text:
    Toby P. ARMENTOR v. SAFEWAY INSURANCE COMPANY, et al.
    No. 2007-805.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.

      Barton W. Bernard, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Toby P. Armentor.
    Keith M. Borne, Borne, Wilkes & Brady, Lafayette, LA, for Defendants/Appellees, Safeway Insurance Company, Leroy D. Batiste.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

11 Plaintiff, Toby Armentor, appeals a judgment rendered in his favor following a bench trial. Defendants, Safeway Insurance Company and Leroy Batiste, answer the appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of a rear-end collision that occurred at 1:20 p.m. on November 24, 2004, on Pinhook Road near its intersection with Bonin Road in Lafayette Parish. Armentor was seatbelted in his pickup truck and stopped at a red light when he was struck from behind by a pickup truck driven by Batiste. The force of the collision pushed Armentor’s vehicle forward eight to ten feet and into the rear of another vehicle.

Armentor filed suit against Batiste and his automobile liability insurer, Safeway, for the injuries that he sustained as a result of the accident. A bench trial was held on November 13, 2006. Although liability was not stipulated, Batiste admitted at trial that the collision occurred because he was inattentive and distracted and that Armentor had done nothing to cause or contribute to the accident. Other than Batiste and Armentor, the only other witness to testify live at trial was Father Louis Richard, a Catholic priest who was Armentor’s workout partner both before and after the subject accident. Certified copies of Armentor’s medical records and bills were submitted as exhibits, along with the depositions of his three treating physicians. Defendants submitted a copy of Batiste’s Safeway policy as an exhibit. At the close of testimony, the matter was taken under advisement.

The trial court rendered written Reasons for Judgment on December 11, 2006, awarding Armentor general damages in the amount of $80,000.00, past medical 12expenses in the amount of $13,093.50, and future medical expenses in the amount of $5,000.00. Judgment was signed on February 1, 2007, in accordance with the previously rendered reasons, in favor of Ar-mentor and against Safeway and Batiste, in solido, in the amount of $10,000.00, and in favor of Armentor and against Batiste, individually, in the amount of $38,093.50.

Armentor devolutively appealed from the judgment, assigning the following as error:

1. • The trial court erred, as a matter of law, by imposing an illegal burden of proof upon Plaintiff, i.e., that he prove his ease as “definite” as opposed to “more probable than not.”
2. The trial court erred in its award of future medical expenses to Plaintiff, as the award was based on an illegal burden of proof and was abusively low and contrary to the law and the evidence.
3. The trial court erred in its award of general damages to Plaintiff, as the award was based on an illegal burden of proof and was abusively low and contrary to the law and the evidence.

Safeway and Batiste answered Armentor’s appeal, alleging that the trial court abused its discretion in the amounts awarded to Armentor for general damages and future medical expenses in that the evidence supports much lower awards, if any.

STANDARD OF REVIEW

This court recently recited the standard of review to be applied when an appellant alleges that the trial court committed legal error by holding them to an improper burden of proof. In Lanningham v. Walton, 06-1103, pp. 2-3 (La.App. 3 Cir. 2/7/07), 950 So.2d 922, 924, we stated:

|SA trial court’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Fuselier v. State, through Dep’t of Transp. & Dev., 05-681 (La.App. 3 Cir. 1/11/06), 919 So.2d 867, writ denied, 06-334 (La.4/28/06), 927 So.2d 289. “This standard, however, is not applicable when one or more legal errors by the trial court interdicts the fact-finding process, and, when permitted by the record, the appellate court should conduct a de novo review to determine the preponderance of the evidence.” Trahan v. Deville, 05-1482, p. 2 (La.App. 3 Cir. 5/10/06), 933 So.2d 187, 190, writ denied, 06-2103 (La.11/17/06), 942 So.2d 534 (citation omitted). “Legal errors occur when trial courts prejudicially apply incorrect principles of law.” Id. “These errors are prejudicial when they materially affect the outcome of the matter.” Id. “In these cases, appellate courts are bound, if possible, to apply the correct principles of law, determine material facts, and render judgment on the record.” Id.

DISCUSSION

Burden of Proof

Armentor asserts that the trial court imposed an illegal burden of proof, requiring him to prove his case with “definite” evidence, instead of the less strict “more probably than not” standard that the law actually imposes on a plaintiff in a personal injury case. Accordingly, Ar-mentor requests that this court review this matter de novo, applying the correct burden of proof.

Armentor’s argument is based upon the following excerpt from the trial court’s Reasons for Judgment:

Neither Dr. Montgomery nor Dr. Ra-sarla stated that the Plaintiff was definitely a surgical candidate. Both stated that it would depend on whether the injections continued to improve the Plaintiffs condition. Dr. Rasarla speculated that the Plaintiff may need injections for six months or maybe forever. The doctors simply cannot make a definitive determination at this point as to Plaintiffs prognosis and it is not this Court’s job to speculate as to what the future may bring.

(Emphasis added).

Defendants vehemently disagree that the above-quoted language supports Ar-mentor’s premise that the trial court applied an incorrect burden of proof. They | ¿characterize Armentor’s argument as disingenuous and claim that it ignores the context within which the two statements were made. They contend that the statements were simply findings of fact made by the trial court, which in no way indicate that the trial court applied an incorrect burden of proof. Accordingly, Defendants submit that this court should apply the manifest error standard of review.

The Louisiana Supreme Court discussed the plaintiffs burden of proof regarding causation in the context of a personal injury lawsuit in Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759 (citations omitted):

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.

As the trial court stated in its Reasons for Judgment, “[(liability on the part of Mr. Batiste is not at issue, as he testified at trial that he was solely at fault in causing the accident. The only issue before the Court is the nature and extent of the damages sustained by Mr. Armentor.” We are convinced that the trial court applied the correct burden of proof in deciding whether Armentor’s injuries were caused by the subject accident, especially in light of the fact that liability was not contested. Moreover, the language complained of is found in the section of the Reasons for Judgment discussing future medicals. Armentor’s first assignment of error lacks merit.

| ⅛Future Medicals

Armentor submits that the trial court required him to prove his need for future medicals with “definite” evidence, rather than with the “more probably than not” standard that the law actually imposes. Pointing to the opinion of Dr. Amar-endar Kasarla, Armentor’s pain management doctor, that he will definitely need more injections in the future and that if the injections quit easing his pain, he may end up requiring surgery, Armentor argues that the trial court’s award of only $5,000.00 in future medicals is reversible error. He suggests that an award of at least $175,000.00 is warranted under the circumstances.

Defendants counter that the trial court applied the correct burden of proof and that it was correct in limiting its award of future medicals to $5,000.00. Defendants stress that Armentor’s orthopedist, Dr. Thomas Montgomery, the only physician qualified to opine whether Armentor will need surgery in the future, testified that Armentor was not a surgical candidate when he last saw him in February of 2005. Dr. Montgomery further testified that he could not render an opinion as to whether Armentor was a surgical candidate at the time of trial because he had not evaluated him in over a year and a half.

With regard to Armentor’s need for future injections, Defendants point out that Dr. Kasarla could not opine as to how far into the future Armentor would need injections from a more probable than not standpoint. Rather, Dr. Rasarla stated that “he’s gonna need ... injections and it depends, it may be six months to a year or it may be forever; infinitely. But most likely he’s going to need injections in the near future.” Defendants additionally submit that Dr. Rasarla did not testify that Ar-mentor | (¡would probably need surgery in the future, nor did he testify as to the cost of any future surgery.

In their answer to appeal, Defendants ask this court to reverse the trial court’s award of future medical expenses on the basis that Dr. Rasarla’s testimony was too speculative to support any such award.

This court discussed the burden of proof on a plaintiff seeking an award for future medical expenses in Veazey v. State Farm Mutual Auto Insurance, 587 So.2d 5, 8 (La.App. 3 Cir.1991):

Future medical expenses, like any other damages, must be established with some degree of certainty. The plaintiff must show that, more probably than not, these expenses will be incurred. Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost.

An appellate court reviews an award for future medical expenses, which are items of special damages, pursuant to the manifest error standard of review. Cormier v. Colston, 05-507 (La.App. 3 Cir. 12/30/05), 918 So.2d 541.

