author: EZELL, Judge.

text:
    STATE of Louisiana v. Brandon J. OFFICE.
    No. KA 07-193.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      William E. Tilley, District Attorney— Thirtieth Judicial District Court, Leesville, LA, for PlaintiffiAppellee, State of Louisiana.
    Elvin Clemenee Fontenot, Jr., Attorney at Law, Leesville, LA, for Defendant/Appellant, Brandon J. Office.
    Terry Wayne Lambright, Attorney at Law, Leesville, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, OSWALD A. DeCUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

11 On November 22, 2005, the Vernon Parish District Attorney’s Office filed a bill of information charging Defendant, Brandon J. Office, with one count of armed robbery, in violation of La.R.S. 14:64, and one count of aggravated kidnapping, in violation of La.R.S. 14:44. Subsequently, Defendant waived his right to a jury trial. On April 11, 2006, the State amended the second count to second degree kidnapping, a violation of La.R.S. 14:44.1. On the same date, the court heard evidence and found Defendant guilty on both counts.

Defendant appeared for sentencing on November 28, 2006. The court sentenced him to forty years at hard labor for armed robbery and forty years at hard labor for second degree kidnapping; the first two years of the latter sentence are to be served without benefit of parole, probation, or suspension of sentence. The sentences are to run concurrently with one another. The court denied Defendant’s motion to reconsider the sentence.

Defendant now appeals to this court, assigning three errors. We find the convictions and sentences should be affirmed.

FACTS

The victim, Antonio Jordan, was with friends in a Leesville diner at approximately 1:00 a.m. on July 1, 2005. As Jordan was leaving the diner, Defendant approached him and asked him about his 1985 Buick, which was for sale. As the two men discussed the car, the victim’s friends left in other vehicles. Defendant had an associate nearby, sitting in a white Ford Taurus. Defendant asked to test drive the car, but the victim refused. Defendant walked over to the Taurus, and when he returned, he forced the victim into the passenger seat of the car. Although he did not |.¿see a gun at that time, the victim complied because he felt a gun digging into his side. Defendant then got in also, and drove north on Highway 171. The driver in the white Taurus followed.

After they got into the Buick, the victim saw Defendant’s gun. Once the cars crossed the intersection of Highway 28, they pulled over to the right shoulder of the road. Testimony indicated the area north of the intersection is not well lit. Defendant pointed his gun at the victim and ordered him out of the car. The victim attempted to punch Defendant, who evaded the blow. The victim jumped out of the car and heard a gunshot behind him. Defendant then resumed his northbound route in the stolen Buick, and the driver in the Taurus followed him.

Later, after a Many police officer tried to apprehend him, Defendant left the stolen car and rendezvoused with his associate in the white Taurus. Police apprehended Defendant further north, after a ear chase.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the trial court erred by denying his motion for post verdict judgment of acquittal. The State argues such a motion was procedurally improper in a bench trial. We find the propriety of the motion need not be addressed. Defendant’s current argument clearly challenges the sufficiency of the evidence, an issue this court commonly reviews without requiring any motion below to preserve it.

The analysis for such sufficiency claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satis-fled its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

As noted earlier, Defendant was convicted of armed robbery, which is defined by La.R.S. 14:64(A): “Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

He was also convicted of second degree kidnapping, which is defined by La.R.S. 14:44.1(A)(2): “Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is: ... Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony[.]” Subsection B of the statute states, in pertinent part: “The forcible seizing and carrying of any person from one place to another[.]”

Defendant argues the State failed to prove that he had a gun at the time he ordered the victim into the Buick. We note that in his statement to police, Defendant admitted stealing the car but denied using a weapon. Thus, identity is not at issue in the present analysis.

The victim acknowledged that he did not initially see the gun; however, he testified that he could feel it poking him in the ribs. Further, the victim testified that once in the car, he saw that Defendant had the gun between his leg and the “console.” As noted earlier, after they crossed the intersection of Highway 28, |..¿Defendant pulled over, as did his associate, who was following them in the white Taurus. The victim testified that Defendant then pointed the gun at him and ordered him out of the car. After trying, and failing, to punch Defendant, the victim jumped out of the car. He heard a gunshot, then the two cars sped off.

Thus, the victim’s testimony that he felt the gun poking his ribs provided direct evidence that Defendant had the gun at the time he ordered the victim into the car. This direct evidence was corroborated by his testimony that he actually saw the gun once they were inside the car. The latter testimony provided strong circumstantial evidence that Defendant had the gun at the time of the initial abduction.

This aspect of the State’s case was further bolstered by the testimony of the police officers who later encountered Defendant. At approximately 2:00 a.m., Jami Dale Hensley of the Many Police Department attempted to intercept a car speeding northbound on Highway 171. After a short chase, the car came to a stop, and the driver bailed out and ran away with an object in his hands. We note that Henley was unable to identify the driver as Defendant, and also was not certain that the object he saw in the escaping man’s hand was a gun. However, he testified that he subsequently heard police radio traffic that indicated the same suspect had gotten into a white vehicle.

Sabine Parish Deputy Larry Rutherford also testified that he heard radio traffic indicating the suspect initially pursued by Officer Henley had gotten into a white Ford Taurus. Between 1:00 a.m. and 2:00 a.m. on July 1, Rutherford was southbound on Highway 171, traveling from Zwolle to Many when he heard the radio call. Approximately two miles north of Many, he saw a white Taurus traveling northbound. When Rutherford got behind it and activated his overhead lights, it pulled over. The deputy arrested the driver without incident, but he saw someone Lclimb from the back seat into the front seat. This second man got behind the steering wheel; when Rutherford approached, the suspect produced a gun. He then drove north on Highway 171; Rutherford tried but failed to shoot out the tires. The deputy put the other suspect in his ear and gave chase to the Taurus. When he caught up to it ten minutes later, it was about three miles south of a town called Converse and had already been disabled by other officers.

Another deputy, David Self, took up the chase further north on Highway 171; he testified that during the chase, the driver of the Taurus stuck a gun out of the window and appeared to fire back at him. Self could not state “a hundred percent” that the driver actually fired the weapon, because of debris, smoke, and sparks that poured from the Taurus after it blew three tires going over a police spike-strip. However, Self testified he could clearly see the gun. When the suspect finally stopped the Taurus and ran to nearby woods, he was still holding a gun, according to Self.

We submit that the victim’s testimony, corroborated by the testimonies of the various police officers, provided sufficient evidence that Defendant used a gun to force him into the Buick. Further, Defendant subsequently used the gun to facilitate the armed robbery at issue, in later stages of the offense.

Also, we note the supreme court has stated:

In State v. Meyers, 620 So.2d 1160 (La.1993) this Court distinguished the crimes of theft and robbery. “The purpose of the force or intimidation element of robbery is to distinguish, by imposition of a more severe penalty, those takings which pose a greater risk to the victim.” Meyers, 620 So.2d at 1163. Accordingly, “the force or intimidation element of robbery is satisfied by evidence that force or intimidation directly related to the taking occurred in the course of completing the crime.” Meyers, 620 So.2d at 1163. It is immaterial whether the “taking of anything of value” occurs immediately before or after the “use of force or intimidation.” The element of danger is present notwithstanding the order of these events.

State v. Goodley, 01-77, p. 9 (La.6/21/02), 820 So.2d 478, 484.

Under Goodley and Meyers, Defendant clearly employed the gun as a means of force or intimidation that facilitated the robbery. Pursuant to the jurisprudence cited, the question of whether he used the gun to force the victim into the car would be superfluous, as he clearly used it later to force the victim out of the car, so that he could take full possession of it.

For the reasons discussed, the assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues the trial court erred by denying his motion for new trial. He notes that it is difficult to discern whether the trial court applied the “thirteenth juror” standard to its analysis, since the court denied the motion without reasons.

However, as the State points out, the true thrust of Defendant’s argument is identical to his argument in the first assignment of error, i.e., that the evidence adduced against him was insufficient to support the conviction. His motion in the trial court made the same argument. This argument was addressed in the previous assignment and was found to lack merit.

Defendant’s original motion was based on the following language from La.Code Crim.P. art. 851:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error[.]

17This court has previously explained:

This court has held when a trial court reviews a motion for new trial, the appropriate standard for re-weighing the evidence is the “thirteenth juror” standard. State v. King, 96-1303, pp. 5-6 (La.App. 3 Cir. 4/2/97), 692 So.2d 1296, 1299, citing State v. Long, 590 So.2d 694 (La.App. 3 Cir.1991).
In State v. Snyder, 98-1078, p. 37 (La.4/14/99), 750 So.2d 832, 859, n. 21 (alteration in original), the supreme court stated:
In the instant case, the constitutional issue of sufficiency is treated in assignment of error number 1 because the denial of a motion for new trial based upon La.C.Cr.P. art. 851(1) is not subject to review on appeal. State v. Skelton, 340 So.2d 256, 259 (La.1976) (“[W]e have uniformly held that a bill of exceptions reserved to the refusal of the trial judge to grant a motion for a new trial based on Article 851(1), relative to sufficiency of the evidence presents nothing for our review.”) (citations omitted); State v. Bartley, 329 So.2d 431, 433 (La.1976) (“It is well established in Louisiana that an assignment of error reserved to the denial of a motion for a new trial alleging that the verdict is contrary to the law and the evidence presents nothing for appellate review.”) (citations omitted).
As the trial court used the correct standard of reviewing the motion for new trial, this assignment of error is not reviewable pursuant to La.Code CrimJP. art. 858 and State v. Snyder.
Defendant argues in the alternative, the trial court should have granted his motion for new trial under La.Code Crim.P. art. 851(5). La.Code Crim.P. art. 851(5) states, in pertinent part, “The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”
This court has routinely held that denial of a motion for new trial to serve the ends of justice is not subject to review upon appeal. State v. Jason, 01-1428, p. 9 (La.App. 3 Cir. 7/10/02), 820 So.2d 1286, 1292, citing State v. Prudhomme, 532 So.2d 234 (La.App. 3 Cir. 1988), writ denied, 541 So.2d 871 (La.1989).

