appellee: Wayne Dohman.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

hThe plaintiff, Anthony Lyons, appeals the denial of his motion to set aside an order of dismissal of his action against the defendant, Wayne Dohman. For the following reasons, we affirm the trial court’s decision to deny the motion to set aside the order of dismissal.

DISCUSSION OF THE RECORD

This litigation began on June 10, 2002, when Lyons filed a petition for damages,' naming Dohman as defendant. The underlying claim related to the alleged conversion by Dohman of a crawfish boat owned by Lyons. Dohman answered the suit by pleadings filed June 28, 2002. Thereafter, the trial record contains no additional filings until October 25, 2005, when Lyons filed a motion to set the matter for trial. The trial court, by an order signed November 4, 2006, fixed the matter for trial on March 27, 2006.

Dohman then filed an ex parte motion on February 3, 2006, requesting that the trial court dismiss Lyons’ suit based on the abandonment provisions of La.Code Civ.P. art. 561. As proof of his right to relief, Dohman attached his affidavit asserting that no action had been taken in the prosecution or defense of the litigation for a period in excess of three years. The trial court dismissed Lyons’ suit by a written ex parte order signed February 7, 2006, without holding a hearing on the issue. Thereafter, on March 14, 2006, Lyons filed a motion to set aside the February 7 judgment of dismissal and to reinstate his petition. Following the July 17, 2006 hearing, the trial court rejected Lyons’ motion. After the trial court executed a judgment rejecting his motion to set aside the dismissal, Lyons perfected this appeal, ^asserting that the trial court erred in dismissing his suit as having been abandoned.

OPINION

Louisiana Code of Civil Procedure Article 561(A)(1) provides in pertinent part that “[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” Additionally, the three-year abandonment provision

shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

La.Code Civ.P. art. 561(A)(2) (emphasis added). A step taken by a plaintiff after the three-year period has run is ineffective to prevent a judgment of dismissal from being granted. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779. Thus, to prevent a claim from being dismissed based on abandonment pursuant to La.Code Civ.P. art. 561, a party must do three things: (1) Take some step in the prosecution or defense of the action; (2) take that step in the trial court and, with the exception of formal discovery, on the record of the suit; and (3) take the step within three years of the last step taken by either party. Id.

Lyons acknowledges that at the time the trial court dismissed his action the trial record contained no evidence of any step in the prosecution or defense of this action between June 28, 2002 and October 25, 2005, a period in excess of three years. Nonetheless, Lyons argues that the trial court erred in dismissing his action because, |son October 29, 2003, his counsel mailed a letter to the clerk of court requesting that the matter be set for trial. Although the letter was never filed in the trial record, Lyons asserts that this action was a step in the prosecution that interrupted the three-year limitation provided in La.Code Civ.P. art. 561.

Lyons attached a copy of this letter to his motion to set aside the dismissal and introduced it as evidence in support of his position at the July 17, 2006 hearing. Additionally, at the hearing Lyons’ trial counsel unsuccessfully attempted to obtain a stipulation from Dohman’s trial counsel that he had received a courtesy copy of the October 29, 2003 letter, but Dohman’s trial counsel never responded and the stipulation was never consummated. Lyons called no witnesses to testify at the July 17, 2006 hearing and, thus, the only evidence of the attempt to set the matter for trial before the trial court was the copy of the October 29, 2003 letter. The trial court rejected Lyons’ argument that the October 29, 2003 letter constituted a step in the prosecution of the action, concluding that because the letter “did not make it to the | ¿record” and because evidence of the step taken in prosecution or defense must appear in the record, the matter was abandoned.

Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. Bias v. Vincent, 02-642 (La.App. 3 Cir. 12/11/02), 832 So.2d 1153, writ denied, 03-0112 (La.3/21/03), 840 So.2d 542. On the other hand, whether a particular act, if proven, precludes abandonment is a question of law which we review by simply determining whether the trial court’s interpretative decision is correct. Jackson v. BASF Corp., 04-2777 (La.App. 1 Cir. 11/4/05), 927 So.2d 412, writ denied, 05-2444 (La.3/24/06), 925 So.2d 1231; Olavarrieta v. St. Pierre, 04-1566 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, writ denied, 05-1557 (La.12/16/05), 917 So.2d 1118.

