author: HUGHES, J. DOWNING, J.,

text:
    THIBAUT OIL COMPANY, INC. v. Spurgeon HOLLY, Jr.
    No. 2006 CA 0313.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2007.

      Timothy E. Pujol, Brittany A. Keaton, Prairieville, Counsel for Plaintiff/Appellee Thibaut Oil Company, Inc.
    Keith R. Credo, Metairie, Counsel for Defendant/Appellant Spurgeon Holly, Jr.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

[^Spurgeon Holly, Jr., plaintiff-in-recon-vention, appeals from a September 6, 2005 judgment dismissing without prejudice on grounds of abandonment his reconventional demand against Thibaut Oil Co., Inc., defendant-in-reconvention. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of a lease arrangement between Thibaut Oil Co., Inc. (Thibaut) and Spurgeon Holly, Jr. The original lease by Mr. Holly to Thibaut of property for use as a gas station ran from July 1977 to July 1987 and was not renewed. After Thibaut vacated the premises, a dispute began over removal of underground tanks, pumps, signs, and an overhead canopy on the property. In March 1988, Thibaut sued Mr. Holly for $25,000.00 in damages and sought an injunction against Mr. Holly interfering with its efforts to remove the equipment from the property. In May 1988, Mr. Holly answered Thibaut’s petition and filed a reconventional demand claiming $250,000.00 in damages from Thibaut for lost sales, damage to his business reputation and good will, and mental anguish.

In 1995, Thibaut moved to dismiss its claims for mootness as the equipment had apparently been removed by that time; Mr. Holly maintained his reconventional demand against Thibaut. In May 2001, Mr. Holly moved to set trial, and a pretrial conference was set for June 25, 2001. Thibaut responded by moving to compel Mr. Holly’s responses to discovery propounded in 1995 and also to continue the pre-trial conference as it asserted that discovery was still not complete. On June 14, 2001, the court ordered the June 25, 2001 pre-trial conference continued “without date, and that a new motion not be submitted until all discovery was complete.”

laOn September 16, 2003, Mr. Holly faxed another motion to set for trial to the district court clerk. The accompanying transmission letter indicates that Thibaut’s counsel received a copy. The clerk’s office responded on the same date that Mr. Holly’s fax had been received and noted further that “[t]he original must be filed within five days of receipt.” The record does not reflect that the clerk ever received an original “hard copy” of the motion, thus the motion was never processed.

In April 2005, Mr. Holly moved for a status conference, which was set for April 27, 2005. At the status conference, a pretrial conference was set for September 26, 2005. On May 4, 2005, however, Thibaut filed a motion to dismiss with prejudice on the grounds that Mr. Holly had abandoned the matter. According to Thibaut, Mr. Holly had never followed up the fax filed motion to set of September 16, 2003 with the original, thus, the fax filing had no effect. Thibaut’s memorandum in support noted additionally that its motion to compel had never been heard and no that formal discovery had been exchanged since June 2001.

Mr. Holly argued that a September 17, 2003 letter by Thibaut’s counsel opposing the motion to set because Mr. Holly had still not produced discovery responses amounted to a “step” by the defense such that Thibaut had waived its right to. claim abandonment by Mr. Holly. The matter was heard in early August 2005 and the court granted Thibaut’s motion, dismissing Mr. Holly’s action without prejudice in written reasons dated August 16, 2005 and an order dated September 6, 2005. Mr. Holly moved for a new trial on the matter and for the dismissal to be set aside, which the court declined to grant in an order dated November 7, 2005. Mr. Holly has appealed.

|4LAW AND ANALYSIS

Abandonment is governed by Louisiana Code of Civil Procedure Article 561, which reads in pertinent part:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the-manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

LSA-C.C.P. Art. 561

The supreme court has expressed that Article 561 imposes three requirements on plaintiffs engaging in litigation:

First, plaintiffs must take some “step” towards prosecution of their lawsuit. In this context, a “step” is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.

Clark v. State Farm Mutual Auto Ins. Co., 2000-3010, p. 6 (La.5/15/01), 785 So.2d 779, 784 (footnotes omitted).

In this matter, Mr. Holly asserts that the trial court erred in failing to find that his September 16, 2003 faxed motion to set constituted a step in the process of prosecution of his claim. In its written reasons, the trial court concluded that because Mr. Holly never complied with the requirements of |sLa. R.S. 13:850, which requires a fax filing to be followed up within five days by a signed original document along with any required filing and transmission fees, his fax filing of the motion to set was of no force and effect, and thus could not be considered a step in the prosecution.

- In its extended discussion of abandonment in Clark, the supreme court included sections on both the construction standards and policy considerations attendant in abandonment analysis. From these, it is clear that the intent and substance of a party’s actions matter far more than technical compliance. In essence, while a filing may not be effective for its stated purpose, it may still amount to a step in prosecution:

[T]he appellate courts have declined to allow form to prevail over substance in determining whether an action has been abandoned. This court has likewise declined to allow suits to be dismissed as abandoned based on technical formalities.
In sum, abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned.

Clark, 2000-3010 at p. 9, 785 So.2d at 786 (quoting Justice (then Judge) Lemmon’s “oft-quoted” statement in Kanuk v. Pohlmann, 338 So.2d 757, 758 (La.App. 4 Cir.1976)) (footnotes omitted).

In footnotes to Clark, the supreme court lists a handful of citations in what it terms uniform jurisprudence in which filings with technical defects have been deemed steps in prosecution. Id., nn. 11-13. The Clark opinion notes further that the purpose underlying Article 561⅛ requirements that steps taken be part of the record is to protect defendants through sufficient notice of a plaintiffs actions. Id. at p. 17, 785 So.2d at 790.

Our review indicates not only that Mr. Holly’s fax filing was received by both the clerk’s office and opposing counsel, but that both the clerk and opposing counsel responded in writing to the fax. Thus, there is no doubt that both the court and Thibaut received sufficient notice that Mr. Holly Ifidearly intended to move his case along and took action to do so. While it is uncontested that Mr. Holly’s faxed motion failed to comply with the requirements of La. R.S. 13:850 and thus could not have been effective as a motion to set, the standards of Article 561 are more liberal and less formulaic. We therefore find that Mr. Holly’s faxed motion to set of September 2003 can be considered a step in prosecution of his action pursuant to Article 561

As the above conclusion renders Mr. Holly’s action not abandoned, we need not address Mr. Holly’s additional assignments of error concerning the trial court’s decision that Thibaut’s counsel’s September 17, 2003 letter, a response in opposition to Mr. Holly’s faxed motion, was neither a step by Thibaut sufficient to halt the tolling of the abandonment time period nor a waiver by Thibaut of its right to claim abandonment. On the first point, however, we note that Thibaut’s September 17, 2003 letter amounted to a step in defense of the case for the same reasons that Mr. Holly’s September 16, 2003 faxed motion amounted to a step in prosecution of the case.