State v. Giles, 04-359, pp. 22-23 (La.App. 3 Cir. 10/6/04) 884 So.2d 1233, 1247-48, writ denied, 04-2756 (La.3/11/05), 896 So.2d 62.

IsFurther, although it is not clear what standard the trial court applied, this court can presume the trial court applied the proper standard. State v. Callegari, 00-437, (La.App. 3 Cir. 11/2/00), 773 So.2d 806, writ denied, 00-3338 (La.11/9/01), 801 So.2d 362 (citing State v. Washington, 614 So.2d 242 (La.App. 3 Cir.), writ denied, 619 So.2d 575 (La.1993)). Also, Defendant does not argue that any particular ruling by the trial court resulted in prejudicial error, for purposes of his motion for new trial and La.Code Crim.P. art. 851(2).

Thus, pursuant to the jurisprudence, there is nothing for this court to review. Further, the substantive questions raised under this assignment were explored during the Jackson review in the previous assignment of error. For the reasons discussed, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his final assignment of error, Defendant alleges that his forty-year sentences are excessive. Similarly, his motion to reconsider in the trial court contained only a bare claim of excessiveness.

The sentencing range for armed robbery is ten to ninety-nine years. La.R.S. 14:64(B). Thus, Defendant received a mi-drange sentence for that crime. The sentencing range for second degree kidnapping is five to forty years; thus, Defendant received the maximum sentence for this offense. La.R.S. 14:44.1(C).

The analysis for excessive-sentence claims is well-settled:

[Louisiana Constitution Article I], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute . an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless | [Imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331(second alteration in original).

In further refining the analysis, this court has stated:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Pursuant to the first factor listed in Smith, the offenses at issue were violent in nature; as for the second factor, the nature of the offender, Defendant has a history of violent crime.

At sentencing, the following colloquy occurred:

BY MR. STRIDE R:
Your Honor, may we call Mr. Office? May we call Mr. Office?
BY THE COURT:
I in You may.
BY MR. STRIDER:
Your Honor, this is Brandon Office, docket Number 69,156 here for sentencing today on an armed robbery and a second degree kidnapping.
BY MR. FONTENOT:
Your Honor, for the record, my name is Elvin Fontenot, I’m retained counsel for Mr. Office. Your Honor, before this sentencing takes place this morning I had filed a motion for a sentencing hearing and anticipated some testimony from Mr. Office’s parents, but they are not here and were unable to be here at this time. So, we’re going to move to dismiss that request for sentencing hearing, Your Honor.
BY THE COURT:
Very well. This is Number 69,156, State of Louisiana versus Brandon Office, Brandon Jermane Office. The offenses are armed robbery and second degree kidnapping. The penalty for armed robbery is 99 years without benefit of parole, probation or suspension of sentence. Second degree kidnapping is five to 40 years, two years of which is without suspension of sentence or probation or parole. The facts are that this defendant here drove the victim’s vehicle with the victim in it under the guise of wanting to buy the victim’s car and got him down the road, pulled out a gun and ordered him out of the car. Then he took off down the road, the police got after him and he got into a big running battle with the police up in — he went all the way through Sabine Parish. But, this defendant was tried by the Court, a Judge trial, and found guilty on both Counts on April of this year, April 11th of this year. Does the defendant have anything to present at this time, Mr. Fontenot?
BY MR. FONTENOT:
No, Your Honor.
BY THE COURT:
The Court considers the sentencing guidelines in Article 894.1, the pre-sen-tence report and the fact that this is this defendant’s fourth felony offense. When I look at his history it appears that he has — these are violent offenses. They’re offenses where weapons were used. But, considering all of the circumstances the Court finds there is an undue risk during a period of suspended sentence or probation the defendant will commit another crime. The Court finds that a lesser sentence will deprecate the seriousness of this defendant’s conduct.
Inlt’s the sentence of the Court that you serve 40 years at hard labor with the Louisiana Department of Public Safety and Corrections without benefit of probation, parole or suspension of sentence, with credit for time served since the date of your arrest.
On Count 2 you’re to serve 40 years at hard labor with the Loiiisiana Department of Public Safety and Corrections, two years of which will be served without benefit of parole, probation or suspension of sentence with credit for time served since the date of arrest. I will make these sentences run concurrent with each other. Your sentence is subject to diminution for good behavior pursuant to Revised Statute 15:571.3. The sentence imposed was not enhanced due to any relevant provision of the law. You have 30 days within which to appeal and two years within which to file an application for post conviction relief.
BY MR. FONTENOT:
Your Honor, for the record, we wish to file a motion to reconsider sentence
BY THE COURT:
Very well.
BY MR. FONTENOT:
... for purposes of preserving that for appeal and ask that the Court rule on that this morning, Your Honor, and that it be made part of the record.
BY THE COURT:
Very well. The Court would deny the motion to reconsider at this time.

We have obtained a copy of the presen-tence investigation report; as the trial court stated, it shows Defendant has a history of crimes involving firearms and that he has three prior felonies.

Regarding the third Sviith factor, the comparison of sentences for similar offenses, we note that in State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06), 947 So.2d 105, the court held a seventy-five-year sentence for armed robbery was not excessive. The court observed that the defendant shot at a witness who tried to follow him, hitting the witness’s truck.

| ]2As for the jurisprudence regarding second degree kidnapping, we observe that in State v. Moore, 37,935 (La.App. 2 Cir. 1/28/04), 865 So.2d 227, writ denied, 04-507 (La.7/2/04), 877 So.2d 142, the court held that a forty-year sentence for second degree kidnapping, in conjunction with armed robbery and attempted second degree murder, was not excessive where the victim was shot and left for dead; State v. Brock, 37,487(La.App. 2 Cir. 9/26/03), 855 So.2d 939, writ denied, 04-1036 (La.4/1/05), 897 So.2d 590, held similarly, where the companion’s offense was aggravated burglary and the victim was beaten and left for dead; in State v. Lefeure, 02-592 (La. App. 5 Cir. 10/29/02), 831 So.2d 398, writ granted in part on other grounds, 02-2924, 02-3231 (La.10/3/03), 855 So.2d 291, the court reduced the defendant’s sentences on companion charges, and rendered them concurrent, but left his forty-year sentence for second degree kidnaping intact; there does not appear to have been any particular cruelty or heinous action in Lefeure.

In view of the cases cited, it does not appear that the forty-year sentences are outside the norms of Louisiana jurisprudence, even though maximum sentences are usually reserved for the worst offenders. State v. Banks, 95-1210 (La.App. 3 Cir. 6/25/97), 699 So.2d 418. While Defendant’s actions are not heinous or cruel, we note the victim testified Defendant shot at him as he exited the Buick. Thus, we suggest that, but for chance or poor aim, this could easily have been a murder case. Defendant is a career criminal who is willing to resort to violence, including the use of firearms, to accomplish his goals. Thus, we suggest the trial court did not abuse its discretion in formulating the sentences. We observe the trial court could have pronounced a much longer sentence for the armed robbery. For the reason discussed, this assignment lacks merit.

| ^CONCLUSION

The convictions and sentences are affirmed.

AFFIRMED.

      . The record repeatedly refers to this car as a “Tarsus.''

      . Although the victim repeatedly referred to the "console,” his description, of it suggests he was referring to a fold-down armrest for the front seat.

      . See also State v. Campbell, 94-1140 (La.App. 3 Cir. 3/13/96), 673 So.2d 1061, writ denied, 96-1785 (La.1/10/97), 685 So.2d 140, reversed on other grounds, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998).


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Mary Faye O’QUIN, et al. v. CONTINENTAL CASUALTY INSURANCE CO., et al.
    No. 07-355.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 2007.

      Frank E. Lamothe, III, Attorney at Law, Covington, LA, Darrel D. Ryland, Attorney at Law, Marksville, LA, for Plaintiffs/Appellees, Mary Faye O’Quin, Logan O’Quin, Paige O’Quin.

      John S. Hunter, Attorney at Law, New Orleans, LA, for Defendants/Appellees, Continental Casualty Insurance Company, Sherie Johnson.
    J. Albert Ellis, Assistant Attorney General, Louisiana Department of Justice, Alexandria, LA, for Defendants/Appellants, Louisiana State Police, State of Louisiana, Department of Public Safety & Corrections.
    Maria A. Losavio, Losavio Law Firm, Alexandria, LA, for Defendant/Appellee, Oil Mop, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

hThe State of Louisiana, through the Department of Public Safety and Corrections, Louisiana State Police (the State), appeals a judgment rendered in accordance with a jury verdict finding it 80% at fault in the death of Faron O’Quin and awarding Plaintiffs damages. For the following reasons, we affirm.

INTRODUCTION

This matter arises from the death of a volunteer fireman at the site of a hazardous material spill when he was struck nearly fifteen hours after the spill by a pickup truck driven by Herman T. Kelly. Mr. O’Quin’s widow, Mary Faye O’Quin, individually and on behalf of her minor children, Paige O’Quin and Logan O’Quin, filed a wrongful death and survival action against the State, alleging that it was liable for their damages because it failed to properly secure the scene of the initial accident.