The “definite” language that Armentor suggests indicates that the trial court applied an incorrect burden of proof is found in the section of the Reasons for Judgment where the trial court was discussing Ar-mentor’s need for future medical expenses. This court has used similar language in reviewing a trial court’s award of future medicals to automobile accident victims. In Simmons v. Custom-Bilt Cabinet & Supply Co., 509 So.2d 663 (La.App. 3 Cir.1987), two elderly plaintiffs were injured when their vehicle was rear-ended. Following a bench trial, Mr. and Mrs. Simmons were awarded general damages of $30,000.00 and $8,000.00, respectively, along with their documented past medical expenses. In addition, Mr. Simmons was awarded $5,000.00 for future medical expenses, and Mrs. Simmons |7was awarded $1,000.00 for future medical expenses! In reversing the awards for future medicals, we found that although the evidence showed that the plaintiffs would likely continue to experience pain as a result of the effects of the accident, “[tjhere is no definite evidence as to how much medication would be required in the future, or how much it might cost.” Id. at 665 (emphasis added). Moreover, although a doctor who had examined the plaintiffs made suggestions as to medications and tests, we concluded that those suggestions “remained only possibilities, not definite enough to form the basis of an award for future medical expenses.” Id. (emphasis added). In the present case, the trial court stated the following in its Reasons for Judgment:

[I]t is this Court’s opinion that Plaintiff has failed to establish that he will need surgery or injections to the extent he has claimed in the future. While the need for extended injections has not been satisfactorily proven to this Court, the need for some limited future medicals could be possible and the Court would assess $5,000.00 for future medicals.

Our reading of the above-quoted language convinces us that the trial court applied the correct standard when evaluating Armentor’s need for future medicals. Thus, the propriety of the award will be examined under the manifest error standard. We have reviewed Armentor’s trial testimony, along with his medical records, and the depositions of his treating physicians. Given Dr. Kasarla’s opinion that Armentor will need injections in the near future, we cannot say that the trial court committed manifest error in awarding Ar-mentor an amount sufficient to cover a limited amount of future medical expenses. Armentor’s second assignment of error lacks merit. For the same reasons, Defendant’s argument that the award is too generous is likewise without merit.

Is General Damages

Armentor next asserts that the trial court erred by basing his general damage award on an illegal burden of proof, resulting in an award that was abusively low given the severity and duration of his injuries.

Armentor submits that the uncontradict-ed trial evidence showed that he was in good health and pain free before the collision, but immediately afterward he began suffering pain in his neck and back. He contends that the injuries he received resulted in his having to restrict both his hobbies and his daily activities, including the type of job that he is able to perform, and that his pain and restrictions are permanent and are increasing with the passage of time. Armentor argues that the medical evidence established that it was more probable than not that he will need injections in the future and surgery if his pain persists and the injections stop offering him relief.

Defendants again submit that the trial court applied the proper standard of review in assessing the proper amount to award Armentor in general damages. In opposition to Armentor’s arguments, they counter that Armentor’s documented medical history since the accident belies his assertion that the $30,000.00 in general damages awarded to him was abusively low. Defendants submit that although Ar-mentor was under consistent treatment from his regular doctor for approximately three months following the accident, he then sought no medical treatment for ten months, followed by another period of eleven months without treatment, with his last treatment being rendered within two months of the trial date.

Defendants refer this court to Armentor’s testimony on cross-examination wherein he admitted that the primary reason he quit his offshore employment was the stress placed on his family by his having to work twenty-four/seven and his always 19being on call. Armentor additionally admitted that, starting approximately two months after the accident, he resumed participation in his normal activities, such as bow fishing and bow hunting. Given the minimal effect on his lifestyle and the speculative testimony as to Armentor’s need for future treatment, Defendants submit that the trial court’s general damage award more than adequately compensated Armentor for his injuries. Moreover, in their answer to Armentor’s appeal, Defendants suggest that the evidence shows that Armentor’s injuries were minimal and that his general damage award should be reduced.

The appellate court’s role in reviewing a trial court’s general damages award was discussed in Fontenot v. Laperouse, 00-130, p. 7 (La.App. 3 Cir. 11/2/00), 774 So.2d 278, 283 (footnotes omitted), writs denied, 00-3268, 00-3286 (La.1/26/01), 782 So.2d 638, 1027:

It is well settled that the discretion vested in the trier of fact, when awarding general damages, is great and even vast, so that the award should rarely be disturbed on appeal. An appellate court is not to decide what it considers to be an appropriate award but to determine whether the trier of fact has abused the discretion it is afforded when awarding such damages. It is only when the appellate court determines that the trier of fact abused its vast discretion that the court should increase or reduce the award.

We have reviewed the record in its entirety. When Armentor last saw his family physician, Dr. Ben Doga, on December 18, 2004, he was of the opinion that Ar-mentor was suffering from a cervical and lumbar strain, and he referred him to Dr. Montgomery, an orthopedic surgeon, for further evaluation. Dr. Montgomery ordered cervical and lumbar MRI’s, the results of which, he opined, showed arthritic and degenerative changes that preexisted, but were rendered symptomatic by, |inArmentor’s motor vehicle accident. When he last saw Armentor in February of 2005, Dr. Montgomery’s impression was that Armentor was suffering from cervical and lumbar degenerative disc disease, and he referred him to Dr. Kasarla, a pain management doctor. Significantly, Ar-mentor did not see Dr. Kasarla until eight months after the referral. When this fact was made known to Dr. Montgomery at his deposition, he stated that he would have expected Armentor to see Dr. Kasar-la sooner based on his complaints of pain at his last visit. Dr. Kasarla gave Armentor a lumbar steroid injection in November of 2005 and instructed him return in three weeks for a follow-up visit. Armentor chose not to comply with Dr. Kasarla’s request, instead returning eleven months later, at which time he was given both lumbar and cervical injections.

The trial court was able to evaluate Ar-mentor’s credibility. While it determined that he was injured in the accident in question, it found that Armentor had not met his burden of proving that he was in need of more than limited future medicals. Given his patchy treatment history, most significantly the inconsistency of his actions as compared to his subjective complaints of pain, we cannot say that the trial court erred in making its general damage award based on a two-year cervical and lumbar strain. We are satisfied that the trial court applied the correct burden of proof and that it did not abuse its vast discretion in awarding Armentor $30,000.00 in general damages. Armentor’s third assignment is without merit as is Defendant’s claim that the general damage award to Armentor should be lowered.

InCONCLUBION

For the foregoing reason, the judgment of the trial court is affirmed in its entirety. Costs of this appeal shall be split equally among the parties.

AFFIRMED.

      . The Safeway policy issued to Batiste and in effect on the date of the subject accident had limits of $10,000.00/$20,000.00.

      . As will be discussed later in this opinion, this court has approved language similar to that complained of herein in the context of a trial court’s decision to deny or limit a plaintiff's claim for future medicals.

      . Dr. Montgomery did admit that the areas of disc protrusion in Armentor’s cervical spine could have been caused by the accident.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Peter ROMERO, et al. v. Darryl ELIAS, M.D., et al.
    No. 2007-806.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.

      John L. Hammons, Nelson & Hammons, Shreveport, LA, for Plaintiff/Appellant, Peter Romero.
    Thomas F. Porter, IV, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Peter Romero.
    Joel E. Gooch, Allen & Gooch, Lafayette, LA for Defendant/Appellee, Louisiana Patients’ Compensation Fund.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   GREMILLION, Judge.

| aThe plaintiffs, Peter and Hope Romero, individually and as the administrator of their minor daughter, Kayla Marie, appeal the judgment of the trial court ordering the dismissal of their claims against the defendant, the Louisiana Patients’ Compensation Fund (PCF), based on a finding that they had abandoned their suit. We reverse and remand.

FACTS

The Romeros instituted suit against Dr. Darryl Elias, Dr. Edward Haile, the Iberia General Hospital & Medical Center, and the Louisiana Hospital Association Trust Fund on August 20, 1996, subsequent to the birth of their daughter. In their petition, they listed numerous allegations of negligence on the part of the defendants stemming from their failure to diagnose their daughter antipartum as suffering from hydrocephalus and spina bifida. On August 10, 1998, the Romeros and Dr. Haile filed a Joint Petition for Authorization to Settle Medical Malpractice Claim in the amount of $100,000, which was granted by the trial court on December 17, 1998. In granting the judgment, the trial court denied objections to the judgment which were filed by the PCF. The trial court further ordered the Romeros to mediate the claim for excess damages with the PCF Oversight Board and continued the trial on that issue without date. The PCF filed a motion to amend the judgment on January 4,1999.