Thibaut’s letter, which was copied to and received by the clerk, protested setting the case for trial until Mr. Holly responded to Thibaut’s pending discovery requests. As discussed above, Article 561 demands consideration of the substance and intent of a party’s action and the extent to which that action is made known to other parties. We recall also the supreme court’s definition of a “step” in Clark: “formal action before the court which is intended to hasten the suit toward judgment.” Clark, 2000-3010 at p. 6, 785 So.2d at 784. Here, Thibaut’s insistence in the September 17, 2003 letter that nothing be done until it received its discovery responses may be viewed as a formal action before the court in which it sought to hasten the 17suit toward judgment by seeking expedited production by Mr. Holly of his discovery responses.

Mr. Holly alleges in the alternative that Thibaut’s September 17, 2003 letter amounted to a waiver of its right to claim abandonment under the jurisprudentially created exception to Article 561 that concerns a defendant’s conduct. An otherwise abandoned cause of action may be ineligible for a claim of abandonment, either before or after the three-year period elapses, “when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned.” Clark, 2000-3010 at p. 7, 785 So.2d at 785. The exception is based on the principal of acknowledgment as expressed in Louisiana Civil Code Article 3464. Id. at pp. 12-13, 19-20, 785 So.2d at 788, 791-92 (citing Lima v. Schmidt, 595 So.2d 624, 634 (La.1992)). Waiver analysis differs from step analysis in that matters not within the record and thus not formally before the court may be considered.

The supreme court in Clark noted further that waiver analysis is consistent with the abandonment policy “dictating that courts consider substance over form” and that it is the “qualitative effect of the defendant’s conduct” that matters in waiver analysis, regardless of the form or formality that conduct may take. Id. at pp. 20-21, 785 So.2d at 792-93.

In light of these instructions, we note as to Mr. Holly’s second point that Thibaut’s September 17, 2003 letter opposing Mr. Holly’s motion to set amounts to an acknowledgment of Mr. Holly’s ongoing cause of action and thus a waiver of its right to claim abandonment. It is an action “inconsistent with an intent to treat the case as abandoned.” We conclude thus that the events of September 16th and 17th of 2003, considered either separately or [¿together, show no intention on the part of either party to consider this matter abandoned.

CONCLUSION

For the above and foregoing reasons, we conclude that this matter has not been abandoned. We reverse the September 6, 2005 judgment dismissing Spurgeon Holly, Jr.’s reconventional demand against Thi-baut Oil Co., Inc. The costs of this appeal are assessed equally against Spurgeon Holly, Jr. and Thibaut Oil Co., Inc.

REVERSED.

DOWNING, J., concurs and assigns reasons.

DOWNING, J.,

concurs and assigns reasons.

hi concur with the report because I agree that fax filing a motion to set the matter for trial is a formal step in the prosecution that interrupts abandonment, even though the fax filing was not effective for the purpose intended.

However, I disagree that the letter from Mr. Thibaut’s counsel stating that there has been no response to previously filed discovery requests and reciting that, therefore, “any motion to fix for trial is premature” is a step in the prosecution. This correspondence is not a formal action as required by Clark v. State Farm, 00-3010, p. 6 (La.2001), 785 So.2d 779, 784. Had the letter actually asked the court to do anything, perhaps we could construe the letter as some type of motion, but the letter doesn’t do this. Therefore, we do not have to address this possibility now.

I further disagree that Mr. Thibaut’s letter can in any way be construed as an acknowledgment or waiver. Clark, 00-3010 at pp. 20-21, 785 So.2d at 792, instructs us that “[i]n determining whether a waiver of the right to assert abandonment occurred, the jurisprudence has recognized the appropriateness of considering the qualitative effect of the defendant’s conduct.” In Clark, the supreme court held that an unconditional tender | ¡.constituted a waiver because the qualitative effect was to protect the defendant’s interest in the avoidance of penalties and attorney fees. Here, I see no qualitative benefit for Thi-baut Oil in its informal correspondence.

Additionally, in Satterthwaite v. Byais, 05-0010, p. 4 (La.App. 1 Cir. 7/26/06), 943 So.2d 390, 393 (Hughes, J., concurring), this court observed that, “This waiver exception to Article 561, however, has been applied only where, after the abandonment period has accrued, a defendant has taken steps that facilitated the judicial resolution of the dispute on the merits and were an expression of the defendant’s willingness or consent to achieve judicial resolution of the dispute.” (Emphasis in original.) An informal request for discovery responses and a statement that it is premature to fix a matter for trial do not facilitate judicial resolution of the matter. Note Clark’s assertion that, “Logic dictates that the same standard for determining if action of the defendant results in waiver and thereby an interruption of abandonment should apply regardless of whether the conduct occurred before or after the abandonment period elapsed.” Clark, 00-3010 at p. 15, 785 So.2d at 789.

Since these latter two holdings are unnecessary, and in my opinion, incorrect, I suggest that these two discussions be disregarded. The decision is fully supported on the basis that the fax filing was a step in the prosecution.

      . Article 3464 reads: “Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.”


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    Percy AUCOIN v. CAJUN CONSTRUCTORS, INC.
    No. 2006 CA 1116.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Aub A. Ward, Baton Rouge, Counsel for Claimant/Appellee Percy Aucoin.
    Frank R. Whiteley, Robert J. May, Me-tairie, Counsel for Defendants/Appellants Cajun Constructors, Inc. and St. Paul Mercury Ins. Co.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

| ¿This ⅛ an appeal from an Office of Workers’ Compensation (OWC) ruling granting workers’ compensation benefits to a claimant following termination of benefits by the employer under LSA-R.S. 23:1208. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 18, 2004 Percy Aucoin filed a “Disputed Claim for Compensation” with the OWC, alleging that on or about May 21, 2004, he bumped his head on a pipe while climbing a scaffold during the course and scope of his employment with his employer, Cajun Constructors, Inc. (Cajun). Mr. Aucoin claims that this incident caused him to suffer a neck injury, which rendered him disabled. Workers’ compensation benefits were paid to Mr. Aucoin by the employer’s insurer, St. Paul Mercury Insurance Company (St. Paul), through November 3, 2004. At that time, the decision was made by St. Paul to ter-mínate benefits because it believed that Mr. Aucoin had made fraudulent misrepresentations in violation of LSA-23:1208.