This matter proceeded to jury trial on September 25-29, 2006. The jury returned a unanimous verdict in favor of Plaintiffs and against the State, finding the State 80% at fault and Mr. Kelly 20% at fault for the death of Mr. O’Quin and awarding Plaintiffs damages. On November 27, 2006, the trial court rendered judgment in accordance with the jury verdict. After subtracting the amount of the damages awarded attributable to the fault of Mr. Kelly, Plaintiffs were awarded damages in the following amounts:

Mary O’Quin.$834,051.76
Paige O’Quin.$379,200.00
Logan O’Quin .$379,200.00

1 aIt is from that verdict and judgment that the State now appeals. In its sole assignment of error, the State asserts that:

The [jury] erred by assessing eighty percent fault to [the] State DPS & C where the cause-in-fact of the accident was wholly the fault of unnamed code-fendant’s [sic] Herman Kelly’s act of failing to properly operate his vehicle under extremely limited visibility and was thereby unable to avoid striking emergency personnel in the his [sic] path, is supported by the facts and the law.

FACTS

On March 14, 2003, at approximately 4:30 p.m., an eighteen-wheeler carrying potentially hazardous chemicals overturned, spilling some of its contents onto the entrance of Sammy’s Truck Stop (Sammy’s) on Highway 115 near its intersection with 1-49 just outside of Bunkie, Louisiana. Several members of the Bunkie Fire Department arrived on the scene shortly thereafter. Fire Chief Joseph Frank summoned the Hazardous Materials Unit (HazMat) of the State Police due to his concern that the contents of the truck may have been leaking.

Jared Foreman and Mr. O’Quin, volunteer firemen with the Lone Pine Fire Department, separately stopped at the scene on the way home from their respective employments. Fire Chief Frank asked if they could stay and help his firemen, and they agreed. Mr. Foreman testified that firemen usually arrive at the scene of an accident before the police; therefore, firemen often worry about getting hit by motorists. After the police arrive, however, they trust them to secure the scene.

Trooper Shelly Hopkins was the Haz-Mat officer who initially responded to the accident. As the HazMat officer in charge of the scene, his job was to designate the area that was off-limits to persons not wearing the appropriate protective gear. He testified that traffic control was not a part of his duties, but rather, that the road troopers were in charge of that aspect of the accident site.

1 ¡/Trooper John Douglas of the Louisiana State Police, an officer with nearly twenty-three years of experience as a road trooper at the time of the accident, arrived on the scene at 8:30 p.m. on March 14, 2003. His job was to engage in traffic control. He testified that the weather was clear when he arrived but that fog came in later in the evening and remained throughout the next morning in variations of thickness. He initially parked his vehicle near Officer Hopkins’ HazMat vehicle so that his lights would be visible from the rear. Trooper Douglas testified that the fog was more dense closer to the interstate and that he ran the risk of being hit if he parked closer to the interstate. He acknowledged having stated in previous out-of-court testimony that if his vehicle would have been parked closer to 1-49, it would have been the first thing that Mr. Kelly would have struck, and Plaintiffs’ attorney would be representing his widow rather than Mrs. O’Quin.

Trooper Douglas stated that he was sitting in his patrol ear in the center of the roadway with his blue emergency lights flashing when Mr. O’Quin was hit. Although he did not see the impact because he was facing the opposite direction, he stated that he heard tires squealing and then heard the impact. The impact occurred to the right and behind him. He stated that several fire trucks were “up there [near the chemical spill]” at the time Mr. O’Quin was struck. Trooper Douglas testified that his supervisor, Officer Martel, arrived at the scene after the O’Quin accident and ordered him to move his vehicle closer to the interstate in order to extend the perimeters of the accident scene. Because he was still concerned for his own safety, Trooper Douglas parked on the neutral ground of the exit ramp where 1-49 meets Highway 115 to avoid being hit by oncoming traffic.

|4The trial testimony indicated that the pickup truck of an employee of Oil Mop, L.L.C., an emergency response company, became the staging area for many of the first responders, such as Mr. O’Quin, who were not actively engaged in offloading the overturned truck, and, thus had to remain outside of the chemical hazard zone established by the HazMat unit. Trooper Douglas testified that he was aware that various first responders came and went around the Oil Mop truck throughout the entire evening.

On March 14, 2003, at approximately 8:00 a.m., Virgil Blanchard, an employee of Oil Mop, responded to the hazardous material spill. His job was to transfer the load from the overturned truck to another empty eighteen-wheeler supplied by the trucking company so that the overturned truck could be up-righted. Mr. Blanchard testified that he parked his Oil Mop company truck off the right side of the road a short distance past the first entrance to Sammy’s, ahead of the state trooper’s vehicle. He felt that he had parked in a secured zone. When he initially arrived, the state trooper’s vehicle was blocking the first entrance to Sammy’s, but the trooper later moved his vehicle to allow entry into Sammy’s parking lot. Mr. Blanchard stated that after he finished transferring the chemical, he noticed that the trooper had moved his vehicle again. By the time the O’Quin accident occurred, Mr. Blanchard’s Oil Mop truck was the first vehicle that a motorist headed east on Highway 115 would encounter upon approaching the initial accident site.

Mr. Blanchard testified that it was daybreak when he finished off-loading the chemicals and returned to his truck to store his gear. There was a group of people [¡^standing near the tailgate of his truck, including Mr. O’Quin, Mr. Cory Bu-taud, and two wrecker company employees. He remembered that Mr. O’Quin had his reflective gear on at the time. The fog was very heavy and visibility was minimal. He testified that he heard the sounds of an engine racing and tires squealing, coming from the direction of the interstate. He then saw the lights of a vehicle about 150 to 200 feet away. Mr. Blanchard testified that they all put their hands in the air and began waiving, trying to get the attention of the driver. The driver started skidding toward them with his brakes locked. Mr. Blanchard was afraid of getting pinned behind his truck. He, another first responder, and Mr. O’Quin moved to the ■ right side of the Oil Mop truck. Mr. O’Quin continued moving farther to the right and onto the driveway going into Sammy’s. Mr. O’Quin was then hit by the truck and dragged for a couple of hundred yards.

Matthew Leary, a fireman with the Bunkie Fire Department, testified that Mr. O’Quin was already on the scene when he arrived in his fee truck, and they worked together throughout the evening. He left the fire truck’s emergency lights on all night per standard procedure. Mr. Leary testified that between one and two in the morning, because of the extremely foggy conditions, he and Mr. O’Quin were nearly hit by a chartered bus headed to a casino. The bus stopped just two or three feet from the first responders’ vehicles.

Mr. Leary stated that he saw Mr. O’Quin standing next to Mr. Blanchard’s Oil Mop truck drinking coffee as he walked away to make a phone call. He then heard a truck with loud exhaust pipes but could not see the truck because of the fog. |6Mr. Leary first thought that it was on 1-49 then realized that it was coming toward Sammy’s. He heard someone yell that Mr. O’Quin had gotten hit, and he turned to see him going down in the ditch.

Robert Cornelius testified that he and his family stopped at Sammy’s for a bathroom break on the morning of Mr. O’Quin’s accident. Although Mr. Cornelius was very familiar with the location of Sammy’s and he was on the lookout for it, he nearly drove past Sammy’s because of the fog. He testified that he almost hit Mr. O’Quin as he turned into Sammy’s because there was no warning of the blocked roadway. After parking, he went to check out the scene because he would be using the same road the next morning. He spoke with Mr. O’Quin and learned about the overturned truck. He noticed that the state trooper’s car was parked “up inside” some other vehicles. He felt uneasy standing there talking because, although he could hear the sound of vehicles traveling on the roadway, he could not see anything. He told Mr. O’Quin to be careful and had walked only about twenty steps away when he heard brakes squealing and a thud. He turned around to see Mr. O’Quin face down in the ditch. HazMat officers immediately began CPR on Mr. O’Quin without success.

Charles Clark, a trucker who stopped at Sammy’s almost daily to eat and refuel, was headed to Sammy’s around 7:00 on the morning of March 15, 2003, traveling between fifteen and twenty miles per hour. He, too, testified that it was very foggy, that he could not see that the road was blocked until he got right up to Sammy’s driveway, and that there were no prior warnings of the blocked roadway. After parking his truck, he found out that Mr. O’Quin had been hit. He remembered remarking to two men at the scene, within earshot of several officers, that “they [the 17police] should have been at the exit[s] from the Alexandria side and Opelousas side warning people, you know, because it was so foggy.”

Herman Kelly, the motorist who struck Mr. O’Quin, was thirty-six years old at the time of trial. He testified that he had been in the trucking business for eleven years. He lived on Highway 115 on the other side of the interstate from Sammy’s. He was headed to work in his Ford F-150 pick-up truck at 6:45 on the morning of March 15, 2003. The weather was muggy and foggy. He was comfortable driving in the fog and was traveling about fifty miles per. hour or less, a speed that he felt was safe. After crossing under the interstate, he saw a crowd of people directly ahead of him, and he panicked. He had both hands on the wheel and stood up on the brakes so hard that his body was straight. He immediately swerved to the right toward the ditch to miss the crowd. He saw a man running with his hands in the air making a flagging motion and, much to his regret, he struck him. After the impact, he scrambled to look behind him, and his feet hit the gas. His truck spun to the left, then to the right, and finally came to rest on a culvert.