On April 14, 1999, Dr. Haile and the Romeros filed a Judgment of Dismissal with Prejudice and with Reservation of Rights dismissing their claims against Dr. Haile with prejudice, but reserving their rights to excess damages against lathe PCF. That same day, they entered into a Judgment of Dismissal for Non-Suit with prejudice and with Reservation of Rights against Dr. Elias, in which they dismissed their claims against him with prejudice, but reserved their rights to seek damages from the PCF.

On September 26, 2000, the trial court denied the PCF’s motion to amend the December 17, 1998 judgment. On July 17, 2000, the trial court set a hearing on a Motion for New Trial for August 10, 2000. Presumably this motion was filed by the PCF, however, the motion and accompanying memorandum are not located in the record. On November 30, 2000, the PCF filed a peremptory exception of no cause of action against the Romeros’ Petition for Excess Damages. We note that there is no evidence of this petition in the record. This matter was set for hearing on January 26, 2001. The Romeros filed an unopposed motion to continue that hearing on January 11, 2001, which was granted.

The next matter filed in this suit was a motion to withdraw as counsel, filed by the Romeros’ counsel on August 16, 2004. On February 18, 2005, new counsel for the Romeros was enrolled as counsel of record. On May 25, 2006, the Romeros filed a Motion for Summary Judgment on Damages and Medical Bills. On July 2, 2006, they filed an Amended and Supplemental Petition naming the PCF, the PCF Oversight Board, and Charles Foti, the Louisiana Attorney General, as defendants. In response, the PCF filed declinatory and peremptory exceptions arguing that the Romeros’ suit had been abandoned pursuant to La.Code Civ.P. art. 561. Following a hearing, the trial court granted the exception and rendered an Order of Dismissal. This appeal by the Romeros followed.

LISSUES

On appeal, the Romeros argue that the trial court erred in granting the peremptory exception of abandonment.

DISCUSSION

In claiming that the trial court erred in finding their suit abandoned, the Romeros argue that the PCF has a good faith, continuing duty to compensate them for all damages stemming from Dr. Haile’s negligence. Furthermore, they claim that no action has taken place in this matter as a result of the PCF’s bad faith and ill practices in failing to comply with the trial court’s order to mediate. As such, they argue that an affirmation of the trial court’s judgment would, in effect, reward the PCF’s bad faith behavior. In support of their argument, they point to correspondence from the PCF to their former counsel. However, as that evidence was not in the record, we may not consider it.

The PCF filed for abandonment pursuant to declinatory and peremptory exceptions. Although abandonment should properly be raised pursuant to a motion, we will address it as an exception.

In Kelty v. Brumfield, 534 So.2d 1331, 1333-34 (La.App. 4 Cir.1988), writs denied, 536 So.2d 1221, 1222 (La.1989) (alteration in original) (footnote omitted), the fourth circuit considered whether the PCF could raise a peremptory exception of prescription:

The Medical Malpractice Act does not contemplate the Fund as a party defendant. Williams v. Kushner, 449 So.2d 455 (La.1984). The Fund is a “budget unit” of the State. La.R.S. I0:1299.hU(A)(5)(g). The functions of administering the Fund are carried out by the commissioner of insurance. La. R.S. 10:1299 (A)(5)(b). The act does not give the Fund status as a co-obligor or insurer of the health care provider. It is a | r,creature of the legislature designed to satisfy settlements and/or judgments against health care providers in excess of $100,000.00. The Fund does not have to be made a party to the litigation, nor cast in judgment in order to disburse its funds. The only requirement is a final judgment or a court approved settlement, or a final arbitration award, against the health care provider in excess of one hundred thousand dollars. La.R.S. 10:1299M(B) (2) (a-c). See also, Forstall v. Hotel Dieu Hospital, 429 So.2d 213 (La.App. 4th Cir.1983), writ denied 433 So.2d 1054.
In Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676 (La.1985), the Supreme Court [sic] defined the Fund as a statutory intervenor “who has an interest in the proceedings between the claimant and the health care provider because any damages in excess of one hundred thousand dollars are payable by the Fund.” Id. at 680, 681. Our interpretation of the Act makes it clear that the only issue confronting the fund once a maximum settlement has been reached with the health care provider is the amount of damages. La.R.S. 10:1299.11(0). If the settlement is less than the maximum one hundred thousand dollars, the plaintiff must still prove liability if he seeks damages in excess of the maximum. However, where the settlement is for the maximum amount, the statute is clear that liability is admitted.
Thus the Fund is limited by the provisions of the Medical Malpractice Act, the act which created it. We are of the opinion that the legislature did not intend to give the Fund equal status as a party defendant once the health care provider settled for its maximum liability. In those instances, the legislature reserved to the Fund only the right to contest the amount of damages and nothing more. We therefore conclude, under the factual scenario of this case, that the Fund was not given the status of “creditor or other person” within the meaning of Civil Code Article 3453. It does not have the right to invoke the provisions of that article, nor does it have the right to question, for any other reason, the health care provider’s statutorily admitted liability.

In Weeks v. Louisiana Patient’s Compensation Fund, 03-469 (La.App. 3 Cir. 11/5/03), 858 So.2d 851, writ denied, 03-3317 (La.2/6/04), 865 So.2d 734, we agreed with the fourth circuit’s finding in Kelty and held that the PCF lacked standing to raise the exception of prescription against the medical malpractice plaintiffs after the health care provider settled for its maximum liability.

[fiIn McGrath v. Excel Home Care, Inc., 01-1270, 01-1271 (La.App. 5 Cir. 3/26/02), 810 So.2d 1283, writ denied, 02-1344 (La.11/27/02), 831 So.2d 284, the fifth circuit also held that the PCF lacked standing to raise an exception of prescription, but went further to hold that it lacked standing to raise any exceptions in a medical malpractice suit after the limitation of liability was satisfied. The fifth circuit stated:

The Louisiana Supreme Court has not yet addressed the issue of whether the settlement precludes the PFC [sic] from raising exceptions. However, the Fourth Circuit has held that, once the insurer has paid its policy limits, statutory liability is admitted and the Fund has no standing to raise the issue of prescription. Miller v. Southern Baptist Hosp., 00-1352 (La.App. 4th Cir.11/21/01), 806 So.2d 10; Rey v. St. Paul Fire and Marine Ins. Co., 95-0661 (La.App. 4th Cir.11/16/95), 665 So.2d 109, 111, writ denied, 95-3033 (La.3/22/96), 669 So.2d 1223. “Rather, it is for the Legislature to determine whether additional rights should be given the Fund in order to provide it with greater protection against questionable claims.” Rey, 665 So.2d at 111. Conversely, if the settlement is for less than the $100,000 limit of liability, the PFC [sic] has standing to raise the exception of prescription. See: St. Romain v. Luker, 00-1366, (La.App. 1st Cir.11/9/01), 804, So.2d 85.
We agree with the Fourth Circuit decisions in Rey and Miller, and find that the PFC [sic] does not have the right to raise the exception of prescription, and further is not entitled to .raise any exceptions after the limitation of liability has been satisfied. The statutes and jurisprudence are clear that such payment is an admission of liability. The PCF does not stand in the shoes of the Defendant. It is a creature of the legislature created solely to pay the excess damages to an injured plaintiff who can prove that his' excess damages were caused by the health care provider’s malpractice. To allow it to raise exceptions after the payment would be to permit it to raise defenses only given to a Defendant, which it is not. See: McCrory [v. Jefferson Parish Hosp. Serv. Dist. No. 2, 96-624 (La.App. 5 Cir. 12/30/96) ], 686 So.2d [1060,] 1064. Thus, we find that the PCF cannot raise the exceptions at this time.

Id. at 1288 (alterations in original) (footnote omitted).

We agree with the fifth circuit that the PCF lacks standing to raise any exceptions once the liability of the health care provider is admitted to the fullest |7extent. Notwithstanding this finding, in the interest of justice, we will now address whether the trial court was correct in finding that the Romeros’ action has been abandoned because it is conceivable that the PCF will now file its action as a motion.

