author: DENNIS R. BAGNERIS SR., Judge. ARMSTRONG, C.J., JONES, J.,

text:
    Deborrah MUNCH v. Nicholas BACKER and United Services Automobile Association.
    No. 2004-CA-1136.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2007.
    Terry B. Loup, Morris Bart, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Timothy G. Schafer, Schafer & Schafer, New Orleans, LA, for Defendant/Appellee.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD and Judge LEON A. CANNIZZARO, JR.).
   ON REMAND FROM THE LOUISIANA SUPREME COURT

DENNIS R. BAGNERIS SR., Judge.

_JjWe have this matter on remand from the Louisiana Supreme Court. Our decision of May 31, 2006, affirming the trial court’s judgment (Munch v. Backer, 2004-1136 (La.App. 4th Cir.5/31/06) 932 So.2d 759) was remanded to us “for consideration of plaintiffs claim of error during jury selection in light of our holding in Alex v. Rayne Concrete Service, 2005 - 1457 c/w 2344 c/w 2520 (La.1/26/07), 951 So.2d 138.” In our prior decision, we did not entertain plaintiffs complaint about jury selection because the law in this circuit, at that time, mandated that a Bat-son/Edmonson challenge in a civil trial be reviewed on writ and not an appeal after the judgment is final. However, in Alex, the Louisiana Supreme Court held that a Batson/Edmonson challenge may be considered on appeal following the conclusion of the trial or on supervisory writ application. Id. As such, we will now address the issue of whether the trial court committed manifest error when it prevented plaintiff from exercising peremptory challenges to three jurors based on Batson/Edmonson.

In Alex, the Louisiana Supreme Court stated the law in regard to the Batson/Edmonson objections raised during the jury selection process as follows: The Equal Protection Clause of the United States Constitution prohibits engaging in purposeful discrimination on the grounds of race Lin the exercise of peremptory challenges. Batson [v. Kentucky], 476 U.S. [79] at 89, 106 S.Ct. [1712] at 1719[, 90 L.Ed.2d 69(1986)]; State v. Snyder, 98-1078 (La.9/6/06), 942 So.2d 484. (Footnote omitted) As we recently explained in State v. Snyder, supra, the Supreme Court has redes-cribed the three-step Batson process which guides the courts examination of peremptory challenges for constitutional infirmities, as follows:

A defendants Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensive reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Internal quotations and citations omitted.]

Id. at 150-151

Our review of the record reflects -that the defendant never made a Batson/Ed-monson objection; rather, the trial judge merely ruled that plaintiffs use of peremptory challenges on three jurors was improper. As stated in the record:

THE COURT: No. 4, defendants?
MR. LOUP: Objection. Excused.
THE COURT: Five, plaintiff?
MR. UOUP: Excused.
THE COURT: Okay, 6, defendants?
MR. SCHAFER: Acceptable.
LTHE COURT: Six, plaintiff?
MR. LOUP: Excused.
THE COURT: Tell me why you excused No. 4.
MR. LOUP: Because she’s a teacher. • ,
THE COURT: And?
MR. LOUP: I don’t want any teachers on the jury.
THE COURT: Why did you excuse No. 5?
MR. LOUP: Because he took pictures of the defense counsel’s children’s house.
THE COURT: And No. 6?
MR. LOUP: When I was observing her, she was looking very unhappy on the questions about frivolous lawsuits; in favor of or in agreement with the frivolous lawsuit statement. So that’s why I excused her.
THE COURT: Okay, I think you struck them all because they are white. They are on your panel, okay?
MR. LOUP: Excuse me, Your Honor?
THE COURT: They, are on your panel.

Plaintiff wished to utilize a peremptory challenge for: (1) Ms. Marconi-Haessig (Juror #4) because she was a grammar school teacher (as was.the defendant) and because she told the court she would be distracted because she needed to be in her classroom for LEAP testing; (2) Edgar Smith (Juror # 5) because he was insured by USAA (the same company named as a Defendant in these proceedings) and because he knew and did artistic work for defense counsel’s son (who was also counsel of record); and (3) Brenda Hornyan (Juror # 6) Rbecause she was a member of the staff of the University of New Orleans, where plaintiff obtained a graduate degree.

. After reviewing the record, we agree with plaintiff that defendant failed to meet the test as set forth by the Supreme Court in Alex. Specifically, there is nothing in the record establishing defendant made a pri-ma facie case that plaintiff exercised a peremptory challenge based on race as to Jurors #4, #5, and # 6, as evidenced by the fact that defendant did not even make a Batson/Edmonson objection. Further, when questioned briefly by the trial judge for reasons, the plaintiff gave, on its face, racially neutral reasons for exercising the peremptory challenges. The trial judge failed to perform the third step of the Batson/Edmonson analysis, namely to decide if defendant carried his burden of proof of proving “purposeful discrimination;” rather, the trial judge merely ruled from the bench that plaintiff “struck them all because they are white.” For these reasons, we find that the trial court committed manifest error by, sua sponte, refusing to allow plaintiff to exercise her peremptory challenges to these three jurors.

The second issue addressed by plaintiff in her supplemental brief on remand is whether this case should be remanded to the trial court for a new trial, or instead be decided by this court. In Alex, three justices agreed that the proper procedural remedy after finding a defect in the jury selection process is to remand to the trial court for a new trial; one justice only agreed to remand to the trial court in order to allow the case to move forward; and three other justices took no position on the issue of remand for a new trial because they found no error in the jury selection process. Although plaintiff asks this Court to consider whether, given the facts presented in this case, a majority of the justices of the Supreme Court would order | ¿remand to the trial court for a new trial or remand to the Court of Appeal for a de novo review of liability and damages, we cannot grant the relief plaintiff seeks. This Court cannot engage in rendering advisory opinions or otherwise issue an opinion based on prediction. At this time, we read the Supreme Court decision in Alex to mean that a remand to the trial court is necessary since , the majority decision remanded the case to the trial court after finding error in the jury selection.

For the reasons stated above, we vacate our original opinion and judgment affirming the trial court. The judgment of the trial court is hereby reversed and this case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED; REMANDED TO THE TRIAL COURT.

ARMSTRONG, C.J., concurs.

JONES, J., concurs with reasons.

ARMSTRONG, C.J.,

concurring.

bln view of Alex v. Rayne Concrete Service, 05-1457 c/w 2344 c/w 2520 (La.1/26/07), 951 So.2d l38, I feel compelled' to respectfully concur in the result reached by the majority.

JONES, J.,

concurring with reasons.

hi respectfully concur. The district court did not err in objecting to plaintiff counsel’s Batson/Edmondson exclusions with respect to the three prospective jurors at issue. Further, I find no error with respect to remanding the matter to the district court.

However, I write separately to emphasize that the district court, observing what the Court thinks is a violation of Federal and State constitutions, has a fundamental right, without the objection of a party, to call into question impermissive conduct. Thus, the conduct of the district court was quite proper in questioning whether plaintiffs counsel, in striking prospective jurors, was acting in a manner consistent with law.

      . The Louisiana Supreme Court noted in Footnote 11 that this law applies to civil cases.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, SR., Judge. LOVE, J., CANNIZZARO, J.,

license: Public Domain

text:
    Javier ORELLANA v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2007-CA-1095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2007.

      Mark P. Glago, Glago Law Firm, L.L.C., and Anthony D. Irpino, Irpino Law Firm, L.L.C., New Orleans, LA, for Plaintiff/Ap-pellee.
    Shawn M. Roussel, Hulse & Wanek, APLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR., and Judge ROLAND L. BELSOME).
   DENNIS R. BAGNERIS, SR., Judge.

| defendant, Louisiana Citizens Property Insurance, appeals a judgment of the trial court, which found in favor of Plaintiff, Javier Orellana, and awarded $87,500.00 for dwelling property damages as well as $125,000 in general damages. For the following reasons, we affirm.

FACTS:

This suit arises out of the property damages suffered by Plaintiff to his duplex located at 631-33 S. Solomon Street, New Orleans, Louisiana, as a result of Hurricane Katrina. At the time of the August 29, 2005 storm, Plaintiff had a homeowner’s policy of insurance with Defendant, Louisiana Citizens Property Insurance Corporation (hereinafter “Louisiana Citizens”), with policy limits of $144,000.00 for dwelling. There was no coverage for contents or loss of use.