Following a hearing before the OWC, the OWC judge ruled that Mr. Aucoin had suffered a compensable injury, which entitled him to supplemental earnings benefits “commencing from November 3, 2004 through February 2, 2006, for 65 weeks, amounting to $27,885.00, with interest at the rate of 5.25% per annum on each installment due, until paid, with said benefits continuing under the act.”

IsSt. Paul appeals and makes the following assignments of error:

I. The [OWC] erred in finding that Percy Aucoin carried his burden of proving an un-witnessed accident where the record establishes that Aucoin cannot point to the date of the accident and his witnesses, his own relatives, discredit his testimony regarding the occurrence of an accident.
II. The OWC erred in finding that Percy Aucoin did not violate LSA-R.S. 23:1208.

LAW AND ANALYSIS

The Workers’ Compensation Act provides coverage to an employee for personal injury by “accident” arising out of and in the course of his employment. An “accident” is defined by LSA-R.S. 23:1021(1) as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

An employee must prove the chain of causation required by the workers’ compensation statutory scheme as adopted by the legislature. He must establish that the accident was employment-related, the accident caused the injury, and that the injury caused the disability. Clausen v. D.A.G.G. Const. (La.App. 1 Cir. 2/15/02), 807 So.2d 1199, 1201, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851. A claimant has the burden of proving disability by clear and convincing evidence. See Walker v. High Tech Refractory Services, Inc., 2003-1621, p. 3 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.

In this case, Cajun and St. Paul assert on appeal that Mr. Aucoin failed to bear his burden of establishing that there was an accident. Appellants point to uncertainties as to the exact date of the accident, 1.e., at times the accident was reported as occurring on Wednesday, May 19, 2004, and at | ¿times the date of accident was fixed as Friday, May 21, 2004. Appellants further emphasize discrepancies between the testimony of Mr. Aucoin and that of witnesses called on his behalf.

Mr. Aucoin testified that his accident was witnessed by his co-worker, Jamie Blanchard, who also hit his head on the pipe at issue, but that they both continued to work and did not report the accidents. Mr. Aucoin also testified that he saw his son, Percy Aucoin, Jr., who also worked there, and his son-in-law, Curtis Ourso, who was his immediate supervisor on the job site, later that work day and mentioned to them that he had hit his head on the pipe. . Mr. Aucoin testified that he was unsure whether the accident happened on Wednesday (May 19, 2004) or Friday (May 21, 2004). Over the following weekend, Mr. Aucoin stated that he saw Curtis Our-so at a family gathering and told him that his neck was hurting. On his next work day, a Monday, Mr. Aucoin testified that he made a formal report of his injury.

Mr. Aucoin indicated that he had previously undergone a cervical fusion in 1993, but testified that since that time he had only minor neck pain, which did not require medical attention. In contrast, after hitting his head on the Cajun work site, Mr. Aucoin had “strong pain” in a different area of his neck, which radiated down his arms.

Cajun asserts that the testimony of Curtis Ourso contradicts that of Mr. Aucoin, and that since Cajun records show Mr. Aucoin’s son did not work on Friday, May 21, 2004, he could not have been informed by Mr. Aucoin of the accident on the day it allegedly happened. However, the testimony of both these witnesses is equivocal.

|sCurtis Ourso indicated that he did not recall Mr. Aucoin telling him about the accident or showing him the scaffold on the day that it happened, but Mr. Ourso could not definitively state that Mr. Aucoin did not tell him that day. Mr. Ourso testified that he remembered being told over the weekend by Mr. Aucoin that his neck was hurting, but he did not recall Mr. Aucoin telling him that his neck pain was caused by a work injury until the following Monday. Mr. Ourso testified that he believed Mr. Aucoin was injured as he alleged. Mr. Ourso further confirmed that Jamie Blanchard told him that he had also hit his head on the same pipe, but Mr. Blanchard did not see Mr. Aucoin hit his head.

Mr. Aucoin’s son testified that his father told him about the accident on the day that it happened, during the work day. Percy Aucoin, Jr. testified that he thought the day of the accident was a Friday, but when told by counsel that Cajun records showed he did not work on the Friday at issue, Percy indicated he was unsure of the exact date and that it could have been Wednesday or Thursday.

Brent Richard testified that he was the site superintendent in May of 2004, and that Mr. Aucoin’s accident was reported to him on the Tuesday after it occurred. Mr. Richard inspected the scaffolding at issue and testified that it was in a “very congested area” and that there was a pipe eighteen to twenty inches from the scaffolding. During his investigation of the accident, Mr. Richard interviewed Jamie Blanchard, who initially gave a written statement saying he saw Mr. Aucoin hit his head, but later indicated he did not actually see the accident. Mr. Blanchard also told Mr. Richard that he had hit his own head on the pipe as well. Mr. Richard also confirmed that Percy Aucoin, Jr. did not work on Friday, May 21, 2004.

1 r,Troy Lake testified that he was the company’s safety director at the time of the accident. He knew Mr. Aucoin and found him to be honest and reputable. Mr. Lake believed that Mr. Aucoin was truthful about the occurrence of the accident. Mr. Lake further testified that he trained the employees to report accidents immediately, but acknowledged that it sometimes happened that accident reports were made days after an accident had actually occurred.

In ruling in favor of Mr. Aucoin, the trial court gave the following oral reasons for judgment:

The first issue is whether or not the court finds that Mr. Aucoin sustained an accident or injury in the course and scope of his employment. The court is of the opinion that he did. I don’t think anybody is exactly sure on which day, whether it was Wednesday, the 19th, or whether it was Friday, the 21st, but after looking through all of the evidence— all of the documentary evidence as well as going back through the testimony— I am convinced that he did, indeed, sustain an accident on the job in that week.
There is plenty of confusion in the case. There is plenty of confusion on Mr. Aucoin’s part, but I have found plenty of confusion to go around. I have found confusion in Dr. Roundtree’s notes versus the written report. I have found confusion with Dr. Isaza. I have found confusion with Mr. Richard. I have found some confusion with Mr. Ourso and plenty of confusion with Ms. [Matthews] on what they say things say that they don’t apparently seem to say and with regard to different timings of things. After looking through everything, I am convinced of the fact that he sustained an accident and I found Mr. Aucoin to be highly credible.
I never saw the deposition of Mr. Aucoin to compare it to what I heard today, but one of the biggest telling things— and I assume the reason I didn’t see Mr. Aucoin’s deposition, is because he didn’t change his testimony between today and when he gave it. Apparently had Mr. Aucoin never mentioned in discovery or in depositions that he ever had any pain prior to this accident, nobody would ever have known that. Obviously in his deposition or in his discovery, he mentioned that he did have some pain because in the first statement— it’s true that he said he did not have any problems. [Ms. Matthews] asked him about soreness, but she asked several more questions and he said, I didn’t have any problems; I was working. It’s my appreciation that he was zeroing in on it being something major; something that would require treatment.
|7When asked by Dr. Isaza, did you have any problems before, it was, no. He was pretty much asymptomatic before. Now that is not a word that would come from a sixth grader, asymptomatic. That is a word that Dr. Isaza is using, so obviously he asked questions that led him to believe Mr. Aucoin was totally asymptomatic or at least asymptomatic in general. Whether he asked him — - for anybody to think that anybody that sustained a fusion would not have an occasional headache or occasional neck pain I think begs the question. You would expect that. What you’re looking for is anything of any magnitude that would take treatment. He never was treated by any doctors in this interim. He never, as far as we can— there’s no evidence that he ever missed any work because of any pain in his neck area. The fact that he did not apprise them of having occasional pain I don’t find to be of any great magnitude.
Dr. Isaza, in his deposition, did not say that if he had pain before that it would not be related. He did not say that. What he said— it’s on page 27 of his deposition, “If he was having symptoms all along, then I would say, well, you know, when did the symptoms start and how bad were they; if he was aggravated or whether the pain was escalating; how much was the aggravation? All that would need to be answered.” So he did not say that if he had pain before and he didn’t have it after that that would not make it related. What he said was that he would have needed to ask more questions and find out whether it would have been aggravation. We all know that under the [Peveto] standard, it’s a given, that if you are more disabled after an injury than you were before, then it’s compensable.
Also, I have in Dr. Isaza’s records that apparently he’s a little bit confused. He puts in his report of 6-18 that Mr. Aucoin gave him an injury date of 5 — 19— 04 and that he hit his head on a pipe and fell, but when you look at his notes on 6-18, that’s not the history that Mr. Au-coin gave. The history that Mr. Aucoin gave was that he was climbing a ladder and hit his head on a pipe. That’s the history that Mr. Aucoin gave. Like I said, there’s plenty of confusion to go around.
Dr. Roundtree— I have to say that I never saw a written report from Dr. Roundtree. It is not in his records. All that’s in his records are his handwritten notes, but I have to assume, based upon everything I read from Ms. [Matthews], that she received some kind of written report that said Mr. Aucoin told him that he had been having neck pain for approximately six weeks before the accident. There’s got to be some confusion here because I looked at every written note looking for anything and I will admit that it is very hard to read, but I really felt like I was able to finagle most of it out and nowhere in there is there any notion of even a six, six weeks or anything that looked like it could even remotely go there.
Also, although Ms. [Matthews] said that Dr. Roundtree’s report told her that his pain was due to arthritis and not related |sto the accident, his HICFA form of 5-26-04 says that his injury is related to the employment. Also, Dr. Roundtree diagnoses him on 6-1-04 as having arthritis, in parentheses, neck trauma involved. Dr. Roundtree is putting a relationship between the accident and his injury.
Ms. [Matthews] also is a little bit confused. Once again, she admitted that she never talked to Dr. Roundtree personally, so everything was from his written reports and that she just scanned his notes; that they were too difficult to read. ' She admitted that she never talked to Brent and on page 38, that she said Curtis told her that the tag did not say, no overhead obstruction. I specifically asked Mr. Ourso if he even looked at the tag and he said he never even went up there to look at the tag. She’s saying that he did look at the ’ tag and the tag said, “No overhead obstruction” on it.
She’s reading verbatim in her deposition from the report of Dr. Roundtree, which I have to accept because I don’t have the report. She says that it read, “Patient said that he had neck pain about six weeks prior to injury.” If, indeed, he actually said that, although I could not find it anywhere in Dr. Round-tree’s records, it’s her interpretation that he means “for six weeks,” when it could be as easily that he had neck pain one time six weeks before the injury.
Like I said, there’s plenty of confusion to go around. I find that everybody was in agreement on. what the situation was; the scaffolding, the ladder, the pipe. Whether it was tagged or untagged— other than the fact that some say it was and some say it wasn’t at different times— it’s of no consequence for workers’ compensation; even if he saw that there was an obstruction and hit his head, it’s still compensable. Everyone indicated, except for Mr. Richard— now he kind of eluded [sic] to how things have developed now— that they all felt that Mr. Aucoin had injured himself that day on that job.
... [Everybody differs a little in terms of Jamie Blanchard and we don’t have him here to tell us what happened. I’ve got Mr- Richard telling me that [Jamie Blanchard] signed a statement that said he saw it and that Mr. Richard tore it up because he recanted the statement. All right. We have Mr. Ourso, who apparently got the statement from Mr. Blanchard and gave it to Mr. Richard, but he also says that Mr. Blanchard told him that he was told, but that he didn’t see it, but then he turned in a written statement that has this on it. I believe that both the gentlemen probably struck their heads. Luckily, only Mr. Aucoin has sustained a disability as a result of it. There is more than enough evidence to support his version of how the accident occurred.
The reporting situation between him and Mr. Ourso— I think there’s some confusion on both sides as well. I think there’s even some more confusion on the part of Mr. Richard, who apparently signed off on the report that was made in this matter, the notice of incident report. His signature is dated the day before he ever even knew about the accident. The incident report is filled out and signed by what appears to be Brent |flRichard on 5-24-04, which is the Monday before he said he even knew what happened.
Nobody is perfect in this situation on either side, but once I take everything into consideration and once again, I found Mr. Aucoin to be very credible. Actually I found everybody to [be] very credible. I think this is one of those situations where nobody remembers the facts exactly as they actually happened.
As to the nature and extent of his disability, the court finds that Mr. Au-coin’s preexisting condition was aggravated by this accident and that his present disability is directly related to the accident. He was symptomatic before, but he was much more symptomatic after; and he was not disabled before and now he is disabled after. The court finds that the nature of the disability is borne out by the accident as an aggravation of a preexisting condition under the [.Peveto] standard.
The court finds that he is in the supplemental earnings benefits category as he as recently as the deposition of Dr. Isaza— Dr. Isaza was asked at that time, “Do you feel he can still do light duty work?” and he said, ‘Tes.” We don’t have anything after that, so we go with that. He’s at light duty and supplemental earnings benefits are owed from 11-3-04 to date.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the factfinder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 696 So.2d 551, 556 (La.1997). See also Anderson v. Eckerd Corp., 2005-1381, p. 4 (La.App. 1 Cir. 6/21/06), 939 So.2d 386, 388, writ denied, 2006-1849 (La.10/27/06), 939 So.2d 1283.

|-i (Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. When factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Authement v. Wal-Mart, 2002-2434, p. 6 (La.App. 1 Cir. 9/26/03), 857 So.2d 564, 570.