As legislation which is in derogation of the rights available to tort victims under the general tort law, the Medical Malpractice Act must be strictly construed. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210. “Moreover, because the cap on damages imposed by [the Medical Malpractice Act] harshly impacts the most severely injured victims, mitigating benefits or advantages provided for them by the [law] must be liberally construed....” Id. at 1216.

Pursuant to La.R.S. 40:1299.44(C)(5)(e), a settlement containing an admission of liability operates as “a declaration or promise that the PCF will pay any damages proven to be owed by the health care provider and gives the medical malpractice victim the right to expect or claim payment for damages proven to be owed by the health care provider.” Weeks, 858 So.2d at 854.

Louisiana Revised Statute 40:1299.44(C) provides the procedural steps a plaintiff must take if a settlement is reached with a health care provider and the plaintiff alleges damages exceeding the statutory cap of $100,000 owed by the health care provider. These steps include filing a petition against the health care provider, serving the petition on the PCF, the health care provider, and his insurer informing them of the additional amount demanded, allowing the PCF to file any objections to the petition, and a hearing on the petition in the trial court. La.R.S. 40:1299.44(C)(1), (2), (3), and (4). At the hearing on the petition, if the parties cannot agree as to the amount to be paid by the PCF, then a subsequent trial is required so that evidence |smay be presented and a determination reached by either a jury or the trial court as to the amount of excess damages owed to the patient. La.R.S. 40:1299.44(C)(5)(a). However, La.R.S. 40:1299.44(0 does not provide a time limit within which the plaintiff must comply with these procedures.

In Horil v. Scheinborn, 95-0967 (La.11/27/97), 663 So.2d 697, the supreme court held that the detailed provisions of La.R.S. 40:1299.44(0 trumped the more general provisions of La.R.S. 40:1299.42(D) in situations where a plaintiff has settled with a health care provider and seeks additional recovery from the PCF. In holding that La.R.S. 40:1299.44(0 applied, the supreme court affirmed an exception of no cause of action because the plaintiff failed to comply with the procedures set forth therein at the time he sought court approval of his settlement with the health care provider. Instead, the plaintiff waited almost seven years after settling before instituting proceedings against the PCF. The supreme court stated:

While it is true that the claimant and the health care provider (or his insurer) will normally agree on the terms of the compromise prior to the Fund’s involvement, when the settlement is submitted to the court for approval, the Fund must at that time be afforded notice and the opportunity to participate, if the claimant expects to seek excess sums. Here, despite, in October 1985, expressly reserving his right to proceed against the Fund specifically under portions of La. R.S. 40:1299.44(C), Horil’s glaring noncompliance with the procedures enunciated within that subsection precludes the instant claim.

Id. at 701(alteration in original) (footnote omitted). The supreme court stated that it was also persuaded by the PCF’s argument for the need for fiscal stability. It stated, “To protect its solvency, the Fund must possess accurate information concerning the amount and number of claims it may be called upon to pay in any given period.” Id. In his concurring opinion, Chief Justice Calogero expressed reservations with the 19majority’s ideas:

First, I have a problem with the majority’s concern for “fiscal stability within the Fund.” The state does not appropriate money for the Fund. If the fund becomes insolvent, the state is not responsible for the Fund’s obligations. Instead the claimants suffer the loss or delay in receipt of payment.
Second, I am not willing to state that a claimant’s failure to strictly adhere to the rules set forth in R.S. 40:1299.44(0) automatically costs him his right to pursue the Fund. I would leave for another day the case in which a claimant’s tardiness in acting spans a very brief period as opposed to seven years as in this case.

Id. at 702.

In the more recent case of Demo v. Akkaraju, 03-142 (La.App. 3 Cir. 10/1/03), 856 So.2d 155, writ denied, 03-3020 (La.2/6/04), 865 So.2d 742, we refused to hold that a plaintiff, who settles with a health care provider, had ninety days in which to seek court approval of that settlement, in compliance with La.R.S. 40:1299.47. In that instance, the plaintiff settled with the health care provider, but waited over eleven months before seeking court authority for approval of the settlement.

In the case at hand, the Romeros followed the procedures set out in La.R.S. 40:1299.44(0). They filed a petition seeking authority from the trial court to settle their claim against Dr. Haile. Notice of the petition was served on the PCF, who then made numerous objections to the settlement. These objections were denied by the trial court. The trial court entered judgment in this matter on December 17, 1998, authorizing the joint petition to settle the Romeros’ medical malpractice claim against Dr. Haile in the amount of $100,000, and reserving their rights to proceed against the PCF for damages up to $400,000. A Judgment of Dismissal With | inPrejudice and Reservation of Rights was rendered on April 14, 1999, dismissing the Romeros’ claims against Dr. Haile. The judgment further acknowledged that the Romeros and the PCF had agreed to mediate the claim for excess damages.

Louisiana Revised Statute 40:1299.44(C)(5)(a) provides no time limit in which the claim for excess damages must be litigated. It merely provides that if the parties cannot agree on the amount to be paid by the PCF, then:

[T]he trier of fact shall determine at a subsequent trial which shall take place only after the board shall have been given an adequate opportunity to conduct discovery, identify and retain expert witnesses, and prepare a defense, the amount of claimant’s damages, if any, in excess of the amount already paid by the insurer of the health care provider.

La.R.S. 40:1299.44(C)(5)(a).

Although nothing occurred of record from November 30, 2000, until May 25, 2006, when the Romeros’ current counsel filed a motion for summary judgment, we find that this case differs from Horil, in that the Romeros did follow the procedures set out in La.R.S. 40:1299.44(C). Strictly construed, we find that La.R.S. 40:1299.44(C), does not specify the time in which the Romero should have pursued their claim against the PCF to its conclusion. We note that they obtained a judgment reserving their rights against the PCF. We again note that a judgment prescribes in ten years. La.Code Civ.P. art. 2031. While we do not specifically address the ten-year prescriptive period as it relates to the Medical Malpractice Act, we do note that the time limit had not run when the Romeros attempted to enforce their judgment. They followed the procedures set out in Section 1299.44(C), up to receiving a determination on their excess damage claim. The PCF was put on notice that this claim was filed and could have taken any necessary steps to protect itself financially j -i ^ concerning the potential amount of this claim. Accordingly, we find that the trial court erred in finding that the Romeros’ claim had been abandoned.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed, and the matter is remanded for further proceedings. Pursuant to La.R.S. 13:5112, the costs of this appeal are assessed to the Louisiana Patients’ Compensation Fund in the amount of $9,591.66.

REVERSED AND REMANDED.


author: SULLIVAN, Judge.

text:
    Honorable Wilford D. CARTER v. HONORABLE JUDGES, DIVISIONS A-E, G, & I OF 14TH JUDICIAL DISTRICT.
    No. 2007-823.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.
    Rudie R. Soileau, Jr., Attorney at Law, Lake Charles, Louisiana, for Plaintiff/Appellant, Honorable Wilford D. Carter.
    Rick J. Norman, Lake Charles, Louisiana, for Defendants/Appellees, 14th Judicial District Honorable Judges, Divisions A-E, G, & I.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

|, Judge Wilford D. Carter of the Fourteenth Judicial District Court (Court) appeals the trial court’s denial of his request for a judgment declaring that attorney fees for which he seeks payment were incurred by him in his official capacity as judge and ordering the judges of the Court to pay those attorney fees from the Court’s judicial expense fund. For the following reasons, we affirm.

Facts and Procedural History

Judge Carter’s claims stem from a criminal proceeding and from a civil proceeding. The facts surrounding his claims which arise from the criminal proceeding were set forth in detail by another panel of this court in State v. Balka, 05-1296 (La.App. 3 Cir. 3/6/06), 925 So.2d 679. Briefly, as the result of a subpoena which was issued by the District Attorney to compel Judge Carter’s appearance in that criminal proceeding, Judge Carter sought damages in the form of attorney fees and costs and sought to have the District Attorney and two of his assistants held in direct contempt of court.

The panel in Balka determined that Judge Carter’s claims for damages in the form of attorney fees and costs with respect to the subpoena were only recoverable by him personally and not in his official capacity as judge. However, the panel also held that the contempt proceeding was “brought by Judge Carter in his official capacity as judge.” Id. at 682.