As a result of Hurricane Katrina, Plaintiff sustained wind and rain damage to his house. In November of 2005, Plaintiff reported his claim to Louisiana Citizens. Thereafter, Louisiana Citizens sent out its adjuster, Bradford Knight, to do an inspection of the premises. Mr. Knight submitted his estimate in the amount of $48,181.84 to Louisiana Citizens on December 14, 2005; however, Louisiana Citizens did nothing and paid nothing to Plaintiff. On August 3, 2006, Plaintiffs ^expert, James Simpson, estimated the wind and rain damages to be $103,635.51. Mr. Simpson’s estimate was submitted to Louisiana Citizens on August 16, 2006; however, Louisiana Citizens did nothing and paid nothing to Plaintiff. On March 1, 2007, Louisiana Citizens sent a new adjuster, Don May, to Plaintiffs home to do a re-inspection. The re-inspection estimated the wind and rain damages to be $80,594.41; however, again, Louisiana Citizens did nothing and paid nothing.

After a one day bench trial, the trial court found in favor of Plaintiff and against Louisiana Citizens. The trial judge awarded Plaintiff $87,500.00 for dwelling property damages, plus interest and cost, as well as $125,000.00 in general damages for Plaintiffs “mental anguish, stress, and inconvenience sustained as a result of Louisiana Citizens’ bad faith failure to properly and timely adjust this claim.” Louisiana Citizens now appeals this final judgment.

DISCUSSION

Louisiana Citizens briefed three assignments of error arguing that: (1) the trial court erred in awarding general damages for mental anguish in contravention of La. C.C. Art.1998; (2) the trial court erred in awarding general damages for mental anguish because the claim does not rise to the level necessary for an award of mental anguish damages under Louisiana jurisprudence; and (3) in the alternative, if this Court re-characterizes the general damage award as a penalty pursuant to La R.S. 22:1220, the trial court erred in failing to recognize that, ^pursuant to its founding legislation and the overall legislative intent thereof, Louisiana Citizens is immune from the penalty provisions of the Insurance Code.

The thrust of Louisiana Citizens’ arguments goes to the issue of whether a trial court, after finding a breach of the duty to act in good faith, may award general damages sustained as a result of the breach. The trial court, in its reasons for judgment, states, in pertinent part:

Finally, the Court awards Plaintiff general damages for his mental anguish, stress, and inconvenience sustained as a result of Louisiana Citizens’ bad faith to properly and timely adjust this claim. See La. R.S. Art. 22:1220(C). Mr. Orel-lana testified that, since he was not given any money from his insurer to repair his house, he and his mother have had to live with various friends and relatives. To this day, which is over a year and a half after the storm, they still live in a FEMA trailer in front of the subject residence of 631-33 S. Solomon Street. Mr. Orellana testified that his two children, who are ages 13 and 25, came to stay with him in the FEMA trailer and were extremely uncomfortable. This has caused strained relations between Plaintiff and his mother, and between Plaintiff and his two children.
Further, because Plaintiff has not received any timely insurance payments, he has been forced to piece-meal his home repairs. Plaintiff has been forced to hire various independent laborers to do the repairs to his home, rather than just hiring a general contractor and have the contractor deal with the “headaches” of doing the renovation. Further, the financial burden of having to come out of pocket for his home repairs on such a limited budget has caused Plaintiff emotional strain. In fact, Plaintiff testified that the reason his home is not complete and livable is because he did not have enough money to pay the workers and they left the job-site. The Court finds Plaintiffs testimony regarding his emotional distress to be very credible. Had Louisiana Citizens actions not been so arbitrary and capricious in their failure to pay Plaintiffs claim in a timely manner, Plaintiff could have rebuilt his house in a timely manner and the strained relationships Plaintiff has had to endure with his family and the emotional distress described herein could have been avoided. Accordingly, the Court awards Plaintiff $125,000 in general damages. See National Union Fire Insurance Company of Louisiana v. Harrington, 2002-832 (La.App. 3 Cir.2003), 854 So.2d 880.

La. R.S. 22:1220. Good faith duty; claims settlement practices; cause of action; penalties, states, in pertinent part:

14A. 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:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.
(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 in computing either past or prospective loss experience for the purpose of setting rates or making rate filings, (emphasis added)

La. R.S. 22:1220 clearly states that an insurance company may be assessed general and special damages for breach of the imposed duty, and may be assessed penalties in addition. In this case, the trial court made a finding that Louisiana Citizens acted in bad faith for its failure to properly and timely adjust Plaintiffs claim. We find no error in this finding, especially in light of the fact that findings of fact of the trial court are given great weight and are only overturned if manifestly erroneous or clearly wrong. See Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993).

| ¡-.Further, this Court, in Blache v. Jones addressed the issue of whether a homeowner can recover for mental anguish caused by property damage. Specifically, this Court stated:

In Louisiana, an award for mental anguish resulting from property damage is permissible in limited situations: (1) when property is damaged by an intentional or illegal act; (2) when property is damaged by acts for which the tortfea-sor will be strictly or absolutely liable; (3) when property is damaged by acts constituting a continuing nuisance; or (4) when property is damaged when the owner is either present or nearby and suffered a psychic trauma as a direct result. First of Georgia Insurance Co. v. Cohen, 398 So.2d 1209 (La.App. 4th Cir.1981); Turgeau v. Pan American World Airways, 764 F.2d 1084 (5th Cir.1985).

Blache v. Jones, 521 So.2d 530, 531 (La. App. 4 Cir. 2/10/88).

In this case, Plaintiff has had to watch his home sustain ongoing damage as a result of Louisiana Citizens’ decision to not pay timely insurance payments, which qualifies the case under subsection (1). Had Louisiana Citizens actions not been so arbitrary and capricious in its failure to pay Plaintiffs claim, Plaintiff could have prevented further deterioration of the home and/or allowed Plaintiff the opportunity to properly rebuild. The trial court observed the testimony of the Plaintiff and found that the Plaintiff was very credible. We find nothing in the record to indicate that the award of $125,000.00 was beyond the “great, even vast” discretion of a trier of fact in fixing such a damage award. See Youn v. Maritime Overseas Corp., 623 So.2d 1257,1261 (La.1993).

Although Louisiana Citizens argues that it is immune from the ramifications of La. R.S. 22:1220, we find no merit in this assignment of error. We have been unable to find any statute that gives immunity to Louisiana Citizens from being [fiassessed damages pursuant to La. R.S. 22:1220. For these reasons, we affirm the judgment of the trial court, which awarded Plaintiff $87,500.00 for dwelling property damages as well as the general damage award for $125,000.00.

AFFIRMED.

LOVE, J., Concurs in Part and Dissents in Part and Assigns Reasons.

CANNIZZARO, J., Dissents and Assigns Reasons.

LOVE, J.,

concurring in part and dissenting in part.

1H respectfully dissent in that I do not find that general damages were properly awarded. I concur with the majority that Louisiana Citizens Property Insurance Corporation (LCPIC) is not immune from penalties and its actions are compensable as such pursuant to La. R.S. 22:1220.

I find the majority’s reliance on Blache v. Jones, 521 So.2d 530 (La.App. 4th Cir. 1988), distinguishable and inapplicable to the case sub judice. Blache addresses mental anguish claims available from delic-tual based actions on property damage as opposed to damages regarding contractual matters.

“Laws on the same subject matter must be interpreted in reference to each other.” La. C.C. art. 13. Two laws in Louisiana pertain to damages for nonpeeuniary losses. The Louisiana Insurance Code section on unfair trade practices contains La. R.S. 22:1220, which provides that “[a]ny insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.” La. R.S. 22:1220. Further, the statute affords that an insurer who breaches his duty to an insured is required to pay “any general or special damages to which a claimant is entitled.” La. R.S. 22:1220. In conjunction, the Louisiana Civil Code’s section on conventional obligations or contracts contains a specific provision regarding the award of damages for nonpeeuniary losses resulting from a Lbreach of contract. If the contract breached is not “intended to gratify a non-pecuniary interest,” damages for nonpecu-niary losses “may be recovered ... when the obligor intended, through his failure, to aggrieve the feelings of the obligee.” La. C.C. art.1998.

An insurance policy is a contract. La. C.C. art.1906. The object of an insurance contract is the payment of money. Dixon v. First Premium Ins. Group, 05-0988, p. 16 (La.App. 1 Cir. 3/29/06), 934 So.2d 134, 146. While La. R.S. 22:1220 permits the award of special damages, La. C.C. art. 1998 specifically limits remuneration to nonpeeuniary losses resulting from contracts for nonpeeuniary interests. The majority opinion addresses Mr. Orellana alleged damages, but lacks evidence of the LCPIC’s actions that would demonstrate the intent to intentionally aggrieve Mr. Orellana, as required by La. . C.C. art.1998.

La. R.S. 22:1220 permits the award of penalties “assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.” La. R.S. 22:1220. La. R.S. 22:1430.5 provides the LCPIC with partial immunity from liability. However, the statute does not specifically protect the LCPIC from an assessment of penalties. The legislature demonstrated a direct intent to exclude the Insurance Guaranty Association Fund (“IGAF”) from liability for general and special damages. See La. R.S. 22:1220. While La. R.S. 22:1430.5 grants immunity to the Louisiana Insurance Rating Commission, its staff, the LCPIC’s governing board, etc., the statute does not grant immunity from penalties directly to the LCPIC or the Louisiana Citizens Fair Plan or express the legislature’s intent to do so.