The fact that an employee does not notify his employer immediately that he suffered an accident, or does so several days after the date of the alleged injury, does not prohibit a finding that the employee sustained an accident. Moreover, an employee should not be barred from recovery because he did not realize or diagnose the full extent of his injury immediately after it happened. Authement v. Wal-Mart, 2002-2434 at p. 7, 857 So.2d at 571.

The determination of whether an accident occurred is to be construed from the worker’s perspective. Notably, however, the claimant’s burden of proof is not relaxed, for he must still establish a work-related accident by a preponderance of the evidence. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the claimant’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Moreover, barring circumstances that cast suspicion on the reliability of the claimant’s uncontradicted testimony, the trial court should accept the testimony as true l^when determining whether the claimant has discharged his burden. Authement v. Wal-Mart, 2002-2434 at pp. 7-8, 857 So.2d at 571.

After a thorough review of the record presented in this case on appeal, we are unable to say that the OWC judge committed manifest error in finding that the claimant suffered an injury as alleged. This case turned on the credibility of the claimant, who the OWC found to be truthful. Although there were some minor discrepancies among the claimant’s witnesses regarding certain facts about the accident, the OWC judge did not find them significant or sufficient to cast doubt on the claimant’s credibility.

Cajun and St. Paul further argue on appeal that Mr. Aucoin violated LSA-R.S. 23:1208, which proscribes willful false statements or representations made to either obtain or defeat the payment of workers’ compensation benefits, under penalty of fine and/or restitution and/or forfeiture of benefits. The OWC judge rejected these assertions and did not find that Mr. Aucoin had made any willful false statements or representations in this case. We likewise find no error in this ruling.

CONCLUSION

For the reasons assigned, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are to be borne by defendants/appellants, Cajun Constructors, Inc. and St. Paul Mercury Insurance Company.

AFFIRMED.

      . Although St. Paul was named in the claimant’s petition and did file a waiver of citation and acceptance of service with the OWC, the Traveler’s Insurance Company joined with Cajun in the answer to the action. Further, the adjuster in the case, Joyce Matthews, referred to the insurer as “St. Paul Travelers.” However, since only St. Paul filed a motion for appeal, we will refer herein only to the appellant, St. Paul.

      . This surgery was disclosed to Cajun at the time Mr. Aucoin began his employment with the company.

      . Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689.


author: DOWNING, J.

text:
    Rickey P. ADAMS v. DEPENDABLE SOURCE CORPORATION.
    No. 2006 CA 1331.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Henri Michel Saunders, Baton Rouge, Counsel for Appellee Rickey P. Adams.
    Denis Paul Juge, Metairie, Counsel for Appellant Dependable Source Corporation.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

| gThis is an appeal of a judgment rendered by the Office of Workers’ Compensation (OWC) that awarded Rickey P. Adams (Adams) benefits, medical expenses, penalties, and attorney fees. For the following reasons, we affirm the OWC judgment.

Dependable Source Corporation and its insurer, The Gray Insurance Company (Dependable), appeal the judgment and allege that the trial court erred as follows:

1) In calculating the average weekly wage based on a four-week period rather than a twenty-six week period.
2) In awarding Supplemental Earnings Benefits (SEB) from July 14, 2004 and only crediting wages earned and not crediting the 40 hours of work offered but not worked by Adams.
3) In failing to give the employer credit for Adams’ light duty earning capacity after employment was terminated October 17, 2004.
4) In ordering that SEB is to be paid by the defendants “until further order of this Court.”
5) In finding that the employer failed to timely initiate SEB and awarding $2,000 in penalties.
6) In finding that the SEB payments made by the defendants were incorrect and in assessing them $2,000 in penalties.
7) In awarding attorney fees of $8,000.

FACTS AND PROCEDURAL HISTORY

Adams was a truck driver who was seriously injured while driving for Dependable, a company providing businesses with drivers. Adams was released for “light-duty” about six weeks after the accident. Dependable subsequently created a position for him entitled “greeter,” which apparently had no duties but required him to spend the day in the office. The job paid $9.00/hour, and Adams could potentially work forty-hours a week. Adams |R“greeted” for about fourteen weeks until he was terminated for sending an inappropriate e-mail from his home computer to a female co-worker’s private computer.

Adams filed a Disputed Claim for Compensation alleging that prior to the accident he was earning $936.66/week. He also alleged that his employer was paying him to perform meaningless light duty work and was not paying SEB benefits. Dependable’s answer denied that Adams was disabled as a result of a work-related injury, was able to earn a substantial wage, and was not entitled to benefits. It also claimed to be entitled to offset any compensation paid Adams since the alleged accident. Dependable also claimed to be entitled to offset all medical expenses paid by a third party without authorization and pre-approval.

At trial the OWC found in favor of Adams. It calculated Adams’ average weekly wage by using his check stubs for the four weeks preceding the accident. It further ruled that Adams was entitled to total temporary indemnity benefits (TTD) in the amount of $429/week from May 21, 2004, the date of the accident, until July 14, 2004, the date he was released for “light duty” employment. It also ruled that Adams was to be paid SEB in the amount of $429/week from the date he returned to “light duty” through the present, ongoing “until further orders of this court.”

The OWC agreed that Dependable was entitled to a credit for any wages it paid during Adams return to the “light duty” position, but denied any credit after the termination date, October 17, 2004, through the present. [4The OWC ordered Dependable to pay all accident-related medical expenses, including an emergency room visit and treatment with Dr. Tom Rathmann.

The OWC assessed a $2,000 penalty for the arbitrary and capricious failure to timely initiate Adams’ SEB. It also assessed another $2,000 penalty for failing to pay the proper SEB rate when benefits were finally instated. It further assessed another $2,000 penalty for Dependable’s failure to pay an emergency room bill. This breach triggered an attorney fee award in the amount of $8,000.

Adams answered the appeal seeking additional attorney fees for expenses incurred in having to respond to this appeal.

DISCUSSION

Standard Of Review

The appellate review of factual findings is governed by the manifest error standard consisting of the following two-part test: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. (Citation omitted). A factual finding cannot be set aside unless the court finds that it is manifestly erroneous. Resell v. ESCO, 549 So.2d 840 (La.1989).