Judge Carter initiated the civil proceeding on January 26, 2006, when he ordered the clerk of court to assign one-ninth of the Court’s domestic and juvenile matters to his division. Pursuant to La.R.S. 13:587 and Local Rule 23.0(A), Rules for Louisiana District Courts, Fourteenth Judicial District Court, all domestic and | juvenile matters are allotted to two of the Court’s nine judges. In response, seven of the Court’s nine judges issued an order to the clerk of court, instructing him to disregard Judge Carter’s order “and maintain the allotment system for cases to the Family and Juvenile Divisions.” Judge Carter filed a writ application with this court which was denied, Carter v. Jones, an unpublished writ opinion bearing docket number 06-207 (La.App. 3 Cir. 3/3/06).

Judge Carter then converted the pending action to an ordinary action for declaratory and incidental relief and named the clerk of court, the Court, through its duly elected Judges in their official capacities, and the State of Louisiana, through the Attorney General, as defendants. He sought a judgment declaring the Court’s procedure of assigning juvenile and family matters to two of the Court’s nine judges, as provided in La.R.S. 13:587, unconstitutional. He also asserted a claim for attorney fees.

Pursuant to an order of the supreme court, the matter was tried before the Honorable Anne Lennan Simon, Judge Ad Hoc, on December 7, 2006. Judge Simon concluded that La.R.S. 13:587 is “not prohibited by La. Constitution Art. V, Sec. 16” and dismissed Judge Carter’s claims with prejudice at his cost. Judge Carter appealed the judgment; this court affirmed. Carter v. Jones, 07-297 (La.App. 3 Cir. 10/17/07), 967 So.2d 615.

On October 24, 2006, Judge Carter filed the instant matter, seeking:

| si. A declaratory judgment declaring that the fees charged by his attorneys “were lawfully incurred for the operation and protection of the Court, Division ‘F’ ” and an order ordering that the fees be paid out of the Court’s funds;
2. Alternatively, a writ of mandamus directing the judges of the Court to pay his attorney fees;
3. A temporary restraining order restraining the judges of the Court from “disbursing any funds for the payment of legal fees out of Court funds or any other public funds until further orders of the Court”; and
4. Attorney fees and costs.

Defendants filed exceptions of res judi-cata/collateral estoppel and no cause/no right of action/lack of procedural capacity. The supreme court appointed the Honorable Ted R. Broyles, Judge Ad Hoc, to preside over the matter. After a hearing on the exceptions, Judge Broyles assigned oral reasons, granting the exceptions of no cause of action/no right of action and res judicata/collateral estoppel. Judge Broyles concluded that Judge Carter is not entitled to recover attorney fees because La.R.S. 13:5108.1, which provides for the indemnification of public officials for their actions, contemplates that the public official seeking indemnification was sued, not filing suit, and because he did not prevail in the proceedings for which he seeks attorney fees.

Judge Carter assigns three errors in this appeal:

1.The trial court erred in sustaining a peremptory exception of no cause of action and thereby holding that, as a matter of law, no remedy is available to a state trial judge to challenge a denial of funding for the division to which the | petitioning judge is elected, even where that denial of funding is alleged to be arbitrary and punitive, and supported only by a majority vote.
2. The trial court erred in sustaining a peremptory exception of no right of action and thereby holding that, as a matter of law, a state district court judge possesses no right of action to bring the action for review of a denial of funding for the division to which the judge is elected.
3. The trial court erred in sustaining a peremptory exception of res judicata thereby holding that, as a matter of law, an action for judicial review of a denial of funding is barred by prior actions brought by that judge to defend or exercise the jurisdiction assigned to the division to which the judge is elected to serve.

Discussion

Judge Carter seeks reimbursement for attorney fees he incurred in the Balka criminal proceedings, the allotment of civil domestic matters proceeding, and this proceeding. He urges that the trial court’s denial of his claims for attorney fees impairs the function of his office and that his claim is a cause of action separate from the three actions for which he seeks attorney fees. He contends that there is a common thread to all three actions: “an effort to defend and exercise the jurisdiction granted [his division]” and that he “initiated this proceeding to challenge a denial of requested funding for Division F.” He claims that the denial of his request for the payment of attorney fees by the other judges of the Court is “arbitrary and punitive” because they paid attorney fees they incurred in conjunction with this matter from the judicial expense fund.

The Court’s judicial expense fund was established by La.R.S. 13:996.9. Disbursements from the judicial expense fund are governed by La.R.S. 13:996.10(A) (emphasis added), which provides in part:

I.Jn general, the judicial expense fund is established and may be used for any purpose or purposes connected with, incidental to or related to the proper administration or function of the said court or the offices of the individual judges and is in addition to any and all other funds, salaries, expenses, or other monies that are not or hereafter provided, authorized, or established by law for any of the aforesaid purposes.

For the following reasons, we affirm the judgment of the trial court.

Mandamus

Judge Carter initiated this proceeding by filing a Petition for Writ of Mandamus and Rule to Show Cause and Declaratory Judgment. He seeks a writ of mandamus ordering Defendants to pay his attorney fees. A writ of mandamus directs a public officer or a corporation or an officer thereof to perform duties specified in La.Code Civ.P. arts. 3863 and 3864. La.Code Civ.P. art. 3861. A mandamus provides extraordinary relief, as it may only be issued “where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice.” La.Code Civ.P. art. 3862. Article 3863 provides that “[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law.”

Judge Carter’s request that a writ of mandamus issue is misplaced. Louisiana courts have routinely held that a writ of mandamus should issue only in situations “where the actions sought to be performed ... are purely ministerial in nature.” See Hoag v. State, 04-857, p. 6 (La. 12/1/04), 889 So.2d 1019, 1023. “A ministerial duty ... is one in which nothing is left to discretion.” Id. The plaintiffs in Hoag were awarded a judgment against the state and sought the issuance of a mandamus to the legislature to appropriate funds to satisfy their judgment. The supreme court explained that plaintiffs’ request was inappropriate because a mandamus can issue only when “the public official to whom the writ is directed may exercise no element [fiof discretion when complying.” Id. at 1024. The- court defined ministerial duty as “a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.” Id.

Pursuant to La.R.S. 13:996.10, the payment of expenses of the Court and/or the judges is permissive, as it provides that the judicial expense fund “may be used for any purpose or purposes connected with, incidental to or related to the proper administration or function of the said court or the offices of the individual judges.” Therefore, Defendants do not have a legally-imposed duty to pay Judge Carter’s attorney fees, and Judge Carter is not entitled to mandamus relief. Hoag, 889 So.2d 1019.

Disposition

The judgment of the trial court is affirmed, as the issuance of a writ of mandamus is inappropriate under the facts presented herein.

AFFIRMED.

      . Louisiana Revised Statute 13:587(A) provides:
      The judges of the Fourteenth Judicial District Court may, by rule adopted by a majority vote of the judges sitting en banc, designate
      and assign to one or more divisions of the court any or all types of juvenile matters of which the court has jurisdiction and any or all types of domestic relations matters of which the court has jurisdiction.

      . Louisiana Revised Statute 13:5108.1(A) provides in pertinent part:
      (1) The state shall defend and indemnify a covered individual against any claim, demand, suit, complaint or petition seeking damages filed in any court over alleged negligence or other act by the individual, including any demand under any federal statute when the act that forms the basis of the cause of action took place while the individual was engaged in the performance of the duties of the individual’s office or employment with the state.


author: COOKS, Judge. AMY, J.,

text:
    Woodrow WILSON, et al. v. The TOWN OF MAMOU, et al.
    No. 2007-409.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.

      Jonathan C. Vidrine, Ville Platte, LA, for Plaintiffs Woodrow Wilson, et al.
    Lisa E. Mayer, John F. Wilkes, Joy C. Rabalais, Dayna M. Edwards, Lana Du-hon, Lafayette, LA, for Defendants Town of Mamou and Chief Herman Celestine, in his official capacity as Chief of Police of the Town of Mamou.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

I STATEMENT OF THE CASE

The Town of Mamou and the Chief of Police, Herman Celestine, appeal the judgment of the trial court finding the Town liable for damages for the death of Yvette Michelle Wilson. The plaintiffs appeal asking for an increase in wrongful death damages and survival damages. We affirm the judgment of the trial court on liability but find the trial court erred in failing to assign any percentage of fault to the perpetrator of the murder, Harry Richard, Jr. Accordingly, we amend the judgment of the trial court to reflect Richard is 50% at fault in the death of Ms. Wilson and increase the wrongful death damages to $150,000 for each of the four children. We also award $50,000 for survival damages.