I find that the LCPIC failed to tender any amount to Mr. Orellana more than sixteen months after he reported the wind and rain damage claim’ from Hurricane Katrina. The LCPIC sent two adjusters to estimate Mr. Orellana’s damages sixteen months apart with estimates at $48,181.84 and $80,594.41 respectively. Mr. | ^Orellana’s adjuster estimated his damages at $103,635.51 almost a year after Hurricane Katrina. Accordingly, $48,181.84 of damage to Mr. Orellana’s home was undisputed. Also, the LCPIC never denied Mr. Orellana’s policy covered the alleged damages and Mr. Orellana repeatedly requested payment. The LCPIC could not provide an explanation as to why Mr. Orellana claim was not addressed properly.

I find that the trial court was correct in its factual finding that the LCPIC acted arbitrary and capricious as required for a penalty award. Therefore, pursuant to the de novo standard of review used for reviewing questions of law, like the awarding of penalties as per La. R.S. 22:1220, I would award $175,000 in penalties.

CANNIZZARO, J.,

dissenting.

Iil respectfully dissent from the majority’s award of $125,000.00 to the plaintiff, Javier Orellana.

The defendant, Louisiana Citizens Property Insurance Corporation (“LCPIC”), contends the trial court erred in awarding to Mr. Orellana $125,000.00 in damages for mental anguish, stress and inconvenience. LCPIC maintains that because Mr. Orella-na’s claims were based on an alleged breach of an insurance contract, his damages are limited to pecuniary losses flowing from the breach.

As a threshold matter, while it is undisputed the trial judge compensated Mr. Or-ellana for his nonpecuniary damages, LCPIC maintains the statutory basis for the award is somewhat vague. It notes that, while the trial judge characterized the award as “general damages” on several occasions, he cited to paragraph (C) of La. R.S. 22:1220, which LCPIC claims is applicable to the imposition of penalties. LCPIC recognizes Mr. Orellana concedes in brief that the award is for general damages. Notwithstanding, facing the remote possibility it could be faced with the imposition of penalties, LCPIC argues out of an abundance of caution that it is indistinguishable whether the award represents general damages or penalties. In any event, I conclude relief under either ease to be inappropriate under the facts. | aWhen considering La. R.S. 22:1220 in its entirety, the statute imposes the affirmative duty on an insurer to adjust claims fairly and promptly and to make a reasonable effort to settle claims. The provision grants a cause of action to an insured or claimant against an insurer who breaches the statutorily prescribed duties, as well as provides for the award of special, general and punitive damages.

General and Nonpecuniary Damages

“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 life-style which cannot be definitely measured in monetary terms.’ ” Kaiser v. Hardin, 06-2092 (La.4/11/07), 953 So.2d 802, 808, 809, citing Keeth v. Dept, of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993).

As stated, La. R.S. 22:1220 grants the cause of action for general damages for breach of an insurance contract. However, La. C.C. art.1998 dictates the limited circumstances nonpecuniary damages are awardable for breach of contract. La. C.C. art.1998 states:

Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings • of the obligee.

It is clear each paragraph of the Civil Code article provides a separate vehicle for nonpecuniary relief.

| ^Applying La. C.C. art.1998, Mr. Orella-na is barred recovery under the first paragraph. It is well settled in Louisiana law that the object of a contract of insurance is the payment of money. Bye v. American Income Life Ins. Co., 316 So.2d 164 (La.App. 4 Cir.1975). By virtue of the nature of the contract at issue in these proceedings, the basis of its formation was not to foster a nonpecuniary interest. Rather, it was for the payment of money to protect physical property against an insurable risk. Mr. Orellana has not presented evidence to suggest otherwise.

Additionally, recovery for general damages is barred under the second paragraph of La. C.C. art.1998. Although the nature of the contract is irrelevant, Mr. Orellana still had to sustain the burden of proving LCPIC intended to aggrieve his feelings. The record is absent any evidence LCPIC knowingly and intentionally sought to aggrieve or cause distress of any nature to Mr. Orellana’s feelings. LCPIC’s behavior, while characterized as “arbitrary and capricious,” did not equate with “intentional” misconduct. La. R.S. 22:1220 does not define “arbitrary” or “capricious”. Similarly, La. C.C. art.1998 does not define “intentional”. As such, I rely on Black’s Law Dictionary, 8th Edition' (1999), which defines “arbitrary” as “... [depending on individual discretion ...” It defines “capricious” as “... characterized by or guided by unpredictable or impulsive behavior.” In vast contrast, Black’s defines “intention” as “[t]he willingness to bring about something planned or foreseen; the state of being set to do something. — intentional, adj.” The state of mind for “arbitrary and capricious” behavior is seemingly based on whim, rather than reason or forethought as with intentional. misconduct. Therefore, I conclude damages for nonpe-cuniary loss are not recoverable under La. C.C. art.1998 and, as such, not compensa-ble under La. R.S. 22:1220(A).

|4Nor I do not find merit in the majority’s reliance on Blanche v. Jones, 521 So.2d 530 (La.App. 4 Cir.1988). Both this case and Blanche address the issue of nonpecuniary damages. However, Blanche did not involve recovery under La. R.S. 22:1220 or La. C.C. art.1998. Unlike the instant contractual premised claim, Blanche involved a delictual based action arising out of criminal damage to property. Specifically, the plaintiffs’ home was intentionally set on fire while they were present. They instituted a tort action seeking nonpecuniary damages against the parents of the minor arsonists alleging the intentional and/or illegal conduct resulted in measurable psychic trauma. The appellate court reversed the trial court finding mental anguish occasioned by property damage is compensable when the defendant’s actions are intentional or illegal. The majority undoubtedly relies on Blanche for this legal proposition.

Over two years after this court’s decision in Blanche, the Louisiana Supreme Court articulated,, in Moresi v. State Through Dept, of Wildlife and Fisheries, 567 So.2d 1081 (La.1990), the elements necessary for recovery for intentional infliction of mental distress: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm, [citing to Restatement of Torts (2d) § 46(1) ].” The jurisprudence is clear that the mental anguish must be a real mental injury, illness or other physical consequence. If a defendant’s conduct is merely negligent and causes only mental disturbance, absent accompanying physical injury, then the defendant is not liable for emotional distress. Moresi v. State Through Dept, of Wildlife and Fisheries, 567 So.2d at 1095, citing Prosser & Keeton § 54 at 361; Restatement of Torts (2d) § 436A. While the Louisiana Supreme Court in Moresi noted that there have been numerous deviations from the general rule for mental 1 ^injury damages, it further qualified that each of those case's “... have in common the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious, [cites omitted].”

Applying these principles, I do not find LCPIC should be held liable for mental distress under the facts. Although its actions were arbitrary and capricious, they were not intentional or outrageous. Further, I do not doubt Mr. Orellana suffers from the same worry and inconvenience the other innumerable victims of Hurricanes Katrina and Rita are suffering from over the consequences to their property. However, with the exception of his own testimony, Mr. Orellana did not present any evidence that he suffered measurable and severe psychic trauma and/or injury to justify such an award under these circumstances. For instance, in Blanche, the plaintiffs presented evidence of medical treatment for mental health, conditions precipitated .by the criminal damage to their home.

[ ^Moreover] I do not find the instant contract case to be the type of case envisioned' by the courts in Moresi and Blanche to warrant mental anguish recovery. Moresi and Blanche were both delic-tual cases relying on general principles of tort law to sustain a cause of action for nonpecuniary damages. Neither court cited to statutory support for mental anguish recovery and, rather, relied exclusively on jurisprudence. In contrast, the Louisiana Legislature specifically enacted La. R.S. 22:1220 and La. C.C. art.1998 to address recovery for nonpecuniary damages stemming from an insurer’s misconduct in the handling of an insurance claim. Mr. Orel-lana was unable to sustain his burden under these statutory provisions. As such, general damages are not awardable under the facts.