Mr. Kelly testified that he could not see the lights from Sammy’s as he approached the area that morning. He indicated that the fog was much worse at the time of the accident than what is depicted in the photographs taken after the accident and shown at trial. He testified that he had not passed Sammy’s when he left work the day before on March 14, 2003, because traffic was being routed through Cheney-ville. Upon inquiry as to why the traffic was being rerouted, Mr. Kelly was told that there had been a wreck.

The parties stipulated that if Bruce Graham, an employee of the DOTD, were called to testify, he would have stated that the DOTD had in its Marksville, Louisiana Isoffice barricades, cones, channelizing barrels, and other devices that could have been placed on the road if requested. The DOTD did not receive such a request.

John Painter was offered by Plaintiffs and accepted by the trial court as an expert in accident reconstruction and police vehicle operations. He was unable to compute Mr. Kelly’s speed with great precision because Mr. Kelly had tried to stop, briefly accelerated, and then tried to stop again. Taking into account the skid marks left by Mr. Kelly’s tires and the dampness of the road due to the fog, he estimated that Mr. Kelly’s speed was between fifty and fifty-five miles per hour. His measurements indicated that Mr. Kelly saw the people standing on the road ahead of him from 220 to 300 feet away, a distance farther than that testified by Mr. Kelly. He opined that the direction of the sun on the foggy morning of Mr. O’Quin’s accident would have made it more difficult for Mr. Kelly to see the emergency lights ahead of him.

Upon cross-examination, Mr. Painter discounted the deposition testimony of George Schneider, a tow truck driver at the scene of the accident. Mr. Schneider was facing the interstate and could see Mr. Kelly’s headlights at a distance of 1000 feet away as he drove under the interstate. Mr. Painter stated that Mr. Kelly’s visibility could not be compared to that of Mr. Schneider’s because Mr. Kelly was facing the sun and an array of vehicles ahead of him, not just looking ahead into the darkness.

Mr. Painter was of the opinion that Trooper Douglas’s actions may have been reasonable for a lone responder during a low-traffic daytime accident; however, once he knew that the road would have to be closed for an extended period of time, he should have called for additional assistance. Trooper Douglas also should have moved his car at nightfall and done more to direct the traffic. Reflective cones or flares should have been used temporarily until the DOTD could arrive to help shut | sdown the roadway because after the fog-appeared, visibility worsened, and motorists needed even more advance warning. Mr. Painter stated that another purpose of an advance warning area is to create a buffer zone to protect first responders at the scene from motorists unable to stop in time. He added that warning systems should be set up with reasonable expectations that some drivers will be speeding, fatigued, or drunk.

Mr. Painter concluded that the location of Trooper Douglas’s vehicle at the time of the accident, embedded within non-police vehicles and facing away from traffic, was inappropriate for traffic control under the circumstances because it provided no warning and no buffer zone, both of which could have easily been provided, thus preventing Mr. O’Quin’s death.

As a witness for the State, Kelly Adam-son was accepted by the trial court as an expert in accident reconstruction and civil engineering. Mr. Adamson estimated that Mr. Kelly was going between sixty and seventy miles per hour before he began braking. After reviewing the deposition testimony of other people at the scene, Mr. Adamson was of the opinion that visibility was farther than what Mr. Kelly described.

Mr. Adamson concluded that the cause of the accident that killed Mr. O’Quin was Mr. Kelly’s traveling too fast for the conditions. He opined that, in light of the fact that Mr. Kelly was a commercial vehicle operator, he should have known better because he had training with regard to how long it takes vehicles to stop.

On cross-examination, Mr. Adamson testified that he was contacted by the State regarding this case in December 2005, over two and one-half years after the accident. He received the depositions that he reviewed in forming his opinions just | inthree weeks before trial, and he did his latest inspection and survey of the accident site on the Sunday before trial.

LAW

Standard of Review

It is well settled that a court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though it is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Liability

The legislature has vested law enforcement officers with exclusive authority to regulate traffic, and the public has a corresponding obligation to follow traffic regulations. Blair v. Tynes, 621 So.2d 591 (La.1993). “[Ojfficers are duty bound to exercise this power reasonably to protect life and limb and to refrain from causing harm or injury.” Id. at 596. Thus, when a law enforcement officer becomes aware of a dangerous traffic situation, the officer has an affirmative duty to see that neither motorists nor pedestrians are subjected to unreasonable risks of harm. Id.; Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672 (La.App. 3 Cir.1991). Moreover, this duty extends not only to prudent, attentive drivers, but also to those who are momentarily inattentive or careless, or even intoxicated. Monceaux, 590 So.2d 672.

“[M]otorists are charged with a duty of reasonable care to maintain a careful lookout, observe any obstructions present, and exercise care to avoid them.... [Nevertheless,] they have a right to assume that the roadway is reasonably safe for use | nuntil they know, or should know, of an existing hazard.” Dupree v. City of New Orleans, 99-3651, pp. 19-20 (La.8/31/00), 765 So.2d 1002, 1015 (citation omitted).

In determining whether liability exists under the facts of a negligence case, the situation is analyzed using a duty-risk formula, in which the following must be considered: (1) whether the conduct of which the plaintiff complains was a cause-in-fact of the harm; (2) whether there was a duty on the part of the defendant which was imposed to protect against the risk involved; (3) whether there was a breach of that duty; and (4) damages. Blair, 621 So.2d 591.

Apportionment of Fault

The Louisiana Supreme Court has held that “[i]n determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.” Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985). The Watson court stated:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id.; see also, Johnson v. State ex rel. DOTD, 06-898 (La.App. 3 Cir. 12/13/06), 946 So.2d 682, writ denied, 07-510 (La.4/27/07), 955 So.2d 693.

The trier of fact’s allocation of comparative negligence is a factual determination that is owed deference by the court of appeal. Roberts v. Robicheaux, 04-1405 (La.App. 3 Cir. 3/2/05), 896 So.2d 1232, writ denied, 05-792 (La.5/13/05), 902 So.2d 1021. Therefore, a fault allocation should not be disturbed unless it is manifestly erroneous or clearly wrong. Id.; Molina v. City of New Orleans, 01-1411 (La.App. 4 Cir. 10/2/02), 830 So.2d 994, writ denied, 03-156 (La.3/28/03), 840 So.2d 573.

ANALYSIS

The State does not seriously contest the jury’s implicit finding that Trooper Douglas owed a duty to Mr. O’Quin, an emergency responder, to protect him from an approaching motorist who might not realize that the road was blocked until it was too late to stop. In fact, the State framed the issue of law for this court to review as “[wjhether a motorist driving at a speed farther [sic] than his ability to see the road before him obscured by thick fog, and as a result of the speed striking and killing [an] emergency responder in the roadway is within the ambit of protection owed by the State Police.” Rather, the State argues that the jury erred in assessing any fault to it, much less 80%, where the evidence supported a finding that Mr. Kelly was solely at fault for Mr. O’Quin’s death.

Plaintiffs contend that they met them burden of proving that Trooper Douglas’s conduct was a cause-in-fact of the harm suffered by the decedent; that the State owed a duty to protect emergency responders, such as Mr. O’Quin, from the risk that a speeding motorist, such as Mr. Kelly, would not have time to stop upon approaching the original accident scene; that Trooper Douglas breached that duty; and finally, that they suffered damages. In addition, Plaintiffs submit that the jury’s allocation of fault acknowledged that Mr. Kelly bore some responsibility for the death of Mr. O’Quin, but it also properly recognized that the State should bear the lion’s share of the fault 113for breaching its duty to protect the scene. Plaintiffs submit that the fault allocation was fully supported by the evidence and, thus, is not clearly wrong.

Liability

We conclude that the evidence overwhelmingly supports the jury’s conclusion that the conduct of the State was a cause-in-fact of the accident that killed Mr. O’Quin.

State Troopers have an affirmative duty, upon becoming aware of a dangerous traffic situation, to ensure that neither motorists nor pedestrians are subjected to unreasonable risks of harm. Monceaux, 590 So.2d 672. The initial chemical spill occurred in the daylight hours of March 14, 2003, nearly fifteen hours before Mr. O’Quin was killed. Trooper Douglas had almost twenty-three years experience as a road trooper at the time of this accident. Once it became apparent that the chemical spill could not be quickly removed, he was duty-bound to take additional measures to warn motorists using the roadway of the dangerous situation that they would be encountering. This is true because nightfall affects the visibility of roadway obstructions. Once fog entered the picture, the duty to provide additional warnings to motorists was enhanced and became even more important.

There were two other close calls at the scene in the early morning hours of March 15, 2003. Trooper Douglas testified that he feared for his own safety. It was stipulated that the DOTD had a twenty-four hour hotline that could be called to make requests for warning devices, such as barricades and barrels with flashing lights, that could have been placed on the road. Instead of ensuring that the site of the initial accident was secure and visible during the duration of the time necessary to clean up the chemical spill, so as to protect both motorists and emergency responders, Trooper Douglas embedded his vehicle among the other responder’s vehicles. His conduct |14amounted to a breach of the duty owed to Mr. O’Quin and damages occurred as a result.

Apportionment of Fault

The issue at the heart of this appeal is whether the jury’s apportionment of fault between the State and Mr. Kelly was manifestly erroneous or clearly wrong.

The thrust of the State’s argument in favor of this court increasing the jury’s allocation of 20% fault to Mr. Kelly is that he should have slowed down due to the fog and limited visibility on the morning of the accident and that his failure to do so was the sole cause-in-fact of the accident. No case law is cited in support of the State’s argument.