STATEMENT OF THE FACTS

This case arises out of a murder/suicide which occurred in the small town of Mam-ou, Louisiana. On December 10, 2003 at approximately 12:50 p.m. Conray Frank heard screams coming from his neighbor’s home. He ran over to lend assistance and found Yvette Michelle Wilson on the ground in the yard holding her new baby. She was badly beaten, bruised and bleeding from cuts on her face. Mr. Frank learned the perpetrator was her boyfriend, and the father of her four children, Harry Richard, Jr. Mr. Frank immediately called the police and Richard fled the scene. Lt. Charles “Tiny” Israel of the Mamou police department responded to the call. When Lt. Israel arrived, he saw Ms. Wilson was bruised and bleeding. He testified he proceeded with caution because he “was worried that maybe the boyfriend was still there.” Lt. Israel asked Mr. Frank to take Ms. Wilson to the police station while he “made the block” to look for Richard. Unable to locate Richard, he returned to the police station to fill out the paperwork and take pictures of Ms. Wilson’s | ¡.battered condition. Lt. Israel clearly assessed the seriousness of the threat to Ms. Wilson and recognized his responsibility to protect her. He testified Ms. Wilson communicated to him that she believed Richard was dangerous and she wanted him arrested and kept in jail because she feared for her life. Lt. Israel testified:

It’s because she was so scared to death that that man was gonna walk in to the police station and kill her, and I kept her in my office and I said you have to [press charges], and then it’s my duty as a police officer to see when someone’s brutalized like she was to take the appropriate action and put a warrant out on him.

Lt. Israel testified the police department was shorthanded at the time of the incident. However, the record reflects there were several other officers on duty and in the police station at the time of the incident but Lt. Israel did not communicate any urgency in apprehending Richard. Both Detective Todd Otis and Chief of Police Herman Celestine testified they would have assisted Lt. Israel in locating Richard or escorting Ms. Wilson to safety if they had been asked. After filling out the required forms, Lt. Israel called Faith House in Lafayette to secure placement for Ms. Wilson and her four children. Although, Lt. Israel testified Ms. Wilson was not interested in going to Faith House, this assertion was flatly refuted by Jackie Anderson of Faith House, who testified Ms. Wilson was scared and wanted shelter from Richard. Ms. Anderson stated Ms. Wilson was concerned for the welfare of her children and intended to go to Faith House, that day, as soon as she was able to pick her children up from school. Ms. Anderson testified based on her conversation with Ms. Wilson, Faith House began making arrangements for her arrival.

Ms. Wilson then called her mother, Laura, to come down to the police station. Ms. Wilson remained at the police station until approximately 3:00 p.m. She left with her mother, and without police protection, to gather her children from school and to begin preparations to flee to Faith House. Lt. Israel chose not to accompany hereto her mother’s house but instead sent Patrolman AI Moore to secure a warrant from the duty judge for Richard’s arrest. Two hours later at approximately 5:00 p.m., while Officer Moore was busy getting a warrant, and Lt. Israel was going off duty, Richard appeared at Ms. Wilson’s mother’s house, brandishing a gun. There was pandemonium in the house as other family members tried in vain to protect Ms. Wilson, and her children. Richard stormed through the house and found Ms. Wilson in the hall. He shot twice and missed. He chased her outside into the yard, and shot her in the back. Ms. Wilson died shortly thereafter. After killing Ms. Wilson, Richard turned the gun on himself.

Woodrow and Laura Wilson filed a ■wrongful death and survival action on behalf of their daughter, Yvette Michelle Wilson, and her four children against the Town of Mamou and Herman Celestine, in his official capacity as Chief of Police. The petition alleged the police officers of the Town of Mamou breached their duty in failing to detain and arrest Harry Richard, Jr. knowing he was a danger to Ms. Wilson, failing to escort her to safety pending the arrest of Richard, failing to adopt proper police procedures and failing to properly train police officers regarding their duty to protect victims of domestic violence. Following a bench trial, the trial court found the police officers negligent and awarded $60,000 in damages to each of Ms. Wilson’s four children and $5,465.80 for funeral expenses.

LAW AND DISCUSSION

Immunity of the Town of Mamou

We find no merit in the Town of Mamou’s assertion that it is immune from the imposition of liability due to either La.R.S. 46:2142 or La.R.S. 9:2798.1. The former statute provides that: “Any law enforcement officer reporting in good faith, exercising due care in the making of an arrest or providing assistance pursuant to the provisions |4of R.S. 46:2140 and 2141 shall have immunity from any civil liability that otherwise might be incurred or imposed because of the report, arrest, or assistance provided.” La.R.S. 46:2142. However, in this case, liability does not stem from the report, arrest or assistance provided. Rather, it is related to the failure to assist. Neither is La.R.S. 9:2798.1(B) applicable in this situation as the statute provides: “Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.” (Emphasis added.) Louisiana Revised Statutes 46:2140 is a legislative mandate and, thus, its requirements on the part of the officer are neither poli-cymaking nor within his or her discretion. Accordingly, we find the immunity statutes inapplicable.

Standard of Review

A trial court’s findings of fact may not be reversed absent manifest error or unless it is clearly wrong. Stobart v. State of Louisiana, through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). When reviewing the trial court’s findings of fact, the appellate court must review the entire record to determine whether the trial court’s conclusion was a reasonable one. Id. If the trial court’s findings are “reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as a trier of fact, it would have weighed the evidence differently.” Id. at 882. We have reviewed the record and find the testimony amply supports the decision of the trial court finding liability on the part of the Town of Mamou in the death of Ms. Wilson.

Liability of the Town of Mamou

The liability of the Town of Mamou is analyzed under the duty-risk theory of recovery. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. Under the duty-{risks analysis, the plaintiff must prove the conduct in question was a cause-in-fact of the harm, the defendant owed a duty to the victim, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Hardy, 744 So.2d 606; Berry v. State, through Dep’t of Health and Human Res., 93-2748 (La.5/23/94), 637 So.2d 412. Whether a duty is owed to the plaintiff is a question of law. Stroik v. Ponseti 96-2897 (La.9/9/97), 699 So.2d 1072, citing Faueheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289 (La.1993); Hardy, 744 So.2d 606.

The duty of a police officer in a domestic abuse situation is found in Louisiana Revised Statutes 46:2140. When a police officer has reason to believe a family member, household member or dating partner has been abused, the officer “shall immediately use all reasonable means to prevent further abuse[.]” La.R.S. 46:2140(A) (emphasis added). Reasonable means include: (1) arresting the perpetrator, in the case of a felony, with or without a warrant; (2) assisting the victim in obtaining medical treatment necessitated by the battery; (3) arranging for, or providing, or assisting in the procurement of transportation for the abused person to a place of shelter or safety; and, (4) notifying the abused person of his right to initiate criminal or civil proceedings, the availability of a protective order, and the availability of community assistance for domestic violence victims. La.R.S. 46:2140(A). This provision is part of the Protection from Family Violence Act and was prompted by the growing problem of domestic abuse in Louisiana. The Act authorizes the Department of Health and Human Resources to establish programs for the development of community based shelters for victims of family violence and provides funding for those programs. Louisiana Revised Statutes 46:2131 provides]^ “civil remedy” for the victims of domestic abuse. The legislature recognized law enforcement agencies were often not as aggressive in the enforcement of criminal laws when the battery occurred within the home. By providing a civil remedy, the legislature signaled a desire for a definite change in the policies and procedures of the police departments in the handling of abuse situations and a more aggressive prosecution of the perpetrators of domestic violence. Louisiana Revised Statutes 46:2131 provides, in relevant part:

The purpose of this Part is to recognize and address the complex legal and social problems created by domestic violence. The legislature finds that existing laws which regulate the dissolution of marriage do not adequately address problems of protecting and assisting the victims of domestic abuse. The legislature further finds that previous societal attitudes have been reflected in the policies and practices of law enforcement agencies and prosecutors which have resulted in different treatment of crimes occurring between family or household members and those occurring between strangers. It is the intent of the legislature to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection. Furthermore, it is the intent of the legislature that the official response of law enforcement 17agencies to eases of domestic violence shall stress the enforcement of laws to protect the victim and communicate the attitude that violent behavior is not excused or tolerated.