Calculating the Average Weekly Wage

Dependable argues in its first assignment of error that the OWC used an incorrect formula to calculate Adams’ weekly wage. It contends that the calculation depends on how the employee’s wages were determined at the time of the injury. In this case, it argues that Adams was not always paid an hourly rate and could accept or reject any assignment; therefore, his average weekly wage should not have been limited to an average of four checks prior to his accident. It argues that some jobs Adams worked were paid hourly, some paid mileage only, and others paid a combination of hourly, mileage, and delay time. At the time of the accident, Adams was driving for Ryder | ¡¿Trucks and being paid $12.50/hour for delay time, $5.00/stop, and .27 cents/mile.

Dependable argues that La. R.S. 23:1021(10)(d) provides the correct method for calculating benefits for employees paid in unit, piecework, commission, or other basis. It argues that pursuant to the statute, his wages should have been calculated on a twenty-six week period, and multiplied by the average number of days he worked per week. In using this formula, it argues, Adams average weekly wage should have been $335.06, less then than the wage based on the $9.00/hour it was paying him.

The OWC disagreed. It commented on numerous discrepancies between Adams’ checks and payroll records. In oral reasons, the OWC said that the fairest way to handle this pay confusion was to just use the amount on the check stubs for the gross taxable earnings for four weeks pri- or to the accident. The OWC found that Adams was essentially classified as an hourly employee although his earnings were based upon several variables.

Our review of Adams’ payroll checks indicate he was paid by the hour and that Dependable admitted this to be true. While the payroll information was broken down into several categories, including mileage, per diem, hourly wage, and stop-delay time, the total was then converted to an hourly figure. The record also reflects Dependable originally figured Adams’ average weekly wage- using a four-week calculation of $429/week. At some point, the calculation was adjusted to reflect his 26-week average. The record reflects that neither the OWC nor Dependable personnel could determine the accuracy of the amounts. Considering the record, evidence, and testimony, we conclude that the OWC had a reasonable basis to make its calculation as it did and this assignment of error is without merit.

| Supplemental Earnings Benefíts from July 14, 2004 — Present

Dependable contends that Adams was not entitled to receive SEB because he never demonstrated that he could not earn 90% of his pre-injury wages. It argues that the statute does not allow a claimant to choose not to work when work is available. It claims that Adams was given a job earning $9.00/hour, and could have generated $360/week, which was more than his average weekly wage based upon a twenty-six week calculation. Thus, no SEB should have been owed.

In the second part of this assignment of error, Dependable alleges that the OWC failed to consider that Adams seldom worked a forty-hour week and only gave them credit for his actual earnings. Dependable cites no law to support this argument.

An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). The SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and suitable jobs are available. Blanchard v. Federal Exp. Corp., 95-0349, p. 4 (La.App. 1 Cir. 11/9/95), 665 So.2d 11,13. However, a “suitable job” is one that the claimant is not only physically capable of performing, but one that also falls within the limits of the claimant’s age experience, and education. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 11 (La.7/1/97), 696 So.2d 551, 557.

Here, Adams was an eighteen-wheel truck driver. Dependable director, Rodney Mabile, testified that his insurer told him that it would be beneficial to everybody to create a- position for Adams and to keep him in this position as long as he had to. The “greeter” position was created entailing, no duties whatsoever. The record reflects that Adams was told not |7to answer the phone and that most days he sat around playing solitaire or reclining on the floor until someone came in for him to greet. Mr. Mabile testified that many days nobody entered the office to be greeted.

Further, the medical exhibits reflect that the OWC had sufficient evidence from which to conclude that Adams’ earning capacity was severely curtailed and that he was not engaged in suitable employment. Accordingly, we conclude that the OWC did not err in awarding SEB to Adams because he was not employed in a suitable job.

We also conclude that the OWC had ample evidence to find that Adams’ medical condition precluded him working all the potential hours allowed. Accordingly, the OWC did not err in only allowing Dependable a credit for the actual wages it paid Adams during his tenure as their “greeter.” The second assignment of error is without merit.

Failure To Give Credit After Termination

In its next assignment of error, Dependable asserts that the OWC erred in not allowing it a credit for Adams’ “earning capacity” even though he had been terminated. It contends that Adams had worked earning $9.00/hour, and therefore had a $9.00/hour earning capacity.

The OWC found that Adams had a problem working forty hours due to complications with his injuries. Adams testified that his spinal problems caused him pain when sitting for long periods of time. The OWC also found that Adams was essentially terminated for very little cause. As discussed above, Adams was a truck driver trying to fit into an office setting. He was never given a policy handbook nor told about office protocol.

When the OWC ruled that no credit would be given for Adams’ earning capacity after the date of his termination, he did not state his reasoning. However, when an employee is not working or is earning less |sthan he is able to earn because of a job-related disability, it is the employer’s burden to establish his earning capacity. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 56 (La.1993). Obviously, the OWC concluded that the $9.00/hour “greeter” job was not an accurate indication of Adams’ true earning capacity. We conclude that this ruling was reasonable under the circumstances. The third assignment of error is without merit.

An Indefinite Order to Pay Supplemental Earnings Benefits

In Dependable’s fourth assignment of error, it argues that the OWC erred in awarding Adams’ SEB until further order by the court. Dependable contends that § 23:1310.8 C, which provides that this section shall not apply to SEB calculations, specifically prohibits modification. It argues that this exclusion is specifically established in La. R.S. 23:1221(3).

We disagree. Dependable misstates the statute. The very terms of the Workers’ Compensation Act contemplates SEB modification. An injured employee’s release for full-time work, his being declared totally and permanently disabled, or his death, would all require modification. Accordingly, we interpret the “until further orders by the court” language to represent the court’s reasonable case management strategy. La. R.S. 23:1221(3), does not preclude such language. Accordingly, this assignment of error is without merit.

Penalties

In its fifth and sixth assignments of error Dependable argues that the OWC erred in finding that it did not timely initiate SEB and is erroneously calculating the amount of the benefit, thereby triggering the penalty statute. It argues that had the OWC applied the correct calculation, no SEB would be owed since the “greeter” job could have earned more wages than Adams was earning before his accident.

[ sPenalties are awarded pursuant to La. R.S. 23:1201. The first $2,000 penalty was awarded based upon Dependable’s failure to timely initiate SEB. The second $2,000 penalty was triggered when Dependable miscalculated the amount of SEB due Adams. We have upheld the OWC determination of Adams’ right to and calculation of the SEB benefit. Accordingly, these assignments are without merit.