In the matter now before us, the trial court’s conclusion that, to be considered, evidence of a step in the prosecution must be found in the record, is a conclusion of law which we find was reached in error. The supreme court has long recognized that La.Code Civ.P. art. 561 “is to be liberally construed in favor of maintaining a plaintiffs suit.” Clark, 785 So.2d at 785. That is to say, “abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned.” Id. at 786. With the liberal interpretation of La.Code Civ.P. art. 561 in mind, the jurisprudence has established that, in certain circumstances, letters designed to move a case forward that have been delivered to a clerk of court but not filed in the record by the clerk of court may satisfy the requirement of La. Code Civ.P. art. 561. See Hargis v. Jefferson Parish, 02-72 (La.3/17/00), 755 So.2d 891 (overruling Hargis v. Jefferson Parish, 99-971 (La.App 4 Cir. 12/8/91), 748 So.2d 606); Ellzey v. Employers Mut. Liab. Ins. Co., 388 So.2d 843 (La.App. 2 Cir.), writ denied, 394 So.2d 617 (La.1980); and Zion v. Stockfieth, 616 So.2d 1373 (La.App. 5 Cir.), writs denied, 620 So.2d 882 (La.1993).

Although we find that the trial court reached an erroneous legal conclusion in dismissing Lyons’ action, we find that the resulting dismissal was correct. Once the trial court entered a formal order of dismissal on the basis of Dohman’s affidavit and an examination of the trial record pursuant to La.Code Civ.P. art. 561(A)(2), Lyons responded by filing a motion to set aside the dismissal, as provided for in La.Code Civ.P. art. 561(A)(3). The burden was on Lyons to prove, by extrinsic evidence, a permissible cause outside the record that prevented accrual of the three-year abandonment period. Moore v. Eden Gardens Nursing Ctr., 37,362 (La.App. 2 Cir. 6/25/03), 850 So.2d 998. That is to say, Lyons was required to present evidence for the record sufficient to set aside the trial court’s prior dismissal. Hica Steel Foundry & Upgrade Co. v. Arklatex Envtl. Consultants, Inc., 39,460 (La.App. 2 Cir. 4/6/05), 899 So.2d 802. Lyons failed in that burden of proof.

At best, Lyons established that the October 29, 2003 letter had been prepared for delivery. He failed to prove by extrinsic evidence that the letter was mailed to, delivered to, or received by the clerk of court. Indeed, there was no evidence that the letter ever left the office of Lyons’ counsel. In short, there was a total absence of any proof of facts prerequisite to reaching the question of whether the letter amounted to a step in the prosecution of the case. Thus, we affirm the trial court judgment, but for different reasons than those expressed by the trial court.

| .DISPOSITION

For the foregoing reasons we affirm the trial court’s order dismissing Anthony Lyons’ action against Wayne Dohman. We assess all costs of these proceedings against Anthony Lyons.

AFFIRMED.

      . The order was cast in the form of a judgment granting the defendant's motion to dismiss for want of prosecution. However, by the effect of law the ruling was an order denying the motion to set aside the dismissal. The abandonment itself was operative without a formal order under the provisions of La. Code Civ.P. art. 561(A)(1) and (2), but a formal order of dismissal was rendered in accordance with Subsection (A)(2).

      .The letter was addressed to the Office of Clerk of Court for Acadia Parish, references this case, and reads:
      Dear Sir/Madam:
      This letter is to request that the above-captioned matter be set for trial. An answer has been filed, and the case is in a position to be tried.
      Please advise if anything further is required by this Court to set for trial.
      Sincerely yours,
      /s/ JAMES S. GATES
      JSG:ymp
      cc: Mr. J. Lee Wimberly, Jr.

      . Between October 29, 2003, and the July 17, 2006 hearing, Dohman had retained new counsel and his former counsel was not present at the hearing.

      . Although not called as a witness, the Acadia Parish Clerk of Court was present for the hearing. He interjected himself into the proceedings and informed the trial court in open court that his office "never received” the October 29, 2003 letter.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Nora MILLER, et vir. v. LAMMICO, et al.
    No. CA 07-120.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Richard B. Cappel, Raggio, Cappel, Chozen and Berniard, Lake Charles, LA, for Defendants/Appellees, St. Paul Fire & Marine Insurance Company, Dr. Charles Brdlik, Dr. Robert Neal Brown.
    John Gregory Bergstedt, Bergstedt Law Firm, Lake Charles, LA, for Third-Party/Appellees, Louisiana Medical Mutual Insurance Company, Johnny R. Biddle, Jr., M.D.
    Milo Addison Nickel, Jr., Nickel Law Firm, Rayne, LA, for Third Party/Appellant, Louisiana Patient’s Compensation Fund.
    Todd A. Townsley, Townsley Law Firm, Lake Charles, LA, Edmund M. Thomas, Shreveport, LA, for Plaintiffs/Appellees, Timothy Miller, Nora Miller.
    Nadia Marie de la Houssaye, Perret Doise, Lafayette, LA, for Third-Party/Appellant, Louisiana Patient’s Compensation Fund.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

bln this medical malpractice case, Dr. Charles Brdlik, Dr. Neal Brown, them insurer, and the Louisiana Patient’s Compensation Fund (PCF) appeal the decision of the jury below finding in favor of the Plaintiffs, Nora Miller and Timothy Miller. For the following reasons, we affirm the decision as amended.