The issue presented is whether, considering the totality of the circumstances, without the benefit of hindsight, the police officers took reasonable measures to protect Ms. Wilson from harm. “Officers are held to choosing a course of action which is reasonable under the circumstances.” Latiolais v. Guillory, 99-815, p. 8 (La.App. 3 Cir. 11/3/99), 747 So.2d 675, 680, quoting, Hardy, 744 So.2d 606. This court in La tiolais addressed the liability of the sheriffs department for the death of a mother and her son at the hands of the estranged husband. In Latiolais, the deputy sheriff was called to the bus/camper of the victim to assist in removing the former spouse from the premises. The deputy found the couple in their undergarments in the camper. When asked to leave, the estranged husband was upset that the sheriffs department had been called but calmed down, got in his truck and drove off. The deputy then assisted the victim and her children with moving her clothes from the camper to her vehicle. He advised the victim to drive around while he informed her mother she would be staying with her that night. While the deputy was on the porch talking to the victim’s mother, he heard shots and glass breaking. The deputy discovered the former husband had returned and shot the victim and her son in the vehicle. This court found the circumstances surrounding the incident did not alert the deputy that there was an “impending danger” to the victim. When called to the scene the deputy did not observe a fight or altercation. The perpetrator did not act in a violent way toward the deputy or the victim. The deputy had effectuated the removal of the former husband and was assisting the victim and her children to her vehicle.

The facts in the present case are distinguishable from the facts in Latiolais. laLt. Israel was fully aware of the intensity of the situation based on the severity of the beating and Ms. Wilson’s fear for her life. He immediately perceived Richard was a dangerous man and proceeded with caution, noting: “I was worried that maybe the boyfriend was still there.” Lt. Israel also recognized his duty was twofold: to protect the victim and apprehend the abuser. He testified:

It’s because she was so scared to death that that man was gonna walk in to the police station and kill her, and I kept her in my office and I said you have to [press charges], and then it’s my duty as a police officer to see when someone’s brutalized like she was to take the appropriate action and put a warrant out on him.

Although Lt. Israel recognized his responsibility, he made only a cursory attempt to locate Richard, did not ask for assistance in apprehending Richard, and allowed Ms. Wilson to leave the police station unescorted to gather her children and pack her belongings before going to Faith House. This he did despite the fact that he testified that Ms. Wilson was “[v]ery bloody, beat up, brutalized and, you know, in bad condition” and “she could barely move.” He further confirmed Ms. Wilson had been “beat so badly, she was purely exhausted. Her emotional state was in an — -just like in limbo. I mean — I mean, I don’t think she could make — she could make a decision — you know, a good decision because she had been beat up so badly.”

Chief of Police Herman Celestine acknowledged the Mamou police department has no policies or procedures for the handling of domestic violence cases. He admitted this was a failure on the part of the department: “We should have one, it should have been in the handbook.” Chief Celestine testified it is customary in these types of situations for the police to escort the victim back to the house to pack clothes and prepare to leave. When asked why Lt. Israel did not escort Ms. Wilson to her mother’s home, he stated:

19Well I think he should of, but I mean he was getting off, the other officer was coming on, he was getting off and he went to look for Harry Richard, probably if he could have find him before he gets back to her.

Chief Celestine stated he would have secured assistance in apprehending Richard while Ms. Wilson was in the protection of the police station. The plaintiff offered the testimony of Detective Todd Otis. Detective Otis testified he was in the station at the time Ms. Wilson came in and would have assisted Lt. Israel if asked. He also testified since this incident, under the new chief of police, the department implemented a new policy which requires the police officers to protect the victim until the perpetrator is arrested.

The plaintiff also offered the testimony of Officer A1 Moore. He was asked by Lt. Israel to obtain a warrant for Richard’s arrest. He testified:

I came back to the police department and when I walked into the office I said to Mr. Israel I have the warrants signed and at the same time that’s when the dispatcher came on that there had been a shooting at 817 9th Street.

The plaintiff offered the testimony of Dr. Wade Schindler, an expert in police procedure. Dr. Schindler is a professor of Criminal Justice and Criminology at Tulane University and president of Orleans Regional Security Institute, a consulting firm. Dr. Schindler opined the Town of Mamou was negligent for failure to adequately supervise, train and implement policies and procedures for the safety of the people of Mamou. Dr. Schindler testified Lt. Israel should not have allowed a neighbor to transport Ms. Wilson to the station and should not have allowed Ms. Wilson to leave without police protection until Richard was apprehended. Even the defendant’s expert witness, Dr. Larry Gould, from the East Baton Rouge Parish Sheriffs office, acknowledged Lt. Israel was “not active” in procuring transportation for Ms. Wilson and ensuring her safety. Dr. Gould testified:

LnWhat I can say is the longer the police have her in their protection the longer that she’s in the protection of somebody else, the less likelihood statistically, I don’t know about her specific case, statistically the likelihood of an additional assault goes down, that’s what the studies say.

In this case, the murder occurred within hours of the initial call to the police. It is within this critical time period, when passions have not cooled, that the likelihood of additional harm to the victim increases. Given the severity of the beating, and the fear of Ms. Wilson, it was foreseeable that Richard posed “an impending danger” to Ms. Wilson and Lt. Israel should have implemented measures to ensure her safety until Richard was apprehended. While the Mamou police department has no policies or procedures for the handling of these cases, Chief Celestine testified customarily the police escort the victim to her home to retrieve her clothes or to a place of safety. That was not done in this case. Lt. Israel allowed Ms. Wilson to leave the station unescorted while Richard was still at large. Moreover, we do not find Lt. Israel was aggressive in his search for Richard. He did not enlist the assistance of the officers on duty at the station at the time of the incident. Instead he made what the trial court described as only a “token effort to locate Harry Richard, Jr.”

Lt. Israel was not an inexperienced officer. He has worked in law enforcement for twenty-eight years and has routinely handled domestic abuse cases. However, the “business as usual” way of handling these cases is what the legislature is seeking to change. “Societal attitudes” which minimize the significance of ^violence in the home “have been reflected in the policies and practices of law enforcement agencies ... it is the intent of the legislature that the official response of law enforcement agencies to eases of domestic violence shall stress the enforcement of laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated.” La.R.S. 46:2131. Police officers cannot always guarantee the safety of the victim, but they must take all reasonable measures under the circumstances to offer protection to the victim until the aggressor is apprehended or the officer is reasonably certain the situation is no longer dangerous. Under the circumstances presented in this case, we find Lt. Israel and the Mamou police department should have taken reasonable measures to escort Ms. Wilson to a place of safety until Richard was apprehended. Accordingly, we affirm the decision of the trial court finding liability on the part of the Town of Mamou.

The defendants assert the negligence of Ms. Wilson, Ms. Wilson’s family and the intentional actions of Harry Richard as contributing factors in Ms. Wilson’s death. We do not find Ms. Wilson was negligent in leaving the police station with her mother. The testimony by Ms. Anderson of Faith House and Laura Wilson, her mother, establish without a doubt that Ms. Wilson knew Richard was violent and it is reasonable to conclude she was afraid he may harm her children. Ms. Wilson’s desire to gather her small children and take them with her to Faith House was not unreasonable under the circumstances. By leaving the station, she was doing the one thing every mother would do — protect and care for her children. The fact that Richard murdered Ms. Wilson in the presence of her family and then committed suicide demonstrates his instability and confirms that Ms. Wilson’s fears were not unreasonable. Moreover, we note Lt. Israel was fully aware that Ms. Wilson was in |iano condition to make “a good decision because she had been beat up so badly.” We specifically reject the assertion that Ms. Wilson’s family could have prevented the tragedy which occurred. Ms. Wilson was taken to her mother’s home as a temporary shelter to gather her children before leaving for Faith House. When Richard arrived he was brandishing a gun and began shooting in the house. Ms. Wilson had just come from the police station. It was the police department’s responsibility, not the family’s, to protect Ms. Wilson. We find no merit in this argument. However, we find the trial court erred in failing to assign fault to Richard in causing the death of Ms. Wilson. While the police officers did not take reasonable measures to protect Ms. Wilson, that action alone would not have resulted in the death of Ms. Wilson without Richard’s participation. See, e.g. Waters v. Brookshire Grocery Company, 07-203 (La.App. 3 Cir. 11/7/07), 969 So.2d 1287; Brock v. Winn Dixie Louisiana, Inc., 617 So.2d 1234 (La.App. 3 Cir.1993), writ denied, 617 So.2d 1234. Accordingly, we amend the judgment to reflect Harry Richard, Jr. is 50% at fault.