Penalties

The law of Louisiana is clear insofar as it provides that an insured or claimant cannot recover penalties for failure to settle a claim, except in the limited circumstances provided by statute. While La. R.S. 22:1220(0 states penalties may be awarded in the event an insurer is found to have acted arbitrary and capricious, I conclude that LCPIC is immune from the imposition of penalties pursuant to La. R.S. 22:1430, et. seq., entitled “Louisiana Citizens Property Insurance Corporation.” This section of the Louisiana Insurance Code sets forth the statutory provisions relative to the purpose, derivation and operation of LCPIC. Specifically, La. R.S. 22:1430.5, captioned “Immunity from liability,” states:

A. There shall be no liability on the part of and no cause of action of any nature shall arise against the Louisiana Insurance Rating Commission or any of its staff, or against the governing board of the Louisiana Citizens Property Insurance Corporation or anyone acting on behalf of the corporation or the plans, or against any servicing carrier or carriers, or against any assessable insurer, or against any participating insurance producer, or against the Department of Insurance or its representatives, for any action taken by them in the performance of their duties or responsibilities under this Subpart.

|7B. Such immunity from liability does not apply to:

(1) Any of the persons or entities listed in Subsection A hereof for any ■willful tort or criminal act.
(2) The corporation, or insurance producers placing business with one of the plans, for breach of any contract or agreement pertaining to insurance coverage.
(3) The corporation with respect to issuance or payment of debt.
(4) Any assessable insurer with respect to any action to enforce such insurer’s obligations to the corporation under this Subpart.
[Emphasis added.]

Paragraph (A) clearly provides the exemption from liability applies to, among others, LCPIC and anyone acting on its behalf during the performance of their duties or responsibilities. Paragraph (B) sets forth the exceptions to the grant of immunity. This paragraph is not the most artfully of drafted provisions by the Louisiana Legislature and, as such, the exceptions are difficult to discern. Notwithstanding, LCPIC correctly asserts the entirety of La. R.S. 22:1430(5) would be rendered meaningless if there was not an exception from the grant of immunity for the underlying cause of action subject of Mr. Orellana’s contractual insurance claim (i.e., property damage claim). To state otherwise, the LCPIC would never be required to pay an insured for a damage claim.

In stark contrast, overriding public policy dictates the Louisiana Legislature did not intend to have an exception from the grant of immunity for the assessment of penalties. See, Sultana Corp. v. Jewelers Mut. Ins. Co., 03-0360 (La.21/03/03), 860 So.2d 1112 (“Principles of judicial interpretation of statutes are designed to ascertain and enforce the intent of the Legislature in enacting the statute ... The fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the Legislature to enact the law. [Cites omitted; emphasis added]).” The first provision in the Insurance Code relative to LCPIC is La. R.S. 22:1430, which articulates LCPIC’s “declaration and purpose; [and] construction.” It expressly states the Legislature created the nonprofit corporation, among other reasons, to meet the public responsibility of providing homeowner’s |sproperty coverage for those unable to procure such following Hurricane Katrina. In furtherance of its mission, the Legislature declared in its purpose statement that “... it is essential for the corporation to have maximum financial resources to pay claims following a catastrophic hurricane ...” [Emphasis added.]. However, LCPIC is not an insurance carrier operating in the traditional insurance and investment market. Rather, it operates in a statutory imposed residual market, involuntarily subsidized by every Louisiana licensed insurer writing residential and commercial property insurance. La. R.S. 22:1430. Therefore, the Legislature imposed measures to protect LCPIC’s monetary resources and financial independence. For instance, it expressly exempted LCPIC and the interest on its debt obligations from federal income taxation, as well as mandated it- take all action to maintain its tax-free status. La. R.S. 22:1430 and 22:1430.5. Further, LCPIC is barred from declaring liquidation or bankruptcy and was ordered to retain any profits or excess reserves so as to offset any deficit incurred in the operation of the plan. La. R.S. 22:1430.6(E); La. R.S. 22:1430.20; and La. R.S. 22:1430(D)(4). Based on such, the imposition of penalties, on each occasion up to two times the amount of the policy, would undoubtedly be in direct contravention of the Legislature’s expressed declaration to protect LCPIC’s financial resources.

Finally, as stated, La. R.S.22:1220(C) is a penalty provision allowing for the punishment of an insurance carrier for arbitrary and capricious behavior. Generally, the penal nature of the monetary assessment is to discourage certain types of misconduct by an insurer. Sultana Corp. v. Jewelers Mut. Ins. Co., 860 So.2d at 1118. However, there would be no deterrent affect with the assessment of penalties against LCPIC, a nonprofit corporation. Rather, the penalty would result in a direct assessment and surcharge on all the insurance carriers operating in the state of Louisiana. These insurers would, in turn, impose a surcharge premium against its Louisiana policyholders to cover its deficit. Since LCPIC is indirectly | (¡financed by Louisiana citizens, they would ultimately suffer the long term effects of the assessment of penalties through their insurance premium increases. While I recognize the validity of the majority’s argument relative to the imposition of penalties, I find the overriding costs to be objectionable. In these unique times in history, Louisiana citizens can not be burdened with the excessive expense of bailing out LCPIC or any other entity created with the intention of providing assistance in the State’s recovery from Hurricane Katrina and Hurricane Rita. Clearly, such a result would thwart the public purposes propounded by the Legislature in the creation of LCPIC in providing economic stability and orderly growth and development to Louisiana and, particularly, the coastal area. See, La. R.S. 22:1430.

For these reasons, I conclude the majority’s award of $125,000.00 is inappropriate under the facts.

      . La. C.C. Art.1998. Damages for nonpecuni-ary loss.
      Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
      Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.

      . In 2005, Louisiana Citizens’ adjuster estimated the damage to be $48,181.84; however, in 2007, Louisiana Citizens' adjuster estimated the damage to be $80,594.41.

      . LCPIC does not contest ón appeal the trial court’s special damage award for the repairs to Mr. Orellana's property.

      . In Moresi, the court listed the several occasions where mental anguish damages- were awarded:
      A number of courts have allowed recovery against a telegraph company for the negligent transmission of a message, especially one announcing death, indicating on its face a potential for mental distress. E.g., Graham v. Western Union, 109 La. 1069, 34 So. 91 (1903). Some others have allowed similar recovery for the mishandling of corpses, See French v. Ochsner Clinic, 200 So.2d 371 (La.App. 4th Cir.1967); Blanchard v. Brawley, 75 So.2d 891 (La.App. 1st Cir.1954); Morgan v. Richmond, 336 So.2d 342 (La.App. 1st Cir. 1976); Shelmire v. Linton, 343 So.2d 301 (La.App. 1st Cir.1977); failure to install, maintain or repair consumer products, .Pike v. Stephens Imports, Inc., 448 So.2d 738 (La.App. 4th Cir.1984); failure to take photographs or develop film, Grather v. Tipery Studios, Inc., 334 So.2d 758 (La.App. 4th Cir. 1976); negligent damage to one’s property while the plaintiffs were present and saw their properly damaged, Holmes v. Le Cour Corp., 99 So.2d 467 (Orl.La.App.1958); Lambert v. Allstate Insurance Co., 195 So.2d 698 (La.App. 1st Cir.1967); and in cases allowing damages for fright or nervous shock, where the plaintiff was actually in great fear for his personal safety. Pecoraro v. Kopanica, 173 So. 203 (Orl.La.App.1937); Klein v. Medical Building Realty Co., Inc., 147 So. 122 (Orl.La.App.1933); Laird v. Natchitoches Oil Mill, Inc., 10 La.App. 191, 120 So. 692 (2d Cir. 1929); Cooper v. Christensen, 212 So.2d 154 (La.App. 4th Cir. 1968). 567 So.2d at 1096.


author: ROLAND L. BELSOME, Judge.

text:
    Corey JOHNSON v. DEPARTMENT OF POLICE.
    No. 2007-CA-1167.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2007.
    Frank G. DeSalvo, DeSalvo DeSalvo & Blackburn, APLC, New Orleans, LA, for Plaintiff/Appellee.
    Victor L. Papai, Jr., Assistant City Attorney, Heather M. Valliant, Assistant City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Penya Moses-Fields, City Attorney, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge DENNIS R. BAGNERIS SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME.
   ROLAND L. BELSOME, Judge.

1,111 this appeal, the Department of Police of the City of New Orleans (Department) seeks review of the decision of the Civil Service Commission (Commission) granting the appeal of the plaintiff, Corey Johnson (Johnson) and ordering his reinstatement with all back pay and emoluments of office. For the reasons which follow, we vacate the judgment and remand to the Commission with instructions. STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Department hired Johnson on October 5, 1997 as a police officer. The Department reassigned Johnson to the Reserve Division effective August 12, 2005. Johnson failed to report for duty on August 28, 2005, as required due to the approach of Hurricane Katrina. The Department issued a formal notice of termination dated January 18, 2006. The Department issued the termination letter without holding a pre-termination hearing.

Johnson filed an appeal with the Civil Service Commission. The Commission granted the appeal, concluding that the Department failed to grant Johnson a proper pre-termination hearing, including notice and an opportunity to be heard, prior to the imposition of discipline. The Commission ordered the ^Department to reinstate Johnson to his prior position with all back pay and emoluments of office. The Department filed a motion for appeal seeking review of the Commission’s decision.