After several years of trying unsuccessfully to get pregnant, including by in vitro fertilization, Nora Miller became pregnant in 1997 at the age of 39. She delivered a healthy baby boy by caesarian section at Women’s and Children’s Hospital on December 31 of that year. The c-section was performed by her OB-Gyn, Dr. Johnny Biddle. Around January 4, 1998, she began to suffer abdominal pain and a fever of 102.6 degrees. She was placed on antibiotics and instructed that she could no longer breast-feed her baby. Her breast milk was pumped and discarded. Between January 4 and January 14, she continued to suffer abdominal pain, often screaming due to the intensity, which she rated as a nine out of ten. She also continuously ran a fever, which at one point reached as high as 105 degrees. Despite her fever and pain, as well as a pelvic CT scan that indicated a possible infection, Dr. Biddle did no pelvic exam on her. At one point, he went over fifty hours without even seeing her. Dr. Biddle discharged Mrs. Miller from Women’s and Children’s on January 14, 1998, her fever and pain unexplained and unresolved.

At home, Mrs. Miller continued to get worse. Her fever and pain continued unabated. She could barely walk. Mr. Miller took her to St. Patrick Hospital, where she was admitted for treatment. Dr. Biddle ordered another CT scan of Mrs. Miller’s abdomen and pelvis, which was performed on January 18 by Dr. Brown, and a gallium scan, which was performed by Dr. Brdlik between January 20 and 23. Dr. Brown described some abnormalities in his report but made no conclusions or J^recommendations for Dr. Biddle. Dr. Brdlik reported the findings of his scan to be normal and showing no signs of infection, although he would later admit this was incorrect. Dr. Biddle again discharged Ms. Miller from the hospital with pain and fever.

Back at home, Mrs. Miller continued to get worse. She remained in bed with pain and fever, unable to take care of her child. This progressed to the point that Mr. Miller felt as if she were going to die. He took Mrs. Miller to get a second opinion from Dr. Randall Wagman. Mrs. Miller was so ill that he had to carry her into Dr. Wagman’s office. After a cursory physical exam, Dr. Wagman concluded that Mrs. Miller probably had a pelvic abscess. He ordered radiological scans which revealed a massively infected pelvis. Mrs. Miller was admitted to West Calcasieu Cameron Hospital under the care of Dr. Ben Darby. An emergency D & C was performed on January 31, 1998. Due to the damaged and necrotic nature of her tissue, Mrs. Miller began to bleed severely during the procedure. To help stem the bleeding, a laparotomy was performed wherein Mrs. Miller’s uterus was removed. After over thirty days of infection, the uterus was distorted and necrotic to the point that it literally fell apart as it was removed from her body. The abscess surrounding the uterus had adhered to the walls of Mrs. Miller’s bowels, requiring careful separation to prevent further damage to them. Dr. Darby told the Millers that Mrs. Miller had been three to seven days from death, had she not been treated.

In July of 1998, the Millers filed suit against Drs. Biddle, Brdlik, and Brown. Dr. Biddle admitted fault and paid the Millers $100,000.00. The PCF thus became liable for any judgment against him greater than that amount. Dr. Brdlik admitted to committing negligence in the reading of the gallium scan and a directed verdict was entered against him on that issue. After hearing the facts of this case and the |stestimony of experts from both sides, the jury returned a unanimous verdict in favor of the Millers. The jury apportioned fault eighty percent to Dr. Biddle, ten percent to Dr. Brown, and ten percent to Dr. Brdlik. Monetary damages totaling over $866,000.00 were awarded, then reduced by the trial court in compliance with the Louisiana Medical Malpractice Act to $566,400.05, including past and future medical expenses. However, the trial court ordered the judgment to be written so that both Dr. Brown and Dr. Brdlik would be liable for ten percent of the judgment prior to the reduction of the cap, or roughly $86,600.00. The PCF, after a $100,000.00 credit for the money already paid by Dr. Biddle, would be liable for $271,840.04. From this decision, Dr. Brown, Dr. Biddle, their common insurer, and the PCF appeal.