Plaintiffs counter that application of the Watson factors reveals that the jury’s fault allocation took into account the nature of the conduct of Trooper Douglas and Mr. Kelly and was consistent with Louisiana law governing fault allocation. In arguing that the jury’s allocation of fault is fully supported by the law and evidence, and is, thus, not manifestly erroneous or clearly wrong, Plaintiffs rely on Campbell v. La. Dep’t of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898.

In Campbell, a single-car accident occurred when the driver fell asleep at the wheel and his automobile struck a bridge abutment, resulting in the death of a passenger and injuries to the driver and another passenger. Following a bench trial, the trial court found the driver 25% at fault and the DOTD 75% at fault for causing the accident and resulting injuries. On appeal, this court amended the judgment to reduce the liability of the DOTD from 75% to 10%. The Louisiana Supreme Court reversed and reinstated the trial court judgment. In doing so, the court analyzed the fault of the | ^parties in causing the harm to the plaintiffs, finding it clear that the greater degree of fault lied with the DOTD under the circumstances of that case. The court stated:

[EJxcept to the extent that the driver’s negligence set the accident in motion, the driver had no control over the resulting harm caused by the impact of the vehicle with the concrete bridge abutment. The evidence presented by experts on both sides was that the purpose of a guardrail is to prevent or at least reduce the injuries and subsequent damage by redirecting a vehicle back onto the highway and to prevent impact with the concrete bridge abutment... .To put it another way, [the driver’s] negligence set the course for an accident to happen, but the harm or injuries to the guest passengers in [the driver’s] vehicle were a direct result of the impact with the concrete bridge abutment. We agree with the trial judge’s finding that the DOTD’s fault is more substantial than the fault of [the driver] in causing the harm sustained.

Id. at 902-903.

Plaintiffs submit that while Mr. Kelly’s conduct set the accident in motion, had the State properly secured the scene and' warned approaching motorists of the dangerous condition ahead and created a buffer zone, the first responders would have been in a protected zone. Plaintiffs suggest that while Mr. Kelly’s conduct would have perhaps resulted in property damage, it would not have caused the death of Mr. O’Quin.

Application of the Watson Factors

The first Watson factor asks whether the conduct resulted from inadvertence or involved an awareness of the danger. Trooper Douglas had been at the chemical spill site for over ten hours before Mr. O’Quin was killed. He had nearly twenty-three years experience as a road trooper when this accident occurred. He knew that the road was going to be blocked for a long time. He had encountered many dangerous traffic situations in the past. He was aware that the DOTD could provide him with barricades and barrels with flashing lights to give warning to approaching motorists of the dangerous traffic situation that they were about to encounter. He saw the fog roll in 11(jOvernight and remain throughout the morning. He knew that there were several close calls that morning where emergency responders had nearly been hit. He had even moved his vehicle because he feared for his own safety. We conclude that Trooper Douglas was, or clearly should have been, acutely aware of the danger. In contrast, Mr. Kelly was admittedly going faster than he should have been under the circumstances, but he was unaware of the danger ahead of him, i.e., the road’s closure and the close proximity of emergency personnel, because he had not be properly warned of its existence.

The second Watson factor questions how great a risk was created by the conduct. Trooper Douglas knew that the risk of a second accident was high, especially once the fog rolled in, because the chemical spill site took up the entire roadway. He knew that the first responders were using the area around Mr. Blanchard’s Oil Mop truck as a staging site, and that those responders expected to be in a zone of protection while they worked to clear the chemical spill. Being an experienced road trooper, Trooper Douglas also knew that some motorists would be traveling faster than what they should have been given the weather conditions. Mr. Kelly’s speed was such that he might be unable to stop his vehicle in time should he be confronted with an emergency.

The third Watson factor inquires into the significance of what was sought by the conduct. Trooper Douglas was in charge of traffic control at the scene. He was duty-bound to protect and secure the initial accident scene and to make sure that motorists and pedestrians were not subjected to unreasonable risks of harm. That duty required him to anticipate inattentive drivers and drivers who were exceeding the speed limit. Despite fearing for even his own personal safety, Trooper Douglas failed to adequately h7mark the initial accident scene so that motorists would be forewarned of the dangerous traffic condition ahead of them. Mr. Kelly was trying to get to work the morning of the accident. He had a duty to maintain a proper lookout for hazardous conditions and to maintain control of his vehicle.

The fourth Watson factor examines the capacity of the actors, whether superior or inferior. Trooper Douglas was a long-time state trooper who was trained in proper traffic control and advance warning procedures. Mr. Kelly was a trucker on his way to work in his personal vehicle, traveling a route that he knew well.

The final Watson factor inquires into whether there were any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Trooper Douglas had many hours to assess and re-assess the situation. In addition, he had many years of training and experience in handling dangerous traffic situations upon which he could rely in developing a traffic control plan customized to the particulars of the situation before him. In contrast, Mr. Kelly suddenly saw something ahead of him in the fog and had only seconds to process what he was seeing and how he was going to react.

Application of the facts of this case to the Watson factors overwhelmingly reveals that the State should bear a significant portion of the fault in this case.

In addition, we agree with Plaintiffs’ contention that while Mr. Kelly’s conduct set the accident in motion, Mr. O’Quin would likely have escaped injury had the State fulfilled its duty of properly securing the original chemical spill site and adequately warning on-coming motorists of the dangerous traffic situation ahead. This weighs in favor of assessing more fault to the State.

1 ^Plaintiffs presented more than ample evidence, including the testimony of an expert witness, to support them claim that the State should bear the majority of the fault for the accident that killed Mr. O’Quin. We conclude that the jury’s allocation of fault in this matter was neither manifestly erroneous nor clearly wrong.

CONCLUSION

We have carefully reviewed the record and have found no error in the jury’s finding that the conduct of both the State and Mr. Kelly was a cause of the accident which resulted in the death of Mr. O’Quin. Likewise, our review of the record reveals no error in the jury’s allocation of fault between the State and Mr. Kelly. The judgment of the trial court is affirmed. The State of Louisiana, through the Department of Public Safety and Corrections, Louisiana State Police, is cast with all costs of this appeal.

AFFIRMED.

      . Several other entities were named as defendants but, for various reasons, only the State remained a named defendant at the time of trial. Mr. Kelly and his insurer were not named as defendants, having settled for policy limits before suit was filed. Nevertheless, the jury verdict form contained interrogatories inquiring whether Mr. Kelly's conduct was a cause of the accident that resulted in the death of Mr. O'Quin and what percentage of fault should be attributed to Mr. Kelly. La. Code Civ.P. art. 1812 and La.Civ.Code art. 2323.

      . According to a diagram prepared by Plaintiffs' expert, John Painter, after consulting the police report and taking his own measurements at the scene, the Oil Mop truck was parked nearly 300 feet away from the actual spill location.

      . Mr. Butaud was an employee of B & V, an emergency response company that Oil Mop subcontracted with to render assistance in transferring the load after the chemical spill on March 14, 2003.


author: PICKETT, Judge. THIBODEAUX, Chief Judge,

text:
    Dawn JONES v. Robert MARTINEZ, et al.
    No. 07-24.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 24, 2007.

      James Edward Diaz Jr., John E. Ortego & Associates, Lafayette, LA, for Defendant-Appellee, State Farm Mutual Auto Ins. Co.
    Mark Anthony Delphin, Delphin Law Firm, Lake Charles, LA, Eulis Simien Jr., Mark Wayne Simien, Simien & Simien, Baton Rouge, LA, for Plaintiff-Appellant, Dawn Jones.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, JIMMIE C. PETERS, ELIZABETH A. PICKETT, and BILLY H. EZELL, Judges.
   PICKETT, Judge.

[iThe appellant, Dawn Jones, appeals the amount of damages awarded to her in a judgment of the trial court against State Farm.

STATEMENT OF THE CASE

On June 4, 2003, Dawn Jones was injured while riding as a passenger in a vehicle driven by her husband when their vehicle was rear-ended by Dr. Robert Martinez. Ms. Jones filed suit against Dr. Martinez, his insurer State Farm Mutual Automobile Insurance Company (State Farm), and her underinsured motorist carrier Illinois National Insurance Company (Illinois National). Ms. Jones claimed she suffered an injury to her back which required surgery. Illinois National was later dismissed from the suit. Dr. Martinez passed away and was dismissed from the suit.

The trial was held on February 6, 2006. State Farm did not contest that Dr. Martinez was at fault in rear-ending the vehicle in which Ms. Jones was a passenger, though they did introduce evidence to stress the minor nature of the collision. Most of the testimony and evidence at trial concerned the extent of Ms. Jones injuries and her previous injuries in a 2000 automobile accident. Ms. Jones argued that the accident in this case aggravated her previous injuries and she now needs surgery. State Farm argued that the problems with her back were degenerative and were not caused by the low-impact collision with Dr. Martinez.

Following a bench trial, the trial court found the accident with Dr. Martinez caused soft tissue injuries which exacerbated Ms. Jones previous disc condition. The court award $31,789.02 for past medical expenses. It found that State Farm was responsible for the surgery Ms. Jones needed, and ordered State Farm to pay $95,950.00 for future medical expenses. The trial court awarded lost wages for nine 12months Ms. Jones missed work since the accident and future lost wages for nine months following the accident, totaling $59,256.00. The court refused to award damages for a loss of earning capacity. Finally, the court awarded $70,000.00 for general damages.

Ms. Jones now appeals the trial court’s failure to award damages for loss of earning capacity and the amount of general damages awarded.

ASSIGNMENTS OF ERROR

1. The trial court erred in failing to award future loss of earnings capacity even though the undisputed medical and lay testimony established that Ms. Jones would suffer a loss of earnings capacity.