Damages

The plaintiffs assert the trial court erred in failing to award survival damages in this case. The medical testimony indicates that Ms. Wilson was dead upon her arrival at Savoy Medical Center. In support of the survival action, the plaintiffs submitted the testimony of Ms. Wilson’s sister who stated Ms. Wilson took a silver ring from her finger, gave it to her and said “bye.” Even though the trial court obviously found the sister’s testimony was not credible, the record clearly establishes, as borne out by the witnesses, that several minutes prior to the fatal shooting, Ms. Wilson was fully aware Richard had entered the home with a gun and was searching for her. She had to be in extreme fear for her life as he chased her through the house |13and fired two shots. Her fear and anxiety, no doubt, intensified when she realized Richard was only a few steps behind her and was within firing range. It is reasonable to conclude she knew her death was imminent. “The survival action in a suit resulting from the death of a tort victim includes recovery for pain and suffering, loss of earnings and other damages sustained by the decedent up to moment of death.” Prince v. Mattalino, 583 So.2d 541, 543 (La.App. 3 Cir. 1991). “Damages for pain and suffering are properly awarded if there is a scintilla of evidence of any suffering or pain or the part of the deceased by his actions or otherwise.” Id. The trial court erred in failing to award any survival damages in this case. We find an amount of $50,000 is a reasonable amount for survival damages.

The trial court awarded $60,000 to each of the children for the wrongful death of their mother. The elements of damage for a wrongful death action are loss of love, affection, companionship, services and loss of support, medical expenses and funeral expenses. Simmons v. CTL Distrib., 03-1301 (La.App. 5 Cir. 2/23/04), 868 So.2d 918. Wrongful death awards may be based on the degree of affection with the deceased, the amount of guidance needed by the minor child and the closeness of the family relationship. Williams v. City of Monroe, 27,065 (La.App. 2 Cir. 7/3/95), 658 So.2d 820, writ denied, 664 So.2d 451, 452 (La.1995). An appellate court may disturb an award of damages only when the record clearly shows that the factfinder abused its broad discretion in making the award. Scott v. Pyles, 99-1775 (La.App. 1 Cir. 10/25/00), 770 So.2d 492, writ denied, 782 So.2d 633 (La.2001). After a determination that an award constitutes an abuse of discretion based on the particular injuries sustained and their effect on the particular injured person, the appellate court may reduce or increase the award to the highest or lowest amount reasonably within the factfinder’s discretion. Wilson v. Nat’l Union Fire Ins. Co., 27,702 (La.App. 2 Cir. 12/6/95), 665 So.2d 1252. |14Ms. Wilson had four surviving children, under the age of six. The baby was only three weeks old at the time of the shooting. Laura Wilson, Ms. Wilson’s mother, testified regarding the close relationship the children had with their mother. She stated the older child is going to counseling twice a week since the death of his mother. All four children will be deprived of the love, affection and the support of their mother for their entire live. We have reviewed the case law and find the lowest reasonable recovery for the wrongful death of a mother, given the ages of the children, is $150,000 to each child. See McGrail v. Lee, 35,756 (La.App. 2 Cir. 4/3/02), 814 So.2d 729, which affirmed a jury award of $750,000 each to three children, ages nine, eighteen, and twenty-one. The court found the award “approaches], but do[es] not exceed the highest amount reasonably within the broad discretion of the jury.” Id. at 736. In Simmons, 868 So.2d 918, the court affirmed an award of $300,000 to the child; See also Brooks v. City of Baton Rouge, 558 So.2d 1177 (La.App. 1 Cir.1990), writ denied, 566 So.2d 982 (La.1990). Plaintiff correctly points out in Ford v. State, through Dep’t of Transp. and Dev., 99-1297 (La.App. 3 Cir. 4/12/00), 760 So.2d 478, writ denied, 00-1935 (La.9/27/00), 769 So.2d 1214, writ denied, 00-1864 (La.9/29/00), 770 So.2d 350, writ denied, 00-1938 (La.9/29/00), 770 So.2d 352, this court awarded $150,000 to a daughter for the wrongful death of her seventy-five year old mother and in Monk v. State, through Dep’t of Transp. and Dev., 05-97 (La.App. 3 Cir. 6/29/05), 908 So.2d 688, writ granted, 05-2337 (La.3/24/06), 925 So.2d 1238, order recalled, 05-2337 (La.10/17/06), 940 So.2d 642, this court awarded the children $500,000 for the death of their mother. Accordingly, we amend the judgment to increase the award to $150,000 to each child.

DECREE

Based on the foregoing review of the record, we affirm the decision of the |istrial court finding liability on the part of the Town of Mamou. We amend the judgment to reflect Harry Richard, Jr. is 50% at fault in causing the death of Ms. Wilson and we increase the damage award for the wrongful death of Ms. Wilson to $150,000 to each child. We award $50,000 for survival damages. In all other respects the judgment is affirmed. All costs of this appeal are assessed to the Town of Mam-ou.

JUDGMENT AFFIRMED AS AMENDED.

AMY, J., concurs in the result and assigns written reasons.

AMY, J.,

concurring in the result.

hi respectfully concur in the result. This is an instance in which the legislature has provided instruction to law enforcement to use “all reasonable means to prevent further abuse.” However, the question of what particular actions constitute “all reasonable means” remains an open one for the courts. This is particularly true where the police are not exercising custodial control over the victim.

Here the trial court was faced with a situation in which the police officer offered medical treatment or assistance with contacting a shelter, but the victim either refused or decided not to pursue further assistance. Nevertheless, given the testimony surrounding Miss Wilson’s time at the police department and her return to her mother’s home, the trial court could have concluded that the police officer’s assistance was simply inadequate. The record supports a determination that the officer failed to explain the immediacy and danger of not reporting to the shelter to either the victim or her mother. It also supports a finding that the department could have reasonably offered further protection in transport to the shelter and that the failure to do so was a cause of Miss Wilson’s death. Thus, I find that the imposition of liability on the Town of Mamou must be affirmed.

I join in the majority’s determinations regarding statutory immunity, apportionment of fault, and assessment of damages.

      . The Statement of Purpose is found in La. R.S. 46:2121, and provides, in relevant part:
      A. The legislature hereby finds and declares that there is a present and growing need to develop innovative strategies and services which will reduce and treat the trauma of family violence. Available studies documenting police statistics indicate that thousands of persons in this state are regularly beaten, tortured, and, in many cases, killed by spouses or persons with whom they are living in a primary relationship. These studies further indicate that victims of family violence come from all socioeconomic classes and ethnic groups, though it is the poor who suffer most from family violence, since it is less likely that they have immediate access to private counseling and shelter for themselves and their children. Children, though often not physically assaulted, suffer deep and lasting emotional effects, and it is most often the children of those parents who commit family violence that perpetuate the cycle by abusing their spouses.
      B. The legislature further finds and declares that there is a high incidence of deaths and injuries sustained by law enforcement officers in the handling of domestic disturbances. A definite correlation between family violence and marital homicide has been established, yet police arrests for family violence are low, and victims are reluctant to press charges. Furthermore, instances of family violence are considered to be the single most unreported crime in the state.
      C. It is the intention of the legislature to achieve a reduction in serious and fatal injuries to the victims of family violence and to clarify the problems, causes, and remediation of family violence by providing that necessary services including shelter, counseling, and referrals to social services, medical care and legal assistance in the form of a family violence center.

      . Lt. Israel asserted for the first time at trial that he left the police station while Ms. Wilson was there to search for Richard. The trial court apparently did not find this statement credible and found Lt. Israel performed a "two or three minute search at the outset [and] no one did anything other than patrolman A1 Moore who was at the home of Judge Thomas Fuselier seeking the Judge's signature on an arrest warrant while Harry Richard, Jr. was gunning down Michelle Yvette Wilson.” Further, Al Moore testified when he secured the warrant and brought it to the station, Lt. Israel was at the station and not on patrol.

      . We note in Latiolais, 747 So.2d 675, the estranged husband in a fit of violent rage murdered both the wife and son.