The PCF asserts as its sole assignment of error that the jury abused its discretion in awarding damages. Dr. Brown and Dr. Brdlik jointly assert five assignments of error on appeal. They claim that the jury erred in finding that Dr. Brdlik’s admitted breach of the standard of care caused harm to the Plaintiff; that the jury erred in finding that Dr. Brown breached the standard of care and that that breach caused harm to the Millers; that the jury erred in apportioning fault among the Defendants; that the jury abused its discretion in awarding damages; and that the trial court erred in approving a form of judgment resulting in monetary awards against Drs. Brown and Brdlik disproportionate to the ten percent fault allocated to each of them.

Appellate review of factual determinations is governed by the manifest error standard of review. Under that standard of review, set forth in Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993), this court may only reverse a factual determination if we find from the record that (1) | ¿no reasonable basis exists for the finding and (2) the finding is clearly wrong or manifestly erroneous. The issue to be resolved by this court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Simpson v. Goodman, 97-2675, p. 4 (La.App. 1 Cir. 12/28/98), 727 So.2d 555. Under the manifest error standard of review, the appellate court may not overturn the factual findings of the trial court when there is conflicting evidence. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Brown v. Seimers, 98-694 (La.App.5Cir.1/18/99), 726 So.2d 1018, writ denied, 99-480 (La.4/1/99), 742 So.2d 556. Likewise, apportionment of fault is a finding of fact and is, therefore, reviewed pursuant to the manifest error-clearly wrong standard of review. Broussard v. Family Dollar Store, 05-645 (La.App. 3 Cir. 12/30/05), 918 So.2d 1148, writ denied, 06-303 (La.4/28/06), 927 So.2d 287.

Dr. Brdlik first claims that the jury erred in concluding that his admitted breach of the standard of care in improperly reading the gallium scan caused Mrs. Miller harm. He claims that because Mrs. Miller’s uterus was unsalvageable prior to the time he completed the scan, she suffered no injury from his failure to find the infection. We could not disagree more.

The jury heard conflicting expert testimony between Dr. James Brown, an expert for the defense, and Dr. Bruce Hal-bridge, the Millers’ own expert, concerning the time the advancing necrosis rendered Mrs. Miller’s uterus incapable of being saved. However, even accepting as true Dr. Brdlik’s position that the uterus was unsalvageable by the time he negligently misread Mrs. Miller’s “absolute no-brain-er” |fiof a scan, it is clear from the record that Mrs. Miller suffered due to Dr. Brdlik’s failure to act within the appropriate standard of care. Her infection continued to fester inside her to the point of mastication of her uterus, so that it fell apart upon removal and had to be taken out in pieces. She continued to suffer high fevers, nausea, and vomiting. She could not get out of bed nor bond with her child as the infection progressed further. When the infection and abscess were finally correctly diagnosed almost two weeks after Dr. Brdlik’s admitted mistake, she required two additional surgeries to address the problem. During these, she took fourteen units of blood due to blood loss resulting from the advanced decomposition of the uterus and surrounding blood vessels. The average woman typically has only twelve units of blood in her entire body. Dr. Halbridge testified that had the surgery been performed earlier, it would have been far better for Mrs. Miller, even had her uterus required removal, as the tissue and blood vessels surrounding the uterus would have had more integrity and would suture easier, resulting in less blood loss. In fact, Mrs. Miller’s infection was allowed to continue to advance after Dr. Brdlik incorrectly read her scan to the point that she was three to seven days away from death. To assert that this is not harm is absurd to the point of approaching frivolity. This assignment of error is devoid of merit.

Next, Dr. Brown claims that the jury erred in finding he breached the standard of care and that any breach caused Mrs. Miller harm. Again, we disagree. Dr. Jacques de la Bretton, the radiologist on Dr. Brown’s medical review panel, testified that the CT scan performed by Dr. Brown on January 18 revealed abnormalities not described in his report, including several collections of fluid and mesentery stranding. He testified that these would be indicators of infection. He testified that this would indicate a present danger to Mrs. Miller and would warrant a call to Dr. Biddle to | (¡discuss the findings. In fact, Dr. de la Bretton testified that he felt Dr. Brown had a duty to call Dr. Biddle. Dr. Biddle did not do so.

Dr. Mark Collins also testified that the CT showed signs of an inflammatory reaction and abnormal fluid collection indicating a blockage or abscess. He stated that while Dr. Brown’s report did correctly note some fluid and enlarging of the uterus, it failed to note inhomogeny of the uterus (an indicator of an invasion of the uterus), periuterine inflammatory reaction, and periuterine stranding. Dr. Collins testified that it is imperative that these changes be mentioned and that their omission is a breach of the standard of care. He also testified that, based on the results of the CT scan, the standard of care dictated a call to Dr. Biddle.