2. [The award of $70,000.00 in general damages] falls far below the permissible discretionary awards and must be reversed.

DISCUSSION

The appellant’s first assignment of error concerns loss of earning capacity. This court discussed this element of damages in Batiste v. New Hampshire Ins. Co., 94-1467, p. 3-4 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ denied, 95-1413 (La.9/22/95), 660 So.2d 472 (citations omitted):

Loss of earning capacity is not the same as lost wages. Rather, earning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiffs earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiffs lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity.
In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages him in the work force. The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.
| :jThe very nature of lost earning capacity makes it impossible to measure the loss with any kind of mathematical certainty. The facts of each case must take into account a variety of factors, including the plaintiffs condition prior to the accident, his work record prior to and after the accident, his previous earnings, the likelihood of his ability to earn a certain amount but for the accident, the amount of work life remaining, inflation, and the plaintiffs employment opportunities before and after the accident.

An award of damages for future loss of earnings and loss of earning capacity is reviewed on appeal for manifest error. Fruge v. Hebert Oilfield Constr., Inc., 03-349 (La.App. 3 Cir. 10/1/03), 856 So.2d 100, writ denied, 03-2997 (La.1/30/04), 865 So.2d 77.

The trial court found that the work limitations placed on Ms. Jones are expected to be the same after surgery as they were prior to this accident. Thus, her earning capacity will not be diminished. The appellant argues that while her limitations will be the same, her tolerance for certain pain has decreased since the accident, and she will be unable to return to her job as a floor nurse. Instead, she will have to work as an administrative nurse, a job which has a lower salary. In fact, before she stopped working following the second accident, she had left her job as a floor nurse and taken a position as an administrative nurse.

The trial court accepted the testimony of • Ms. Jones’s treating physician, Dr. Dale Bernauer, that he would expect Ms. Jones to have the same limitations after the surgery as she had prior to the accident with Dr. Martinez in May 2003. Dr. William Culbertson, an economist,, did testify that if Ms. Jones returns to work as an administrative nurse after surgery, she will earn $200,000.00 less than if she were able to return to work as a floor nurse. But the import of Dr. Bernauer’s testimony, and the findings of the trial court, was that Ms. Jones would be able to work with the same limitations after the surgery as she did before the accident. Prior to that ¡^accident, Ms. Jones was able to work as a floor nurse, with certain limitations. Given the speculative nature of determining the extent of Ms. Jones abilities after the surgery, we cannot say the trial court committed manifest error in determining she did not prove a loss of earning capacity. This assignment of error lacks merit.

The appellant’s second assignment of error concerns the general damage award. Ms. Jones contends that $70,000.00 is too low an award given that she sustained injuries which aggravated a preexisting condition and now requires surgery (an anterior lumbar interbody fusion). In its reasons for ruling, the trial court stated:

The Court awards Mrs. Jones general damages in the amount of $70,000. In awarding this amount, the Court has taken into consideration that Mrs. Jones had chronic intermittent pain prior to the 2003 accident which was not caused by the negligence of Dr. Martinez. Although defendants must take their victims as they find them, they are only responsible for the extent of the aggravation caused by them negligence. The plaintiff has not proved that on her recovery from surgery, her condition will be substantially worse than her condition prior to the 2003 accident.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the supreme court set out the standard for an appellate court reviewing an award of general damages:

[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the- appellate court should increase or reduce the award.

The trial court found that Ms. Jones had a minor traffic accident with Dr. Martinez in May 2003 which caused soft tissue injuries. These soft tissue injuries combined with Ms. Jones previous condition to hasten the degeneration of her back condition. While Ms. Jones suffered pain before the May 2003 accident, her back |condition now requires surgery. As a result of the aggravation of her injuries, Ms. Jones had been unable to work for nine months because of pain. She requires surgery to return her to her pre-2003 condition, which will require her to miss approximately nine more months of work. After the surgery, the trial court found that Ms. Jones will be returned to the same condition she was in before the May 2003 accident. Thus, she is only entitled to general damages for pain and suffering for the period beginning with the accident and ending when she is recovered from the surgery, which is about three years.

We find, considering the totality of the facts, particularly the plaintiffs endurance of a surgical procedure, that the general damage award is abusively low. We are, therefore, raising the general damage award to $125,000.00, the lowest award that we consider reasonable under the circumstances. See Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

CONCLUSION

We amend the general damage award and raise it to $125,000.00. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed to State Farm.

AFFIRMED AS AMENDED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting-in part.

^The trial court erroneously determined that Ms. Jones was not entitled to an award for future loss of earning capacity. The majority affirms and falls into error as well.

Dr. Bernauer did indeed testify that Ms. Jones would have the same post and pre-surgery limitations. The similarity between post and pre-surgery limitations, however, does not translate into, in my view, a finding of a lack of entitlement to an award of loss of future earning capacity. While those limitations may be the same, one cannot conclude that Ms. Jones can functionally perform the same work. There are other factors to consider. Ms. Jones is a registered nurse; her treating physician is an orthopedist. She will undergo a lumbar fusion. Dr. Bernauer’s testimony that Ms. Jones would not be able to return as a floor nurse went uncon-troverted. She is now more susceptible to injury to her back and the risk of injury to her disk increased after surgery. Further, Dr. Bernauer testified that Ms. Jones should not have been performing the functions of a floor nurse before the accident. Certainly, with the risk of increased injury, it is unreasonable to expect her to perform the duties of a floor | .¿nurse after. In effect, the majority is penalizing Ms. Jones for her pre-accident stoicism and industriousness. It was manifest error for the trial court to have denied her an award for loss of future earning capacity.

For the foregoing reasons, I respectfully dissent.


author: THIBODEAUX, Chief Judge. PETERS, J.,

text:
    Kourtney PHILLIPS, et al. v. Cecilia OSMUN, et al.
    No. 07-50.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 24, 2007.

      Roy Seale Halcomb, Jr., Broussard, Bolton, Halcomb & Vizzier, Alexandria, LA, for Plaintiffs/Appellees, Kourtney Phillips and Edmond Bratton.
    Keith M. Borne, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendants/Appellants, Safeway Insurance Company of Louisiana and Cecilia Osmun.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, MICHAEL G. SULLIVAN,' GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| xDefendants, Cecilia Osmun (Ms. Os-mun), and her automobile liability insurer, Safeway Insurance Company of Louisiana (Safeway), appeal the trial court’s judgment awarding general and special damages to plaintiffs, Kourtney Phillips (Ms. Phillips) and Edmond Bratton (Mr. Brat-ton) as a result of an automobile collision for which Ms. Osmun was found to be 100 percent at fault after a trial on the issues of liability and damages. Safeway also appeals the trial court’s judgment awarding $5,000.00 in penalties against it in favor of Ms. Phillips because the court found that Safeway was arbitrary and capricious for not initiating loss adjustment on Ms. Phillips’s medical expenses in a timely manner.

For the following reasons, we affirm the trial court’s judgment awarding damages to both Mr. Bratton and Ms. Phillips. However, because the trial court abused its discretion in awarding $5,000.00 in penalties to Ms. Phillips against Safeway, the judgment awarding penalties to Ms. Phillips is reversed.

I.

ISSUES

Ms. Osmun and Safeway raise three issues on appeal:

1. the trial court erred by awarding general damages to Ms. Phillips in the amount of $12,000.00 and $2,000.00 for future medical expenses;
2. the trial court erred by awarding $12,000.00 in general damages to Mr. Bratton; and,
3. the trial court erred by awarding Ms. Phillips $5,000.00 in penalties per La.R.S. 22:1220 from Safeway because it did not timely initiate loss adjustment of her medical expenses as required by La.R.S. 22:658(A)(3).

J¿L

FACTS

A head-on collision occurred between the vehicle being driven by Mr. Bratton and the vehicle owned and driven by Ms. Osmun on March 27, 2004. Ms. Phillips was a passenger in Mr. Bratton’s vehicle. As a result of that collision, both Ms. Phillips and Mr. Bratton sustained injuries.

Ms. Phillips was taken to a local emergency room and released. She then underwent treatment with a physician for two months, which included approximately two weeks of physical therapy. Her physician placed a note in her chart that she was experiencing no pain nor did she have any further symptoms of injury when he released her from treatment. While she had not sought any further medical care, she was complaining of continuing pain in her back at the time of trial.

Mr. Bratton’s left hand hit the windshield of the car as a result of the impact with Ms. Osmun’s vehicle. His hand was cut in a number of places. Pieces of glass from the windshield had to be removed from some of the wounds. Photos of his vehicle reveal blood on his air bag from his injured hand, and that the windshield was shattered from the impact of his hand.

Safeway was contacted by the plaintiffs approximately three to four days after the accident. Within forty-eight hours of receiving that notification, an adjuster for Safeway attempted to reach both plaintiffs by phone. Safeway then sent both Ms. Phillips and Mr. Bratton packets containing letters asking each of them to contact Safeway regarding the accident and their injuries. The packets also contained ‘bodily injury letters,’ asking each plaintiff to forward all medical bills and records to Safeway when their treatment was completed so that settlement of their claim could begin. Those packets were sent on March 31, 2004.

| ;!Ms. Phillips and Mr. Bratton retained an attorney within one week of the collision. Their attorney contacted Safeway informing the company that all medical bills and claims would come from the attorney, and that all correspondence about the claim should be received by the attorney. The claim for damage to Mr. Brat-ton’s vehicle was settled without incident or complaint.