Attorney Fees

In Dependable’s seventh assignment of error, it argues that the court erred in awarding $8,000 in attorney fees. Dependable points out that the amount is unfair because the penalty was due to an oversight resulting in its failure to pay a medical bill.

Louisiana Revised Statute 28:1201 F provides for an attorney fee award for failing to pay medical bills within the time prescribed pursuant to 23:1201. The amount of the award is to be reviewed using the “abuse of discretion” standard. Lane Memorial Hosp. v. Gay, 03-0701, p. 7 (La.App. 1 Cir. 2/23/04), 873 So.2d 682, 686. In this case, the OWC had ample opportunity to observe the preparedness of Adams’ attorney. The hearing was relatively lengthy, and Adams’ attorney obviously was well prepared. The exhibits are voluminous and well documented. Adams’ attorney filed pleadings, exhibits, and a memorandum of law. The OWC could, through experience, reasonably judge the amount of time necessary to present the case and the value of that time. We conclude that the award is supported by the record, and the OWC did not abuse its discretion in determining the amount awarded in attorney fees. Therefore, the award shall remain undisturbed. This assignment of error is without merit.

ImANSWER TO APPEAL

Pursuant to LSA-C.C.P. article 2133, Adams answered the appeal and sought additional attorney fees. Workers’ Compensation claimants are entitled to increased attorney fees to reflect additional time and effort spent in defending an employer’s unsuccessful appeal. Leonard v. James Indus. Constructors, 03-0040, p. 10 (La.App. 1 Cir. 5/14/04), 879 So.2d 724, 731. We find Adams’ request for attorney fees to be supported by the law and the record. Therefore, we conclude that Adams is entitled to collect attorney fees in the amount of $2,500 for the defense of this proceeding.

DECREE

For the above reasons assigned herein the judgment of the OWC is affirmed. Judgment is further rendered in favor of Rickey P. Adams for additional attorney fees in the amount of $2,500. Costs are assessed to Dependable Source Corporation and its insurer, The Gray Insurance Company.

AFFIRMED.

      . Adams’ track was traveling westbound on I-10 when a flatbed trailer dislodged from a vehicle traveling eastbound, crossed the median, and struck him. Adams’ vehicle hit an exit sign, jack-knifed, and ran off the roadway. He fractured four cervical disks when his head hit the cab of the truck.

      . The validity of this termination is not at issue; it has not been raised as an assignment of error.

      .The record is unclear regarding the location of the private computer or how Dependable found out about the e-mail that involved a joke about President Bush. The co-worker did not testify, but Adams testified that she thought it was funny and forwarded it on to her husband.

      . The itemized amounts are May 16, ($525.75), May 9, ($981.40), May 2, ($805.96), April 25, ($643.03). This results in an average weekly wage of $724.03, resulting in a weekly compensation of $429/week.

      . A third $2,000 penalty was imposed due to Dependable’s failure to pay a certain medical bill, but this penalty was not appealed.


text:
    ALLSTATE INDEMNITY COMPANY v. J. Robert WOOLEY, Commissioner of Insurance for the State of Louisiana.
    No. 2006 CA 1388.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      David R. Kelly, Baton Rouge, Counsel for Plaintiff/Appellee Allstate Indemnity Company.
    Chris B. Fontenot, Sr., Colleen Noel Wertz, Baton Rouge, Counsel for Defendant/Appellant Commissioner of Insurance for The State of Louisiana.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

| ¡.This appeal by defendant J. Robert Wooley, Commissioner of Insurance for the State of Louisiana, acting on behalf of the Louisiana Department of Insurance (Department), arises out of a dispute with plaintiff Allstate Indemnity Company (Allstate). After the Department sought to impose a penalty on Allstate pursuant to La. R.S. 22:1072, Allstate brought suit in the Nineteenth Judicial District Court seeking declaratory judgment against the penalty. The trial court decided in Allstate’s favor and this suspensive appeal by the Department followed. Allstate answered the appeal. For the reasons below, we affirm.

FACTS AND PROCEDURAL STANCE

Allstate brought this suit on September 26, 2003 seeking declaratory judgment against the Department’s attempted imposition of a penalty on Allstate’s payment of its 2002 premium tax. In calculating the amount due for 2002, Allstate’s tax department applied multiple annual tax credits that it had earned in previous years pursuant to La. R.S. 22:1068(E)(l)(a), a tax credit program that allows insurers to deduct amounts based on sums they invest in Louisiana “capital companies.” The program encourages insurers |sdoing business in Louisiana to participate in the State’s economic stimulation, technological development, and job creation efforts.

According to its tax department’s understanding of the statute’s “carry forward” provision, Allstate applied unused credits from previous years and calculated a total credit of $2,143,058.00, which it deducted from its total tax due of $2,547,274.00. The company filed timely before the March 1, 2003 deadline and included payment reflecting the difference of $404,216.00. The Department received Allstate’s payment and subjected the return to routine auditing along with approximately fifteen hundred other such returns. During the course of this audit, which took several months, Allstate’s deductions raised a flag, at which time the assistant chief examiner of the Department’s tax division contacted Allstate to discuss the potential problem and seek clarification.

After what appears to have been solely telephone contact, the Department mailed a “courtesy letter” to Allstate on July 30, 2003 asserting that the company had overstated its credits in claiming over $2 million when in fact it was entitled to claim only $853,783.00. The letter instructed Allstate to pay $1,212,136.90 in addition to a twenty-five percent penalty of $303,034.22 pursuant to La. R.S. 22:1072 (quoted infra), which governs assessment of penalties for delinquency in payment of the premium tax.

Upon review, Allstate’s tax personnel agreed with the Department’s reading of La. R.S. 22:1068(E) and within thirty days of its receipt of the | ¿Department’s letter, Allstate paid the $1,212,136.90 tax due, but not the penalty amount of $303,034.22. The company disputed the penalty and requested a waiver, which the Department declined because it interpreted La. R.S. 22:1072 penalties as mandatory and not within the discretion of the Commissioner of Insurance. Allstate requested a hearing on the issue, which the Department referred to the jurisdiction of the Nineteenth Judicial District Court, at which time Allstate brought this suit.