While Dr. Brown had expert testimony of his own claiming he did not breach the standard of care in reading or reporting the findings of the CT scan he performed, it is clear from their decision that the jury found the testimony of the Millers’ experts to be more credible. As noted above, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Brown, 726 So.2d 1018. It is clear that there exists a reasonable factual basis for the jury’s determination that Dr. Brown breached the standard of care. Accordingly, its findings cannot be manifest error. Furthermore, for all the reasons discussed above concerning Dr. Brdlik, it is clear that this breach caused harm to Mrs. Miller. This assignment of error is also without merit.

Next, Dr. Brown and Dr. Brdlik claim that the jury erred in apportioning them each with ten percent fault for Mrs. Miller’s injuries. Again, apportionment of fault is a finding of fact and is, therefore, reviewed pursuant to the manifest error-clearly 17wrong standard of review. Broussard, 918 So.2d 1148. It is clear from a reading of the record that the majority of fault lies with Dr. Biddle. He showed a near complete and utter lack of competence in his handling of Mrs. Miller. He allowed the infection to fester despite the fact that he should have known about it as early as January 4, when the record shows she would have had a near ninety percent chance of complete recovery. He never did a pelvic exam on Mrs. Miller, nor did he make a competent effort to determine the source of the infection. He went fifty hours without seeing a patient suffering from a 105 degree temperature, and he discharged her from the hospital despite her fever and pain. In all, Dr. Halbridge enumerated over twenty breaches of the standard of care by Dr. Biddle. However, it is also clear from the record that should Dr. Brown have correctly read his CT scan and brought the evidence of pelvic infection up with Dr. Biddle, Dr. Biddle could have determined the source of the infection and begun proper treatment. Likewise with Dr. Brdlik’s incorrect reading. Instead, the breaches of the standard of care by both Dr. Brown and Dr. Brdlik allowed the infection to continue to develop. The record shows a reasonable factual basis for the findings of the jury that Dr. Brown and Dr. Brdlik were each ten percent at fault. Again, we can find no manifest error in that decision.

Dr. Brown, Dr. Brdlik, and the PCF next claim that the jury awarded exorbitant damages to the Millers. Once more, we disagree. As noted by this court in Manning v. Barrilleaux, 06-1394, pp. 2-3 (La.App. 3 Cir. 3/7/07), 952 So.2d 919, 920.

General damages include an award for the victim’s pain and suffering, and as such, are intrinsically speculative and not subject to mathematical certainty. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. We review the trial court’s general damage award using the abuse of discretion standard set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The trier of fact is afforded much discretion in independently assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829 (La.1991). The award should be based |son the facts and circumstances of the particular case. Id. Only if we find that the trier of fact abused its discretion, may we lower to the highest reasonable amount or raise the award to the lowest reasonable amount and resort to prior awards to the extent that is reasonably within our discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

In essence, Dr. Brown, Dr. Brdlik, and the PCF argue that Mrs. Miller was given an award far out of line with other cases involving hysterectomy and the loss of fertility, especially since she had fertility problems in the past. However, based on the particular facts of this particular case, we must disagree.

Mrs. Miller suffered far more than simply undergoing a hysterectomy. She suffered a severe infection for thirty-two days that came close to ending her life. The extreme physical effects on her body as her uterus literally rotted inside her and the pain she endured have already been discussed above and need no further repeating.

Additionally, she could be around her child only for the first three days of his life. Thereafter, she could not be around him due to her pain, her fever, and fear of possible contagion. Due to the infection, she could not bond with her child through breast feeding, as her milk had to be pumped and discarded. She could not even hold her child until she had completely recovered from her hysterectomy, several weeks after it was performed. By the time she could start acting like a mother, her child did not recognize her and treated her as a stranger. She felt like a bad mother, became depressed, and suffered from a low libido. These problems began to strain the Millers’ marriage. These problems still remained at the time of trial, when she was still being treated with antidepressants. Both the Millers wanted additional children, and they had planned on trying as soon as they could to add to their family. And while they acknowledge their chances may have been small, those chances were completely destroyed by the negligence of the Defendants. Mr. Miller was off work | pending to her and the child for over two months, and Mrs. Miller, who had served nineteen-and-a-half years in the United States Navy, took so long to recover from her injuries that she could not return to the Navy in time to serve the remaining six months she needed to retire with a Navy pension. Based on the particular injuries suffered by these particular Plaintiffs, we cannot say that the jury abused its great discretion in making its award.

Finally, Dr. Brown and Dr. Brdlik claim that the trial court erred in approving a judgment form wherein the ten percent liability they were assessed was applied to the judgment prior to the reduction to the statutory cap, thereby rendering monetary awards against them disproportionate with their assigned fault. We agree that the trial court committed error in this regard.