Medical bills were sent to Safeway by the plaintiffs’ attorney on June 18, 2004, and received by Safeway on June 21, 2004. Safeway alleges that the medical bills did not come with an attendant settlement demand as Safeway requested of the plaintiffs’ attorney. More medical bills were sent on three other occasions to Safeway. On October 12, 2004, a demand for settlement was sent to Safeway by the plaintiffs’ attorney. While Safeway responded to this demand and attempted to conclude the loss adjustment on the medical bills and general damages claims at that time, the plaintiffs’ attorney filed suit for damages and penalties.

The trial court found in favor of Ms. Phillips and Mr. Bratton. Ms. Phillips was awarded general damages in the amount of $12,000.00. She was also awarded special damages for past medical expenses in the amount of $2,657.32, future medical expenses in the amount of $2,000.00, and lost wages in the amount of $432.50. Mr. Brat-ton was awarded general damages in the amount of $12,000.00. The trial court also awarded $5,000.00 in penalties against Safeway in favor of Ms. Phillips for its failure to timely initiate loss adjustment of her claim for medical expenses, finding that this late payment was arbitrary and capricious pursuant to La.R.S. 22:1220.

JJII.

LAW AND DISCUSSION

Standard of Review

We note that neither Ms. Osmun nor Safeway raise the issue of liability on appeal. Therefore, the trial court’s determination that Ms. Osmun was 100% at fault for the accident will not be discussed.

An award for general damages compensates an injury victim for the less specific injuries that accompany physical trauma. These injuries are not as easily confined to exact bills.

General damages are those which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms.” Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993).

Duncan v. Kansas City S. Ry. Co., 00-66, p. 13 (La.10/30/00), 773 So.2d 670, 682, writ dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001).

An appellate court can only change an award of general damages if it finds that the trial court abused the great discretion vested in it to determine such damage awards. Id.

Importantly, on review, an appellate court should rarely disturb an award of general damages because “the discretion vested in the trier of fact is ‘great,’ and even vast.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the trier of fact has abused its much discretion that the appellate court may disturb the award, but then only to the extent of lowering it to the highest point or raising it to the lowest point which was reasonably within the discretion of the trier of fact. Id. However, this principle of appellate review applies only when a litigant “questions the adequacy of a monetary award in a case which is otherwise | .^uncomplicated by factual errors relating to the cause or duration of the plaintiffs disability.” Mart v. Hill, 505 So.2d 1120, 1128 (La.1987).

Basco v. Liberty Mut. Ins. Co., 05-143, p. 9 (La.App. 3 Cir. 8/17/05), 909 So.2d 660, 666.

Therefore, we will review the record in its entirety to determine if the trial court abused its vast discretion, and not to determine what this court would award if reviewing the case de novo. “ ‘[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.’ Wainwright v. Fontenot, 000492 (La.10/17/00), 774 So.2d 70, 74 (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994)).” Mouhot v. Twelfth St. Baptist Church, 06-1283, p. 4 (La.App. 3 Cir. 2/7/07), 949 So.2d 668, 671.

Did the Trial Court Abuse its Vast Discretion by Awarding Ms. Phillips $12,000.00 in General Damages and $2,000.00 For Future Medical Expenses?

General Damage Award

Testimony and evidence in the record establish that Ms. Phillips was a relatively healthy young woman with no reported injuries, aches or pains before the accident with Ms. Osmun. After the accident there is both subjective and objective evidence in the record showing that, she sustained injuries to her knees, neck and back. The injury to her back required ongoing medical treatment that included physical therapy for at least two months.

Her physician, Dr. Robert K. Rush, testified that he diagnosed Ms. Phillips with lumbar strain, post-traumatic headaches, trauma to her knees, and muscle spasms in her lower back. He stated that muscle spasms are indicative of soft | ^tissue muscle and ligament injury which usually means that there has been tearing of those tissues with subsequent inflammation.

Dr. Rush felt that Ms. Phillips’s complaints regarding pain during prolonged sitting, standing or repetitive bending were consistent with a diagnosis of lumbar strain. He also testified that the injury and resulting pain were more likely than not a result of the car accident. Dr. Rush described Ms. Phillips as a sincere young lady. He had no reason to believe that her complaints were either embellished or misleading.

Because there is ample evidence in the record which supports the trial court’s award of $12,000.00 in general damages to Ms. Phillips, we affirm the judgment of the trial court.

Future Medical Expenses

Future medical expenses are a component of special damages and must be proven by a preponderance of the evidence. Basco v. Liberty Mut. Ins. Co., 05-143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660. To recover future medical expenses, the plaintiff must present medical testimony to show that it is more probable than not that future medical treatment is indicated and the probable cost of the treatment. Id.

Smith v. Municipality of Ferriday, 05-755, p. 11-12 (La.App. 3 Cir. 2/1/06), 922 So.2d 1222, 1231, writ denied, 06-934 (La.9/29/06), 937 So.2d 860.

While Dr. Rush discharged Ms. Phillips from treatment on June 9, 2004 stating that her injuries had resolved, Ms. Phillips testified at trial that she was still experiencing back pain as a result of the car accident. The trial court found her to be a credible witness and believed that she was still having pain. The trial court’s determination of her credibility must be given great deference, and cannot be overturned by this court absent a showing of manifest error. Id.

|7Pr. Rush stated that it was not uncommon for complicated or more severe lumbar strains to continue to cause the patient pain long after the usual eight to twelve weeks that a non-complicated tissue injury might take to resolve. He said that patients will have good days and bad days depending on the kind of activity pursued that day. He postulated that Ms. Phillips’s ongoing pain could likely be the result of a ligamentous injury with resulting instability, or perhaps degenerative disc disease which was now becoming symptomatic.

Dr. Rush suggested that the best course of action for Ms. Phillips to pursue would be to undergo a spine motion flouroscopy study and a magnetic resonance imaging (MRI) of her lower back. He said that both of those tests would be needed to help diagnose and treat her ongoing pain. He estimated that the cost of those two tests combined would be approximately $2,000.00. His estimates were based on his experience and familiarity with both of those tests.

It was not manifest error for the trial judge to award Ms. Phillips $2,000.00 for future medical expenses based on Dr. Rush’s estimates of the costs of those tests. Given the possibility that the results of the two tests may require Ms. Phillips to undergo more medical treatment and care, $2,000.00 was a conservative and reasonable award. The trial court’s award of $2,000.00 to Ms. Phillips for future medical expenses is affirmed.

Did the Trial Court Abuse its Vast Discretion by Awarding Mr. Bratton $12,000.00 in General Damages?

Mr. Bratton presented a number of photos of his left hand evidencing the cuts and scars he sustained from the accident. He testified that he did not have any scarring on his left hand before the accident. He also stated that the injuries were still sore and tender to the touch. Mr. Bratton had significant scarring on his left hand as lsof the date of trial. He stated that he was self-conscious about his scars when people looked at them. His appearance plays a role in his work, which is selling and delivering products to customers.

Both he and Ms. Phillips talked about the serious nature of his injuries. In order to be awarded general damages, he does not need to submit medical bills. General damages reimburse an injured party for pain and suffering. Duncan v. Kansas City S. Ry. Co., 773 So.2d 670. There was ample evidence in the record of Mr. Bratton’s pain and suffering as a result of the injuries he sustained from the accident. The trial court did not abuse its discretion in awarding general damages to Mr. Bratton because of the injuries he sustained and the scarring and pain he currently lives with. The trial court’s award of general damages to Mr. Bratton in the amount of $12,000.00 is affirmed.

Did the Trial Court Commit Manifest Error by Awarding Ms. Phillips $5,000.00 in Penalties from Safeway Because Safeway Did Not Initiate Loss Adjustment of Ms. Phillips’s Medical Expenses in a Timely Manner?

A trial court’s determination that statutory penalties are in order is largely based on that court’s factual conclusions which we review under the manifest error standard. “Because the decision to assess statutory penalties is a factual determination, in part, we review the trial court’s assessment of penalties against Safeway under the manifest error standard of review. We acknowledge that since the pertinent statutes subject insurers to penalties, we must construe them strictly.” Joubert v. Broussard, 02-911, pp. 1-2 (La.App. 3 Cir. 12/11/02), 832 So.2d 1182, 1184, writ denied, 03-60 (La.3/21/03), 840 So.2d 552.

The penalty assessed against Safeway is based on the trial court’s determination that La.R.S. 22:658(A)(3) was violated by the insurer. The statute reads, in pertinent part, as follows:

|q(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.

La.R.S.22:658(A)(3).

The penalties that can be assessed for violation of La.R.S. 22:658(A)(3) are statutorily provided.

§ 1220. Good faith duty; claims settlement practices; cause of action; penalties
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:
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
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, whichever is greater. Such penalties, if awarded, shall not be used by the insurer |10in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

La.R.S. 22:1220(A)-(C).

An insurer must take some action of substance in order for a court to consider that the insurer has initiated loss adjustment.

In initiating loss adjustment, the insurer must take some substantive and affirmative step to accumulate the facts that are necessary to evaluate the claim. Chatoney v. Safeway Insurance Company, 00-1189, (La.App. 3 Cir. 6/13/01) 2001 WL 665207, 801 So.2d 448. McClendon v. Economy Fire & Casualty Insurance Company, 98-1537 (La.App. 3 Cir. 4/7/99) 732 So.2d 727, 731. Simply opening a file does not satisfy the requirement of La.R.S. 22:658(A)(3) that an insurer initiate loss adjustment.

Rogers v. Commercial Union Ins. Co., 01-443, p. 8 (La.App. 3 Cir. 10/3/01), 796 So.2d 862, 868.