DISCUSSION

In Reed v. Dept, of Police, 2006-1498, p. 1 (La.App. 4 Cir. 10/4/07), 967 So.2d 606 this Court faced the issue of whether the failure to hold a pre-termination hearing was an illegal denial of due process. This Court found that Hurricane Katrina, with its effects upon the City of New Orleans and its government, was an extraordinary event such that the Department could discipline its officers without a pre-termi-nation hearing. This Court held that under the unique circumstances presented, a post-termination hearing which allows the accused officer an opportunity to present all relevant evidence which would have been introduced at a pre-termination hearing satisfies the due process requirements of both the United States and Louisiana Constitutions. This Court vacated the decision of the Commission and ordered the Commission to receive from the parties such additional evidence as necessary to appropriately resolve the matter on the merits. Id. at p. 610.

We are required to follow this court’s decision in Reed. Thus, the Commission’s ruling is vacated, and the Commission is instructed to conduct a post-termination hearing and allow each party to introduce evidence at such hearing and render a decision on the merits of the case.

JUDGMENT VACATED; REMANDED.


author: CLARENCE E. McMANUS, Judge.

text:
    METRO GAMING & AMUSEMENT COMPANY v. The DECKBAR & GRILL, L.L.C. and AMA Distributors, Inc. d/b/a Lucky Coin Machine Company.
    No. 07-CA-546.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2007.
    Rehearing Denied Jan. 14, 2008.

      Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Michael F. Somoza, Beevers & Beevers Law Firm, Attorneys at Law, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Kurt S. Blankenship, Robert I. Baudouin, Njeri B. Maldonado, Jennifer M. Sullivan, Blue Williams, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

1 ^Defendant, AMA. Distributors, Inc. D/B/A Lucky Coin Machine, appeals from a judgment rendered in favor of plaintiff, granting injunctive relief, specific performance and damages. For the reasons that follow, we vacate the judgment.

On January 21, 2004, Metro Gaming and Amusement Company (“Metro”), and the Deckbar and Grill, L.L.C. (“Deckbar”) entered into a contract which gave Metro the right to place its video poker machines into Deckbar’s establishment in return for a sharing of the profits generated by those machines. The contract, signed by Charles B. Whalen, manager of the Deck-bar establishment specifically provides that

Establishment [Deckbar] hereby grants unto Company [Metro] the exclusive rights to place and operate said video draw poker devices and other legalized gaming devices in Establishment for a term of five (5) years commencing on the date that Company places first gaming device in operation at the aforesaid Establishment’s business premises.

On February 2, 2006, Metro filed suit against Deekbar and AMA Distributors, Inc. D/B/A Lucky Coin Machine (“AMA”) seeking a Temporary ^restraining order, and preliminary and permanent injunction. In the petition Metro alleged that Deekbar had its machines turned off and demanded that they be removed from its establishment, and that Deekbar entered into a contract with AMA for the placement of AMA’s machines into the establishment. Metro requested that AMA be enjoined from placing its video poker machines into the establishment. The trial court granted the preliminary injunction on February 17, 2006.

On March 31, 2006, Metro filed a supplemental and amending petition, which added Charles B. Whalen, Jr. individually and as the owner/member of Deekbar. Metro alleged that Deekbar, through Whalen, and AMA entered into an “agreement, scheme and/or plan” to force Metro to remove its gaming machines and to replace them with AMA’s machines and that this agreement was a conspiracy as defined by LSA C.C. art. 2324, making Deekbar and AMA liable in solido. Metro sought specific performance of the contract as well as all damages incurred as a result. Defendants filed an answer which incorporated exceptions of no cause/right of action. In addition, defendant filed a motion to set a trial date for the hearing on the permanent injunction. A trial date of November 13th was ultimately set.

On August 25, 2006, a pre-trial conference was held before the court. At that time, attorney for the defendants voluntarily dismissed the exceptions that had been filed. The attorneys for both plaintiff and defendants agreed at that time to setting trial on the merits of the first supplemental and amending petition for damages on the same November 13th date as the trial for permanent injunction.

On November 7, 2006, six days before the scheduled trial, counsel for Deekbar, Whalen and AMA filed a motion to withdraw as counsel of record, alleging the development of conflict of interest between the defendants. In this Rmotion, counsel admitted that a trial on both the petition for the permanent injunction and the amended petition for damages was set for November 13, 2006. The trial court granted the motion to withdraw on November 9, 2006.

Trial was held on November 13, 2006. Although plaintiff was present, no counsel enrolled on behalf of defendants, and they (Deekbar, Whalen and AMA) did not appear. Thereafter, the trial court rendered judgment granting a permanent injunction in favor of Metro, enjoining AMA and Deekbar from placing video gaming devices in the establishment. The court further granted Metro’s request for specific performance, and ordered Deekbar to comply with the January 21, 2004 contract by allowing the placing of its video poker machines. The court also rendered judgment in favor of Metro and against defendants Deekbar, Whalen and AMA, in soli-do, in accordance with LSA C.C. art. 2324, awarding damages of $44,571.78.

AMA appealed from the judgment of the trial court. Deekbar and Whalen filed an untimely motion for new trial, which was denied. No motion for appeal on behalf of Deekbar and/or Whalen appears in the record.

AMA presents four assignments of error in this appeal. In its first three allegations of error, it contends that the trial court erred in signing the motion to withdraw as counsel of record, because the motion did not comply with the Uniform Rules of the District Court. It further contends that the trial court erred in proceeding with trial when there was no evidence in the record that it had received notice of trial or a reasonable opportunity to obtain new counsel, and also that the trial court erred in awarding damages because the record does not clearly reflect that the supplemental petition was set for trial and does not indicate that the defendants were aware of the trial setting.

| sRules for Louisiana District Courts Title II, Rule 9.13 provides in pertinent part:

Rule 9.13 Withdrawal as Counsel of Record
Enrolled attorneys have, apart from their own interests, continuing legal and ethical duties to their clients, all adverse parties, and the court. Accordingly, the following requirements govern any motion to withdraw as counsel of record:
(a) The withdrawing attorney who does not have written consent from the client must make a good-faith attempt to notify the client in writing of the withdrawal and of the status of the case on the court’s docket. The attorney must deliver or mail this notice to the client before filing any motion to withdraw.
(c)Any motion to withdraw must include the following information:
(1)The motion must state current or last-known street address and mailing address of the withdrawing attorney’s
client. The withdrawing attorney must also furnish this information to the clerk of court.
(2) If a scheduling order is in effect, a copy of it must be attached to the motion.
(3) The motion must state whether any conference, hearing, or trial is scheduled, and, if so, its date.
(4) The motion must include a certificate that the withdrawing attorney has complied with paragraph (a) and with Rule 1.16 of the Rules of Professional Conduct, Louisiana State Bar Association, Articles of Incorporation, Art. 16. A copy of the written communication required by paragraph (a) must be attached to the motion.
(d) The court may allow an attorney to withdraw on ex parte motion if:
(1) The attorney has been terminated by the client; or
(2) The attorney has secured the written consent of the client and of all parties or their respective counsel; or
(3) No hearing or trial is scheduled, or the case has been concluded.
(e) If paragraph (d) does not apply, then an attorney may withdraw as counsel of record only after a contradictory hearing and for good cause. All parties and the withdrawing attorney’s client must be served with a copy of the motion and rule to show cause why it should not be granted.
[fi(f) If counsel’s withdrawal would delay a scheduled hearing or trial, the court will not allow the withdrawal, unless exceptional circumstances exist.

Both AMA and Deckbar were represented by the same counsel. The motion to withdraw filed by their attorney stated that a conflict of interest had developed between the defendants. The motion further stated that AMA had been notified orally and consented to the withdrawal of counsel, and that Deckbar was notified via certified mail. A copy of the return receipt is not present in the record.

Rule 9:13(d) provides that the trial court may grant the motion to "withdraw ex parte, if counsel has been fired, or counsel has obtained written consent of the client and of all parties, or no hearing has been scheduled. In this case, the motion to withdraw does not contend that counsel was terminated by the clients, there is no written consent in the record, and a hearing was set for a mere six days from the filing of the motion. Therefore under Rule 9.13(d), it was error for the trial court to grant the motion to withdraw as counsel of record on an ex parte basis, rather that after a contradictory hearing.

AMA next contends that there was insufficient evidence in the record that AMA received notice of trial and had a reasonable opportunity to secure counsel. The minute entry for the pre-trial conference on the permanent injunction held on August 25, 2006 reflects that the attorney for AMA was present and agreed to try the merits on the date of trial of the permanent injunction. There is nothing in the record to show that the parties were there, and there is nothing in the record to show. that notice of the trial date was mailed to the parties themselves.