Louisiana Revised Statutes 40:1299.42(B)(1) provides that “[t]he total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.48, shall not exceed five hundred thousand dollars plus interest and cost.” This $500,000.00 cap is subject to a $100,000.00 previously paid settlement credit. La. R.S. 40:1299.42(D). Louisiana Civil Code Article 2323, entitled “Comparative Fault,” provides in pertinent part:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
| iqB. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

Under the judgment selected and signed by the trial judge, the fault allocated to Dr. Brown and Dr. Brdlik was assessed against the entire, original judgment of $866,400.00, rather than against the judgment after the reduction to the statutory cap. This means that they are each liable for $86,640.00 for their ten percent fault under the judgment below. However, as the judgment was reduced to $566,400.05, including past and future medical expenses, Dr. Brown and Dr. Brdlik would end up paying far greater than their proportionate share of the damages allowed by law. Likewise, the PCF would receive a windfall of roughly $80,000.00, despite the overwhelming negligence of Dr. Biddle, in whose place it stands.

The trial court’s judgment was based on the Louisiana Supreme Court decision of Hall v. Brookshire Brothers, Ltd., 02-2404 (La.6/27/03), 848 So.2d 559, wherein the supreme court ruled that in cases involving comparative negligence assigned to the victim of medical malpractice, comparative fault was to be calculated before imposing the damages cap, so as to prevent a double reduction of damages to the victim — once by his own fault and once by the legislatively imposed cap on medical malpractice damages. However, we find this case to be distinguishable from the matter at hand, as no fault was assigned to the Millers by the jury. Accordingly, there is no risk of double reduction and the ordinary rules of comparative fault should apply among the negligent Defendants.

After reducing the damage award to the statutory cap, Dr. Brown and Dr. Brdlik would each owe ten percent of $500,000.00, or $50,000.00. The PCF, which was liable for Dr. Biddle’s negligence, would owe $300,000.00, after receiving the credit for the $100,000.00 already paid by Dr. Biddle. Additionally, Dr. Brown and InDr. Brdlik would each owe ten percent of the $66,400.05 in past and future medical expenses, or $6,640.01. The PCF would be liable for the remaining $53,120.03 in medical expenses. Accordingly, the judgment from the trial court below is amended as to the amount of damages owed by each Defendant, and judgment is hereby rendered against Dr. Brown in the amount of $56,640.01, against Dr. Brdlik in the amount of $56,640.01, and against the PCF in the amount of $353,120.03. The decision of the trial court is affirmed in all other aspects.

In accordance with the above reasons, the judgment of the trial court is hereby affirmed in part, reversed in part, and rendered. Judgment is hereby rendered in favor of the Plaintiffs as follows: against Dr. Brown in the amount of $56,640.01, against Dr. Brdlik in the amount of $56,640.01, and against the PCF in the amount of $353,120.03. All awards are made with legal interest thereon from the date of judicial demand until paid. Costs of this appeal are hereby assessed against the Defendants.

AFFIRMED AS AMENDED.

      . Because of the obvious similarity between this assignment of error and that set forth by the PCF, we shall address these assignments of error together.

      . Dr. James Brown felt that the uterus was beyond the point of being saved on January 17, 1998, while Dr. Halbridge felt that it could have been saved until January 21.


author: PAINTER, Judge.

text:
    Alois REINERS, et al. v. ST. LANDRY HOSPITAL SERVICE DISTRICT TWO d/b/a Opelousas General Hospital, et al.
    No. 2007-158.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Nicholas Gachassin, Jr., Julie Savoy, Ga-chassin Law Firm, L.L.C., Lafayette, LA, for Defendants-Appellants, St. Landry Hospital Service District Two d/b/a Opel-ousas General Hospital, et al.
    Thomas R. Shelton, Shelton Law Firm, Lafayette, LA, for Plaintiffs-Appellees, Al-ois Reiners, et al.
    Court composed of MICHAEL G. SULLIVAN, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

I,Medical malpractice Plaintiffs, Alois Reiners, Lucille G. Reiners, Wayne A. Reiners, Mark A. Reiners, Karl A. Rein-ers, Rebecca Reiners Savoie, and Carolyn Reiners Bubrig, filed a petition to enforce settlement agreement and for penalties pursuant to La.R.S. 22:1220. The trial court granted the motion, found Defendants in bad faith, and awarded penalties in the total amount of $35,000.00 (or $5,000.00 to each Plaintiff). Defendants, St. Landry Hospital Service District Two d/b/a Opelousas General Hospital, Wendy DeVillier, R.N., and A. Biba, R.N., appeal this ruling. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit originated as an action in medical malpractice filed by Plaintiffs with respect to the treatment received by Alois Reiners at Opelousas General Hospital on or about April 15, 1995 and thereafter. Trial by jury was scheduled to begin April 21, 2003. However, on April 1, 2003, Defendants extended a written settlement offer to Plaintiffs, which specified that Medicare would be a named payee on the settlement check and that Defendants would be provided with payee information including the names of all Plaintiffs and the attorney’s tax identification number. Plaintiffs responded, that same date, and accepted the offer of settlement. Additionally, Plaintiffs informed Defendants that they would be seeking excess damages from the Patients’ Compensation Fund (the PCF), that Plaintiffs’ attorney would determine the amount due Medicare through negotiations with Medicare, and that the firm’s tax identification number and Plaintiffs’ social security numbers would be provided forthwith. The trial court was notified of the settlement.