In Joubert, this court determined that the insurer’s act of internally checking its own files to determine if the claimant was insured at the time of the accident did not constitute initiating loss adjustment. In Rogers, we concluded that making and receiving phone calls did not rise to the level of initiating loss adjustment either. “We note that Economy’s action of simply opening a file does not satisfy the requirement of La.R.S. 22:658(A)(3) that the insurer initiate loss adjustment. We interpret this provision to require that the insurer take some substantive and affirmative step to accumulate the facts that are necessary to evaluate the claim.” McClendon v. Economy Fire & Cas. Ins. Co., 98-1537, p. 7 (La.App. 3 Cir. 4/7/99), 732 So.2d 727, 731.

In this case, Safeway did more than open a file or make and receive phone calls. Steps were taken to accumulate the facts needed to process the claim. A packet was sent to both plaintiffs forty-eight hours after Safeway was informed about the accident. Safeway communicated with Ms. Phillips through her lawyer as 1 nrequested, and repeatedly asked for a demand letter when all medical treatment was completed and bills were ready for payment.

The record shows that Ms. Phillips’s attorney sent her medical bills to Safeway in installments. While most of the letters sent with those installments stated that the bills were being presented for payment, the letters did not state that the treatment was completed and that a formal demand was being made.

Safeway’s claims adjuster testified that Safeway has a policy to request a demand letter when all medical treatments are complete for all medical expense claims. The reason it wants a demand letter is to signal that it is time to review the file and begin settlement discussions. Without a formal demand letter, Safeway cannot be sure that a demand for payment is being made.

On October 14, Safeway received a formal demand letter from Ms. Phillips’s attorney for payment of all medical expenses. Within five days of receipt of that demand letter, the claims adjuster reviewed Ms. Phillips’s file with a supervisor, who then contacted Safeway’s general counsel, and a letter offering settlement of all medical claims was sent to Ms. Phillips’s attorney.

Safeway contends that it met the statutory requirement of initiating loss adjustment within fourteen days of notice of the claim. It also contends that settlement negotiations began within five days of receipt of a demand letter. We agree. .Safeway did more than place and receive calls, and open a file. Safeway was actively corresponding with Ms. Phillips regarding her claim for medical expenses, and was consistently asking for a demand letter when medical treatment was completed. Safeway was taking steps to gather the information needed to evaluate and process Ms. Phillips’s claim for medical expenses. Safeway was not arbitrary and capricious. The insurer was consistently seeking information and a formal demand. | i-?The trial court’s judgment awarding Ms. Phillips $5,000.00 in penalties against Safeway for not timely initiating loss adjustment is reversed.

IV.

CONCLUSION

A trial court’s award of general damages, future medical expenses, and penalties is reviewed by an appellate court for an abuse of the trial court’s vast discretion or manifest error. There were ample facts in the record to support the trial court’s award of $12,000.00 in general damages and $2,000.00 for future medical expenses to Ms. Phillips. Likewise, the record supports as reasonable the trial court’s judgment awarding $12,000.00 in general damages to Mr. Bratton. These damage awards are affirmed.

The trial court’s interpretation of Safeway’s actions as arbitrary and capricious because the insurer did not timely initiate loss adjustment is not supported by the record. The record reflects that Safeway took actions which met the legal requirement of initiating loss adjustment pursuant to La.R.S. 22:658(A)(3). Therefore, the portion of the trial court judgment awarding Ms. Phillips $5,000.00 in penalties is reversed.

The costs of this appeal are split between the plaintiffs, Ms. Phillips and Mr. Bratton, and the defendants, Ms. Osmun and Safeway. The plaintiffs are cast with one-third of the costs of this appeal. The defendants and are cast with two-thirds of the costs of this appeal.

AFFIRMED IN PART; REVERSED IN PART.

PETERS, J., concurs in part, dissents in part and assigns written reasons.

PETERS, J.,

concurring in part and dissenting in part.

_JjI agree with the majority in all respects' except the conclusion that the trial court erred in awarding Kourtney Phillips $5,000.00 in penalties from Safeway Insurance Company of Louisiana (Safeway). I would affirm the trial court’s factual finding that Safeway did not initiate loss adjustment of Ms. Phillips’s medical expenses within fourteen days of notification of loss, as required by La.R.S. 22:658(A)(3).

The accident that caused the plaintiffs’ injuries occurred on March 27, 2004, and Safeway received notice of the claim almost immediately. As the majority notes, within forty-eight hours of receiving notice of the claim, an adjuster for Safeway attempted to reach the plaintiffs by phone, and on March 31, 2004, Safeway sent the plaintiffs packets containing letters asking each of them to contact Safeway regarding the accident and their injuries. These packets contained letters requesting that the plaintiffs forward all medical bills and records to Safeway when their treatment was completed, so that settlement of their claims could begin.

On April 7, 2004, plaintiffs’ retained counsel forwarded Safeway a letter advising of his representation. At trial, Lane Kirk Jude Stelly, a claims adjuster at Safeway, testified that Safeway responded to that letter by requesting that counsel send Safeway all the medical bills and a demand packet for injuries sustained in the 12accident. However, no such letter was introduced into evidence, and Safeway’s activity log, which details the actions taken on Ms. Phillips’s claims, does not indicate .that such a response was sent. The plaintiffs’ attorney sent Safeway a letter on June 18, 2004, attaching Ms. Phillips’s medical reports and medical bills “enclosed for payment.” The plaintiffs’ attorney sent Safeway letters and medical bills on July 2, 2004, July 14, 2004, and August 12, 2004. On October 12, 2004, the plaintiffs’ attorney sent Safeway a formal demand letter for payment of all Ms. Philips’s medical expenses. At that point a claims adjuster reviewed the file, and Safeway contacted Ms. Phillips’s attorney with an offer to settle all medical claims.

Louisiana Revised Statute 22:658(A)(3) requires an insurer to initiate adjustment of a claim within fourteen days after notification of the loss. Here, Ms. Phillips notified Safeway of the accident on March 30 or 31, 2007, and first sent in |o,a claim for medical expenses on June 18, 2004. From that time until October 12, 2004, Safeway’s only actions were to open a file and to send first Ms. Phillips and then her retained counsel a letter, stating that it would not take any action on her claim for medical expenses until all medical treatment was complete and she or her attorney sent a demand letter to that effect. In fact, at the trial Safeway’s claim adjuster testified that when Safeway receives medical expense claims, its policy is to wait to review the file and begin settlement discussion until a claimant submits a demand letter stating that all medical treatments are complete.

The statute’s mandate that loss adjustment be initiated requires that “the insurer take some substantive and affirmative step to accumulate the facts that are necessary to evaluate the claim.” McClendon v. Econ. Fire & Cas. Ins. Co., 98-1537, p. 7 (La.App. 3 Cir. 4/7/99), 732 So.2d 727, 731. This court has held that an insurance company has not satisfied the requirements of La.R.S. 22:658(A)(3) when the insurance company had opened a file and informed the plaintiffs that it “was going to deal with the damaged personal property only after the other property damage claims were handled.” Hollier v. State Farm Mut. Auto. Ins. Co., 01-592, p. 5 (La.App. 3 Cir. 10/31/01), 799 So.2d 793, 797.

In this almost identical situation, where Safeway adhered to its policy that it would not review the claim or begin settlement discussions until all medical treatment had been completed, I would follow Hollier, affirm the trial court’s factual finding that Safeway had not taken a substantive and affirmative step to accumulate the facts that are necessary to evaluate the claim, and affirm the trial court’s judgment awarding Ms. Phillips $5,000.00 in penalties under La.R.S. 22:1220.

      . The June 18, 2004 letter states, in pertinent part:
      Enclosed are copies of the following medical records: Medical reports of Dr. Robert K. Rush dated April 7, 2004 and June 9, 2004, covering his treatment of Ms. Phillips; and, records of Guidroz Physical Therapy covering treatment of Ms. Phillips from May 5, 2004 through May 21, 2004. Also enclosed for paj'ment are the following medical bills: Dr. Robert K. Rush for treatment of Ms. Phillips from April 7, 2004 through May 11, 2004, in the amount of $220.00; Guidroz Physical Therapy for treatment of Ms. Phillips from May 5, 2004 through May 21, 2004, in the amount of $680.00 of which $35.00 is for the enclosed medical records; St. Frances Cabrini Hospital for treatment of Ms. Phillips on March 27, 2004 in the amount of $750.00; and, Eckerd Drugs for medication purchased by Ms. Phillips in the amount of $104.12. Also enclosed for payment is the bill of Source Corp for the enclosed records from Cabrini Hospital in the amount of $29.06. I am also enclosing a letter from Ms. Phillips' employer, Comfort Inn, verifying her employment, her rate of pay and the days of work that she missed as a result of her injuries.

      . The July 2, 2004 letter states, in pertinent part: "Enclosed for payment is die bill of Acadian Ambulance Service in the amount of $610.20.''

      . The July 14, 2004 letter states, in pertinent part: “Enclosed for payment is the bill of Central La. Imaging in the amount of $81.00 for treatment of Ms. Phillips on March 27, 2004.”

      . The letter of August 12, 2004 states, in pertinent part:
      Enclosed for payment is the bill of Christus St. Francis Cabrini Hospital in the amount of $750.00 for treatment of Ms. Phillips on March 27, 2004. Also enclosed is a copy of a certified copy of the records of Christus St. Francis Cabrini Hospital covering Ms. Phillips [sic] treatment in the emergency room on March 27, 2004.