This issue was considered by the court in Spiers v. Roye, 04-2189 (LaApp. 1 Cir. 2/10/06), 927 So.2d 1158. After finding that the trial court improperly granted counsel’s motion to withdraw ex parte, the Court said:

|7When a trial court provides written notice of a trial date to the attorney of record, but the attorney thereafter moves to withdraw as attorney of record, the trial court bears the responsibility of ensuring that the litigant receives notice of the pending trial in writing. [Footnote omitted.] The court can satisfy this notice requirement by reissuing the notice of trial to the unrepresented litigant directly. Otherwise, the court must receive reasonable proof that the withdrawing attorney has notified the client in writing of the trial date. This can be accomplished by attaching to the motion to withdraw a certified letter to the client or other evidence indicating the client has received unequivocal written notice of trial. If the record demonstrates that a litigant did not receive notice of trial, then he was denied procedural due process and fundamental fairness. [Footnote omitted.]

Id. at 1164-5, citing Davis v. Dunn & Bush Construction, 01-2472 (La.App. 1st Cir.4/9/03), 858 So.2d 451, 453.

There is nothing in the record to show that AMA received written notice of the trial date in the record before us. “[I]f Rule 9.13 is to have any practical force and effect, justice dictates that any judgment rendered at a trial held after its violation is subject to review for possible constitutional invalidity, if actual prejudice results to the client.” Spiers, supra at page 1166.

Because the record before us does not reflect that the defendants received adequate notice of trial, wé vacate the judgment of the trial court and remand this matter for a new trial.

JUDGMENT VACATED; CASE REMANDED.


author: COOKS, Judge.

text:
    Shannon PIGRON v. ALLSTATE INSURANCE CO.
    No. 2007-641.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.
    J. Kirk Piccione, Lafayette, LA, for Plaintiff/Appellant Shannon Pigron.
    Phillip Aucoin, Lafayette, LA, for Defendant-Appellee Allstate Insurance Co.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and BILLY H. EZELL, Judges.
   COOKS, Judge.

| t Plaintiff, Shannon Pigron appeals the trial court’s grant of summary judgment in favor of Allstate Insurance Company, finding a UM rejection form which included a binder number, but not a policy number, was valid. For the following reasons, we affirm.

ANALYSIS

On September 20, 2005, Shannon Pigron was riding as a passenger in a van driven by Barbara Pigron. At some point, a truck driven by Eugene Quibodeaux, made an improper left turn into the path of the Pigron’s vehicle and caused a collision. On that date, Allstate Insurance Company maintained a policy of motorist insurance covering Jimmie Pigron and his wife, Shannon. The issue in this case centers on the validity of a UM rejection form signed by Jimmie Pigron prior to the accident.

The record indicates on August 12, 2004, Allstate issued a binder (numbered 000041421034711) to the Pigrons. A UM rejection form was signed by Jimmie Pi-gron. However, on the blank provided for the insurance policy number on the UM rejection form, the binder number was entered instead. The application for insurance with binder number 000041421034711 was submitted electronically, and coverage was extended to the Pigrons on September 5, 2004, pursuant to the application. The effective coverage dates of that policy were from September 5, 2004 through March 5, 2005. The insurance policy was renewed every six months, with no changes, through the date of the accident, which occurred on September 20, 2005.

Shannon Pigron filed suit against Allstate, alleging it provided her with UM coverage. Allstate filed a Motion for Summary Judgment, contending the UM rejection form was valid. There is no dispute that a UM rejection form was signed 12by Jimmie Pigron, but the form listed the binder number rather than the policy number. The Pigrons argued if a UM rejection form does not reference the correct policy number it is invalid on its face, citing the Louisiana Supreme Court case of Duncan v. USAA Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544. The trial court disagreed, finding the present case was distinguishable from Duncan, because in Duncan the policy number was completely absent from the rejection form. In this case, the trial court noted the policy was clearly identified by the binder number, which is the predecessor to the policy number. Thus, the trial court found the waiver valid and granted Allstate’s motion for summary judgment. The Pigrons appealed.

ANALYSIS

In Duncan, the Louisiana Supreme Court set forth the applicable law in this area:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State Univ., 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. In ruling on the present cross motions for summary judgment, we will determine whether either party has established there are no genuine issues of material fact and it is entitled to judgment as a matter of law.
In Louisiana, UM coverage is provided for by statute and embodies a strong public policy. Roger [v. Estate of Moulton], 513 So.2d at 1130; A.I.U. Ins. Co. v. Roberts, 404 So.2d 948, 949 (La.1981). The object of UM insurance is to provide full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance. Tugwell v. State Farm Ins. Co., 609 So.2d 195, 197 (La.1992); Henson v. Safeco Ins. Co., 585 So.2d 534, 537 (La.1991); Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 578 (La.1982).
|SUM coverage is determined not only by contractual provisions, but also by applicable statutes. Roger, 513 So.2d at 1130. Thus, under the UM statute, the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected. Daigle v. Authement, 96-1662, p. 3 (La.4/8/97), 691 So.2d 1213, 1214; Henson, 585 So.2d at 537.
This court has held the statute is to be liberally construed. Daigle, 96-1662 at p. 3, 691 So.2d at 1214; Roger, 513 So.2d at 1130. The liberal construction given the UM statute requires the statutory exceptions to coverage be interpreted strictly. Roger, 513 So.2d at 1130. Any exclusion from coverage in an insurance policy must be clear and unmistakable. Daigle, 96-1662 at p. 3, 691 So.2d at 1214; Roger, 513 So.2d at 1130. In accordance with this strict construction requirement, the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Tugwell, 609 So.2d at 197.

As stated by this court in Roger, 513 So.2d at 1130:

The law imposes UM coverage in this state notwithstanding the language of the policy, the intentions of the parties, or the presence or absence of a premium charge or payment. Accordingly, to effect a valid rejection of the UM coverage under La. R.S. 22:1406(D)(l)(a), the insured or his authorized representative must expressly set forth in a single document that UM coverage is rejected in the State of Louisiana as of a specific date in a particular policy issued or to be issued by the insurer. A writing, regardless of the intention of the insured, of a less precise nature is insufficient to effect a valid rejection. (Citations omitted.)

Id. at 546-47.

The Duncan court then examined the legislative and jurisprudential history surrounding UM coverage in Louisiana and concluded the failure to fill in the policy number on the form invalidated the UM waiver. The court stated as follows:

It has been suggested that even if the form is not properly completed, the result is merely that the presumption does not apply and therefore the insurer must prove the insured knowingly waived coverage. We disagree.
This argument conflates the issues of form and intent. We find that, “The expression of a desire not to have UM coverage, however |4clear, does not necessarily constitute a valid rejection if the expression of rejection does not meet the formal requirements of law,” as stated by the First Circuit Court of Appeal in Cohn, 03-2820 at p. 5, 895 So.2d at 602, citing Roger, 513 So.2d at 1131. As stated above, the legislature gave the commissioner of insurance the authority to create a form and stated that “such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance.” Pursuant to that mandate, compliance with the form prescribed by the commissioner of insurance is necessary for the UM waiver to be valid. The insurer cannot rely on the insured’s intent to waive UM coverage to cure a defect in the form of the waiver. By failing to include the policy number in the blank provided on the form, the insurer failed to effectuate a valid rejection of UM coverage.
Moreover, we distinguish this failure to comply with the form prescribed by the commissioner of insurance from other types of clerical errors in insurance contracts. In Samuels v. State Farm Mut. Auto. Ins. Co., 06-0034, p. 9 (La.10/17/06), 939 So.2d 1235, 1241. this court stated that a clerical error on the declarations page of a policy can be reformed to reflect the mutual intent of the parties. In that case, however, we addressed whether one umbrella policy was in excess of another umbrella policy, and we specifically considered that the outcome did not affect the amount of coverage afforded the insured. Id. at 1239.
In contrast, in Washington v. Savoie, . 92-2957, pp. 6-7 (La.4/11/94), 634 So.2d 1176, 1180, this court differentiated UM coverage from other aspects of insurance law in the context of reformation, stating:
While it appears clear that the parties in this case were in good faith when they attempted to correct a mutual mistake, a court’s allowing the parties to change the effective date of the waiver by agreement, after the occurrence of plaintiffs’ accidents and after the institution of lawsuits, would encourage bad faith “cooperation” between an insurer who seeks to avoid payment of claims and a named insured whose premiums are fixed on the basis, of its loss experience. Although reformation of an insurance policy provision is valid between the parties when either party can prove a mistake in the policy which does not reflect their mutual intent, public policy precludes reformation of the effective date of a UM coverage rejection when the change adversely affects the rights of persons insured under the policy to recover damages under the UM coverage provisions before the change.
Similarly, the same concern of bad faith cooperation expressed in Savoie applies to the instant case because a third party guest passenger, not the insured, is attempting to recover under the UM coverage: Thus, reformation of a UM waiver is precluded when the change adversely Raffects the rights of persons who, prior to the reformation, would- be able to recover damages under the UM coverage provisions.
Therefore, we find the failure to fill in the policy number on the form prescribed by the commissioner of insurance invalidates the UM waiver, and consequently, the UM coverage is equal to the liability limits of the policy.