Defendants contend that seven weeks lapsed with no information from Plaintiffs. On May 20, 2003, counsel for Defendants sent a letter to Plaintiffs’ ^counsel requesting information on the status of the discussions with Medicare. Defendants contend that they received no response to this correspondence. Defendants’ counsel sent another letter to counsel for Plaintiffs on August 22, 2003, enclosing draft settlement documents. Defendants contend that several additional months lapsed with no response from counsel for Plaintiffs, and, so, on March 24, 2004, counsel for Defendants contacted Medicare and learned that no request had been made by Plaintiffs or their counsel to determine the lien. This information was communicated to Plaintiffs’ counsel, who in turn contacted Medicare on March 29, 2004, to request a determination of the lien amount. Defendants contend that they waited another year for some response and, receiving none, attempted to coordinate efforts with the PCF for a joint settlement. Defendants claim that they again had no response from Plaintiffs’ counsel. Defendants contend that another year went by with no activity relative to the settlement, and then, on March 22, 2006, counsel for Defendants was contacted by counsel for the PCF, who related that there was no Medicare lien and that Plaintiffs had rejected the PCF’s settlement offer. On April 28, 2006, draft settlement documents were again forwarded to Plaintiffs’ counsel. Defendants contend that a month elapsed before any communication from Plaintiffs’ counsel was forthcoming. Defendants contend that they still had not been provided with payee information.

Plaintiffs assert that by letter dated April 1, 2003, their counsel informed counsel for Defendants that designating Medicare as a payee on the settlement check would be unacceptable, since they anticipated a dispute as to which medical services rendered would be included in the hen. Plaintiffs further assert that Defendants accepted this counter-offer by stating that they were “prepared to make payments in this matter upon resolution of the Medicare lien by your office” in correspondence | ?,dated May 20, 2003. Furthermore, Plaintiffs contend that once Defendants were advised that there was no Medicare lien, there was nothing to prevent Defendants from issuing the settlement check. Plaintiffs point out that 1,178 days (or three years and two months) elapsed between the time of the settlement agreement and the date Plaintiffs filed the petition to enforce the settlement.

On June 26, 2006, Plaintiffs filed a petition to enforce the settlement and sought penalties under La.R.S. 22:1220. The trial court granted the motion and awarded penalties in the total amount of $35,000.00, or $5,000.00 per Plaintiff. Defendants’ motion for new trial was denied, and this appeal followed. We find no manifest error in the trial court’s finding of bad faith, and, because Defendants have not specifically appealed the amount of penalties awarded, we affirm the judgment awarding a total of $35,000.00 in penalties to Plaintiffs.

DISCUSSION

Louisiana Revised Statutes 22:1220 provides, in pertinent part, as follows:

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, Uwhichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

The determination of arbitrary and capricious behavior, or bad faith, in failing to timely pay a settlement is a factual determination which is subject to the manifest error standard of review. Aguillard v. Crowley Garment Mfg. Co., 01-594 (La.App. 3 Cir. 2/27/02), 824 So.2d 347, writs denied, 02-1348 (La.8/30/02), 823 So.2d 955, 02-1170 (La.8/30/02), 823 So.2d 956. Furthermore, proof of actual damages is not a prerequisite to the recovery of penalties under La.R.S. 22:1220, and the trial court’s grant of penalties is discretionary. Sultana Corp. v. Jewelers Mut. Ins. Co., 03-360 (La.12/3/03), 860 So.2d 1112.

Defendants contend that they were not in bad faith because: (1) Plaintiffs failed to provide the necessary payee information; (2) Plaintiffs advised that they would not accept a settlement check that included Medicare as a payee; (3) it was contrary to federal law to issue a settlement check with only Plaintiffs as payees without an assurance that the Medicare lien would be, or had been, satisfied; and (4) Plaintiffs did not notify Defendants that there was no Medicare lien until three years after the settlement agreement was reduced to writing. Accordingly, they ask us to render an opinion finding that they acted in good faith in their efforts to tender the settlement.

The trial court concluded that Defendants acted in bad faith because the settlement agreement did not state or include any specific amount that may be due Medicare and because three and one-half years had elapsed with no tender of a settlement check. We find that the trial court’s conclusions are supported by the record and, therefore, there is no manifest error. Furthermore, even though we may have awarded a lesser amount in penalties, we find that the trial court did not abuse its discretion in its award of penalties. See Rogers v. Commercial Union Ins. Co., 01-443 p. 10 (La.App. 3 Cir. 10/3/01), 796 So.2d 862, 868 (wherein this court found that we “shall” apply a $5,000.00 penalty per plaintiff when there was no proof of damages in the record for breach of the duty of good faith and fair dealing).

DECREE

For these reasons, we find no manifest error in the trial court’s finding that Defendants were arbitrary and capricious or in its award of penalties under these circumstances. Accordingly, the trial court’s judgment is affirmed in its entirety. Costs of this appeal are assessed against Defendants-Appellants.

AFFIRMED.


text:
    STATE of Louisiana, Respondent, v. Wilbert ROBERTSON, Applicant.
    No. 42,247-KH.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2007.
    Wilbert Robertson Pro Se.
    Paul J. Carmouche, District Attorney, for Respondent.
    Before BROWN, STEWART, and PEATROSS, JJ.
   |,WRIT DENIED. MOTION FOR ENFORCEMENT DENIED.

Applicant was convicted of rape and his conviction was affirmed in 1987. State v. Robertson, 511 So.2d 1237 (La.App. 2d Cir.1987), writ denied, 516 So.2d 366 (La.1988). Pursuant to La. C. Cr. P. art. 926.1, applicant petitioned for DNA testing of certain evidentiary items used to convict. On remand, the trial court has denied applicant’s motion for DNA testing.

The trial court denied relief, finding that applicant failed to show an “articulable doubt” as to his innocence that DNA testing would resolve, citing the standard set forth in State v. Conway, 01-2808 (La.04/12/02), 816 So.2d 290.

Articulable doubt, factual innocence and actual innocence.

The question presented in this writ is the threshold showing necessary to obtain DNA testing.

The DNA testing statute appears to be directed toward freeing the innocent, and not toward a reweighing of the evidence used to convict. Only in those cases will testing be permitted in which (1) [a factual explanation of why] there is an articulable doubt as to guilt and, more importantly, (2) DNA testing will “resolve the doubt and establish the innocence of the petitioner.” La. C. Cr. P. art. 926.1 B(l).

[aLa. C. Cr. P. art. 930.3 provides that: If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds:
(7) The results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted.

In applicant’s case, the evidence, as taken from the court’s opinion in State v. Robertson, supra, indicates that during the 1985 attack, the twenty year old female victim, alone in her house, was awakened by a male intruder. The victim was able to see her attacker and later identify him in both photographic and physical lineups and in open court. The police dusted the point of entry, a window opening into a back bedroom, and latent fingerprints were discovered. The prints lifted from the victim’s window positively matched the defendant’s prints. Serological evidence (seminal fluid) was found and was consistent with having come from the applicant, and not from the victim’s common-law husband with whom she had sex that day. Applicant also made statements to the police, which this court characterized as “in-culpatory.”

We also note that applicant’s challenge to the sufficiency of the evidence on appeal was to the lack of resistance, the degree of force used, and proof that the offender was armed. Proof of identity was not challenged. The present claim, that DNA testing would establish that he was not the attacker, is an “alternative and inconsistent” theory of defense to the one he offered at trial, a tactic prohibited in State v. Juluke, 98-0341(La.01/08/99), 725 So.2d 1291, as cited in State v. Conway, supra.

We find that the trial court did not err in denying DNA testing, because the testing, even if resolved in favor of the applicant, would not “establish his innocence” of the crimes for which he was convicted. The DNA testing statute is an extraordinary post-conviction remedy designed to free the innocent, and it is not an alternative form of motion for new trial based on newly discovered evidence. La. C. Cr. P. art. 851, et seq. While a favorable DNA test in this case, had it been available and presented as evidence at trial in 1987, might have been ^persuasive to a jury to establish a reasonable doubt of guilt, it does not now provide “clear and convincing evidence” of the applicant’s factual innocence of the crime, and would not provide grounds for the granting of post-conviction relief under La. C. Cr. P. art. 930.3(7). Accordingly, the writ is denied.

      . On remand, 96-1920 (La.App. 4th Cir.01/27/99), 735 So.2d 142, writ denied, 99-1419 (La.10/15/99), 748 So.2d 466.