Id. at 553-54 .

The facts in the present case are different from those in Duncan. In Duncan the space where the policy number was supposed to be filled out was left blank. Here, the binder number clearly appeared on the rejection form, and the binder obligated the insurer according to the terms of a specified policy, though the numbers on the binder and policy are different. Unlike in Duncan, 950 So.2d 544, 551, where the plaintiff there asserted “it would be absurd to ‘conclusively presume’ that the UM form becomes a part of the policy when the policy is not referenced and the form is not physically attached thereto,” the policy in question here was referenced by the inclusion of the binder number. There is no dispute that the UM waiver in this case was to become a part of the policy later issued by Allstate.

Plaintiff argues the Supreme Court had the opportunity to amend its decision by granting rehearing in Duncan and could have stated that a binder number was sufficient. The Supreme Court is not in the habit of writing dicta. The issue was not before it. In Duncan, no number appeared on the UM form. We note as well, in the bulletin promulgated by the Louisiana Commissioner of Insurance, LIRC 98-03, insurers were advised that “where a policy number is not available, ... a binder number may be inserted.” Thus, Allstate contends it complied with the instructions given to the insurance industry by the Commissioner of Insurance. See Carter v. State Farm, Mut. Auto. Ins. Co., 07-1294 (La.10/5/07), 964 So.2d 375, wherein the Louisiana Supreme Court specifically stated that the “Commissioner of Insurance’s ^regulations specifically allow omission of the policy number if it does not exist at the time UM waiver form is completed.”

Plaintiff argues Allstate should not issue binders, but instead should issue policies. However, La.R.S. 22:631 provides insurers may issue binders:

A “binder” is used to bind insurance temporarily pending the issuance of the policy. No binder shall be valid beyond the issuance of the policy as to which it was given.

Thus, binders are authorized by law. Although the binder is sufficient to evidence a contract, it does not stand independent from the policy. Donaldson v. United Community Ins. Co., 98-1187 (La.App. 3 Cir. 2/10/99), 741 So.2d 676, unit denied, 99-727 (La.5/7/99), 740 So.2d 1285. The binder is subject to the conditions of the policy contemplated. Appleman, et al., Insurance Law and Practice, § 7232 (1981).

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: EZELL, Judge.

text:
    Maria M. MUNAR v. STATE FARM INSURANCE COMPANY, et al.
    No. CA 2007-611.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.

      James E. Diaz, Attorney at Law, Lafayette, LA, for Secondary Plaintiff/Appellant, Maria M. Munar.
    Kenneth Wayne Jones, Jr., Cynthia Gat-lin Sonnier, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Lafayette City-Parish Consolidated Government.
    Staci Knox Villemarette, Cloyd, Wim-berly & Villemarette, L.L.C., Lafayette, LA, for Defendants/Appellees, State Farm Insurance Company, Kurt W. Schmersahl, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

11 This is an appeal arising from an auto accident involving a pedestrian. The Lafayette City-Parish Consolidated Government (LCG) appeals the decision of the trial judge in this bifurcated trial, finding that it breached a duty to the pedestrian, Maria Munar, and was fifteen percent at fault for the accident. Mrs. Munar appeals the decision of the jury, assessing her with seventy-five percent of the liability. For the following reasons, we reverse the decision of the trial court in part, affirm in part, and render judgment.

Mrs. Munar is a permanent resident of the United States who originally hails from the nation of Columbia. She was sixty-nine years old at the time of the accident. Because she is not fluent in English, she was taking English lessons at VITA in downtown Lafayette. To get to the lessons, she rode the Lafayette Transit Bus from. Acadiana Mall down Johnston Street, one block past Jefferson Street, to the designated bus stop located on the Southeast side of the intersection of Johnston and Convent Street. She would normally disembark at the bus stop, then walk back down Johnston to the Jefferson intersection and cross Johnston at the traffic light controlling the intersection, because a pedestrian protection device controlled the crosswalk, allowing her to cross safely.

On January 29, 2004, Mrs. Munar again followed this pattern to attend her English lessons. However, when she rang the bell to exit the bus at her usual stop, the bus driver, for some unknown reason, failed to stop at the designated spot. After crossing the intersection of Johnston and Convent Street, the bus driver stopped in the middle of the next block, roughly one hundred and fifty feet past the desired bus stop. Mrs. Munar disembarked from the bus without incident or complaint, the bus pulled away, and she began to walk back toward the intersection of Johnston and 12Convent, on' her way to the Jefferson intersection. After walking half a block back to Convent, Mrs. Munar stopped for approximately thirty seconds to check to see if the intersection was clear for her to cross. She saw Kurt Schmersahl approaching from her left, but felt she had time to get across the intersection. As she stepped into the street, she was bumped by Mr. Schmersahl as he executed a right turn from Convent onto Johnston. Mrs. Munar fell to the ground, suffering injuries to her right leg and left wrist.

Mrs. Munar filed this suit against Mr. Schmersahl and the LCG as a result of the accident. She claimed LCG breached its duty to her as a passenger by dropping her off at a spot other than a designated bus stop. The trial judge in this matter agreed, finding that LCG was fifteen percent at fault for her injuries, and assessed damages in the amount of $39,047. The trial judge submitted the remaining eighty-five percent of the fault to the jury. After hearing testimony from several sources, including both parties and an independent witness, the jury found that Mrs. Munar was seventy-five percent at fault for the accident and that Mr. Schmer-sahl was ten percent at fault. However, the jury found that no injuries were sustained and awarded no damages. Mrs. Munar filed a motion for a judgment notwithstanding the verdict (JNOV) on the issues of liability and damages! The trial judge denied the motion as to liability but granted a JNOV as to damages. He found that Mrs. Munar had suffered the $39,047 in damages he had previously awarded in his part of the bifurcated trial against LCG, subject to reduction based on comparative fault. Costs of the trial were apportioned at seventy-five percent to Mrs. Munar and ten percent to Mr. Schmersahl. LCG was exempt from paying any court costs in this matter.

From these decisions, Mrs. Munar and LCG appeal. Mr. Schmersahl answers, seeking additional attorney fees for work done on appeal. We shall address the ^claims of LCG first.

LCG

On appeal, LCG asserts three assignments of error: that the trial court erred in finding that the bus driver owed a duty to Mrs. Munar, as a passenger, at the time of the accident; in finding a breach of that duty; and in finding that any breach was the cause of the accident. Because we agree with LCG that it no longer had any duty to Mrs. Munar as a passenger at the time of the accident, we need not address the other two assignments of error.

In contracting to transport passengers for hire, public carriers undertake grave obligations. Gill v. Doe, 479 So.2d 36 (La.App. 4 Cir.1985). It is well-settled that although a common carrier is not the insurer of the safety of its fare-paying passengers, it nevertheless is required to exercise the highest degree of care. As such, when an injury to a passenger occurs, the burden shifts to the defendant carrier to show that it was entirely free of even the slightest negligence contributing to the resulting injury. King v. King, 253 La. 270, 217 So.2d 395 (1968). This doctrine “applies in all circumstances where a passenger suffers an injury when boarding, traveling aboard, or disembarking a common carrier’s vehicle.” Amos v. St. Martin Parish Sch. Bd., 00-808, p. 3 (La.App. 3 Cir. 12/6/00), 773 So.2d 300, 302 (citations omitted). However, as noted by this court in Teer v. Continental Trailways, Inc., 341 So.2d 1306,1308 (La.App. 3 Cir.1977):

nce a passenger freely disembarks at his chosen destination free from harm, his status as passenger, and the public carrier’s contract to transport for hire, cease. At that point the public carrier only owes such person the duty of ordinary care — it is under no duty to warn the former passenger of “a danger which is apparent, obvious and known to every person in good mind and sense” (.Deason v. Greyhound Corp., 106 So.2d 348 (La.App. 1 Cir., 1958), nor to personally transport, convey, or assist the former passenger in crossing a street or highway.

|4In this case, it is undisputed that Mrs. Munar alighted safely from the bus. Further, she securely walked one hundred fifty feet from the place where she alighted to the intersection of Convent and Johnston, where she testified she waited over thirty seconds before entering the road. She claims the duty extended because the LCG bus driver’s manual stated that a bus driver is to drop passengers off at bus stops only. However, the same manual states that if a stop is missed, the driver is to drop the passenger off at the next stop, or the next safe spot. As noted above, Mrs. Munar was let off at a safe location, where she exited the bus without incident or complaint. In fact, she testified that being dropped off in that spot did not bother her at all. We find Mrs. Mu-nar’s claims to be completely devoid of any merit and that LCG’s duty to her as a passenger ended at the time she safely disembarked from the bus. The trial court’s decision, holding LCG fifteen percent at fault for Mrs. Munar’s accident is, accordingly, reversed.

Maria Munar

Mr. Munar also appeals, asserting six assignments of error. She claims that the trial court erred in not admitting evidence of other accidents involving Mr. Schmer-sahl; that the jury erred in its apportionment of fault; that the trial court erred in not granting a JNOV on the issue of liability; that the jury failed to award damages; that the trial court awarded inadequate damages; and that the trial court erred in its apportionment of costs. The fourth assignment of error, concerning the failure of the jury to award damages, was rendered moot by the JNOV granted by the trial court on that issue. Because Mr. Schmersahl has not appealed the JNOV, we need not address that assignment of error.

Mrs. Munar first claims that the trial court erred in failing to admit evidence concerning other auto accidents in which Mr. Schmersahl was involved. In McIntosh v. McElveen, 04-1041, pp. 9-10 (La.App. 3 Cir. 2/2/05), 893 So.2d 986, 994, writ denied, 05-528 (La.4/29/05), 901 So.2d 1069 (citations omitted), a panel of this court observed that a “trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion.” Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person “in order to show that he acted in conformity therewith.” La.Code Evid. art. 404(B). Even if the evidence is independently relevant, it “may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La. Code Evid. art. 403. While Mr. Schmer-sahl did have other accidents on his record, the trial judge found that a pattern of habit did not arise, so the prior accidents could not be used to show he was inattentive at the time of the accident that is the basis of this suit, as their admission would prejudice the jury against Mr. Schmersahl. The record does not demonstrate abuse of the trial judge’s discretion in denying the introduction of the evidence Mrs. Munar sought. Therefore, this assignment of error is without merit.

Next, Mrs. Munar claims the jury erred in its apportionment of fault. Again, we disagree. It is well established that an appellate court cannot overturn the factual findings of a trial court unless, after careful review of the record as a whole, the appellate court finds that the factual conclusions of the trier of fact were manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate standard of review is both constitutionally based and jurisprudentially refined.

This state’s appellate review standard, which is constitutionally based and juris-prudentially driven, is that a court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Accordingly, appellate courts are charged with a duty to affirm the trial court’s decision absent an error of law or a factual finding which is manifestly | (¡erroneous or clearly wrong.

Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

If there is conflict in the testimony, the appellate court cannot substitute its own judgment. The appellate court can only review the record as a whole to ensure that the judgment of the trial court was reasonable. “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Id. at 882.

[I]f the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently... .[Wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

Rosell, at 844.

The record shows that the jury heard conflicting testimony from both the parties. Additionally, neither the testimonies of the independent witness or the police on the scene truly synced with either party. There did, however, exist a reasonably factual basis for the jury to come to its conclusion that Mrs. Munar was mostly to blame for the accident. Both Mr. Schmersahl and the police reported that he was beyond the stop sign, already into his turn, and entering Johnston when he struck Ms. Munar. The location of Mr. Schmersahl’s truck after the accident placed Mrs. Munar outside of the crosswalk. Furthermore, Mrs. Munar testified that she saw Mr. Schmersahl coming, but still entered the roadway despite that fact. We can find no error in the finding of the jury that Mrs. Munar was seventy-five percent at fault for the accident. However, as we have ruled that LCG can not be held at fault, fifteen percent of the fault remains. We find that this additional percentage of fault should be assessed between the parties at five percent to Mrs. Munar and ten percent to Mr. Schmersahl. Accordingly, we render judgment finding Mrs. Munar eighty percent at |7fault for the accident and Mr. Schmersahl twenty percent liable.

Mrs. Munar next claims that the trial judge erred in failing to grant a JNOY as to the jury’s determination on liability. The criteria applicable to our review of the denial of Mrs. Munar’s motion for JNOV was set forth by the Louisiana Supreme Court in Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, pp. 5-6 (La.5/18/99), 733 So.2d 1198, 1203, rehearing in part, (La.9/3/99), 751 So.2d 820:

JNOV is warranted only when the facts and inferences, viewed in the light most favorable to the party opposing the motion, is so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict; the motion should be granted only when evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991); Scott v. Hospital Service District No. 1, 496 So.2d 270 (La.1986). Refusal to render a judgment notwithstanding the verdict (JNOV) can only be overturned if it is manifestly erroneous. Delaney v. Whitney National Bank, 96-2144, 97-0254 (La.App. 4 Cir. 11/12/97), 703 So.2d 709[,] writ denied, 98-123 (La.3/20/98), 715 So.2d 1211.

As we have previously held that there existed a reasonable factual basis for the findings of the jury, it is clear that the evidence did not point so clearly in favor of Mrs. Munar that the JNOV should have been granted. This assignment of error is devoid of merit.

Mrs. Munar next claims that the trial judge erred in granting insufficient damages. The trial judge, both in his part of the bifurcated case against LCG and in his granting of the JNOV in favor of Mrs. Munar on the issue of damages, found that Mrs. Munar had suffered damages in the amount of $39,047 as a result of the accident. This court, in Guillot v. Doe, OS-1754, pp. 5-6 (La.App. 3 Cir. 6/30/04), 879 So.2d 374, at 379-80 (footnotes omitted; alteration in original), when discussing the correct procedure for reviewing damage awards, stated the following:

An appellate court should rarely disturb an award of damages due to the great and, even, vast discretion vested in the trial court. We can |sdisturb such awards, only, when the trial court clearly abused its discretion.
Reasonable people often disagree over the appropriate measure of general damages in a particular case. Yet, “[i]t 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.”
We should not rely on a comparison of prior awards in cases with similar medical injuries to decide whether the trial court abused its discretion. “The primary considerations in assessing damages are the severity and duration of the injured party’s pain and suffering.”

The trial judge noted in carefully thought out reasons for judgment that Mrs. Munar had, indeed, proved she sustained injuries as a result of the accident, most notably to her left wrist and right ankle. She had to be transported from the scene to the emergency room in an ambulance. However, her injuries turned out to be relatively minor. She suffered mainly a sprained wrist, contusions, and a chip fracture on her right foot. The accident also aggravated some pre-existing degenerative problems in her back and caused her to suffer some loss of enjoyment of life. The trial court awarded $20,000 in general pain and suffering damages, $7,500 for future loss of enjoyment of life, and $11,547 in medical expenses. We can not find any abuse of discretion in this award. This assignment of error is also without merit.

Finally, Mrs. Munar claims that the trial judge erred in assessing her with seventy-five percent of the court costs. Mr. Schmersahl was taxed with ten percent of the costs of trial. LCG was exempt from paying any court costs in this matter. Louisiana Code of Civil Procedure Article 1920 provides, in pertinent part, that “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” “The trial court may assess costs against any party in the proportion it deems equitable, even against the party prevailing on the merits.” Greene v. Greene, 94-79, p. 4 (La.App. 3 Cir. 10/5/94), 643 So.2d 891, 894. A trial | gcourt’s assessment of costs can be reversed only upon a showing of an abuse of discretion. State ex rel. Guste v. Nicholls College Found., 592 So.2d 419 (La.App. 1 Cir.1991), writ denied, 593 So.2d 651 (La.1992). In this matter, Mrs. Munar was assessed costs of court in accordance with her seventy-five percent of fault, as assessed by the jury. While we find that the assessment of trial costs was not an abuse of the trial court’s discretion, we hereby render judgment assessing trial costs to reflect the allocation of fault as rendered in this opinion, eighty percent to Mrs. Munar and twenty percent to Mr. Schmer-sahl, as necessitated by our findings pertaining to LCG.

Kurt Schmersahl

Finally, Mr. Schmersahl answers the appeal, seeking attorney fees for additional work done on appeal. Because he was not entitled to, nor awarded attorney fees by the trial court, we hereby deny his request.

Decree

The decision of the trial court assessing LCG with fifteen percent of the liability in this matter is hereby reversed. Judgment is hereby rendered finding Mrs. Munar liable for eighty percent of the damages she suffered and Mr. Schmersahl liable for the remaining twenty percent. Judgment is also hereby rendered assessing costs of the trial at eighty percent to Mrs. Munar and the remaining twenty percent to Mr. Schmersahl. The judgment of the trial court is hereby affirmed in all other aspects. Costs of this appeal are assessed against Mrs. Munar.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.