The Department reconvened, seeking enforcement of the penalty as well as an additional penalty for costs pursuant to La. R.S. 22:1081. By this time, the same problem had arisen concerning Allstate’s taxes due for the first quarter of 2008. The parties stipulated to the following amounts: if the Department won, Allstate would owe penalty costs of $309,920.29 ($303,034.22 for 2002 and $6,886.07 for the first quarter of 2003); if Allstate won, it would owe no further amounts to the Department for 2002 and the Department would refund to Allstate the amount of $38,569.06, which it had taken from Allstate’s quarterly payment and applied as satisfaction of the penalty for the first quarter of 2003.

A bench trial was held on January 24, 2006 and in oral reasons handed down on February 17, 2006, the court found for Allstate, citing the company’s history of good corporate citizenship and good faith interpretation of the statute in calculating its taxes due. The court explained that it “read the case law to say that if there is a good faith provision even in a mandatory tax setting that Allstate is entitled to receive the benefit of their good faith.” The court found no penalty due for 2002 and ordered the 15Pepartment to refund to Allstate the sum of $38,569.06 in a judgment dated March 3, 2006.

After its motion for new trial or for judgment notwithstanding the verdict was denied, the Department brought this appeal assigning the following errors: (1) the trial court erred in finding a good faith exception to a mandatory tax, (2) the trial court erred in failing to find that Allstate must pay a penalty since it did not file and pay its tax due in a timely manner, (3) the trial court erred in finding that it had authority to waive a mandatory tax penalty, and (4) the trial court erred in failing to impose penalties for the cost of this litigation.

Allstate answered the appeal, asking that if we reverse the trial court’s decision, we find that: (1) no penalty was owed because no additional taxes were owed, or in the alternative, that (2) the statute at issue does not authorize a penalty when a taxpayer timely files its return and pays the taxes as shown on its return, or in the alternative, that (3) the statute at issue does not authorize a penalty here because Allstate paid the additional assessed taxes within thirty days of its receipt of the assessment letter from the Department.

DISCUSSION

This matter brings before us a number of statutes as well as several more general policies and legal principles. The primary statute at issue is La. R.S. 22:1072, which empowers the Department to assess penalties when insurers’ license tax payments are deemed delinquent:

A. In case of any failure to make a report or to make payment of license tax as required by this Chapter, a penalty of five percent if one to thirty days late, of ten percent if thirty-one to sixty days late, of fifteen percent if sixty-one to ninety days late, of twenty percent if ninety-one to one hundred twenty [ Sdays late, or of twenty-five percent if more than one hundred twenty days late, shall be added to the amount of tax due and payable to the commissioner of insurance along with the tax due, unless evidence to his satisfaction is submitted to the commissioner to show that the failure was due to some unforeseen or unavoidable reason, other than mere neglect.
B. If the delinquency is for more than thirty days after the due date of the report or after the due date for payment of license taxes hereunder, neglect will be presumed and the penalty shall be added without any discretion on the part of the commissioner of insurance. After the lapse of thirty days, until the report is filed and the delinquent license paid, the commissioner of insurance shall revoke the authority of the delinquent taxpayer, and of all of said taxpayer’s agents to do business in this state.
C. In no event shall the penalty exceed twenty-five percent of the total amount of the tax due nor be less than twenty-five dollars.

The Department argues that Allstate’s erroneous calculation of its tax obligation left due a sum of over $1.2 million that remained unpaid until the Department contacted Allstate during the summer of 2003. The Department asserts that the $1.2 million was therefore delinquent for more than thirty days past the original due date of March 1, 2003 and thus subject to the maximum twenty-five percent penalty, roughly $300,000.00. The Department asserts that Allstate’s miscalculations: (1) amounted to “mere neglect” according to the statute, (2) are not defensible as either “unforeseen” or “unavoidable,” and (3) cannot be waived (despite Allstate’s good faith) because section (B) of the statute provides no discretion to the Commissioner of Insurance to, waive the penalty.

Allstate bases its argument against the penalty on its good faith reading of the tax credit statute sections that limit the amount of allowable credits and permit the tax credits to be carried forward on a company’s premium return, La. R.S. 22:1068(E)(2) and (3):

|7(2) The premium tax reduction determined as provided in Paragraph (1) of this Subsection shall be subject to the following limitations:
(c) For investments made on or after January 1, 1991 and before January 1, 1999, the tax reduction utilized in any year for any group of affiliates shall not exceed twenty-five percent of the gross premium tax liability for such group, before any credits, for the year in which the investment was made.
(3) The tax reduction as determined by Paragraph (1) of this Subsection and as limited in Paragraph (2) of this Subsection shall be applied as follows: (a) for tax reduction credits granted to investors prior to January 1, 2001, the tax reduction shall be applied to the premium tax liability not to exceed ten percent of the premium tax reduction in any one year until one hundred percent of the premium tax reduction has been claimed by the insurer.. .provided, the reduction in any taxable year shall not exceed the premium tax liability for such taxable year. Notwithstanding the provisions of this Paragraph to the contrary, if a holder of premium tax reduction credits authorized under this Subsection does not use credits that are generated after December 31, 1999, and which are eligible to be used in a given calendar year, those premium tax reduction credits may be carried forward and used in any subsequent year until such credits are exhausted; provided, the reduction in any taxable year shall not exceed the premium tax liability for such taxable year.

Allstate also points to a set of legal principles and rules of statutory construction. First, tax statutes are to be liberally interpreted in favor of the taxpayer and strictly construed against the taxing authority; any doubt or ambiguity in such statutes is resolved in favor of the taxpayer. Strain v. Almerico, 2000-0088, p. 5 (La.App. 1 Cir. 2/16/01), 808 So.2d 467, 470. Along these lines, where a tax statute is susceptive of more than one reasonable interpretation, the construction less onerous to the taxpayer must be adopted. Contract Mgmt. Services, Inc. v. State ex rel. Dep’t of Labor, Office of Employment Security, 98-2010, p. 6 (La.App. 1 Cir. 11/5/99), 745 So.2d 194, 198.

IsAlIstate relies likewise on the principle that statutes imposing penalties or sanctions are to be interpreted strictly against imposition of a penalty, especially against those who act in good faith. Vaughn v. Franklin, 2000-0291, p. 8 (La.App. 1 Cir. 3/28/01), 785 So.2d 79, 86, Frederick v. Ieyoub, 99-0616, p. 9 (La.App. 1 Cir. 5/12/00), 762 So.2d 144, 150. Allstate has provided several cases where this principle has applied in the tax context, including J. Ray McDermott, Inc. v. Morrison, 1996-2337, p. 18 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 207-08. The court there wrote: “[t]he Louisiana Supreme Court has recognized that a taxpayer’s good faith in failing to file a tax return or in failing to timely remit taxes due is a defense to the imposition of penalties.” Id. (citing BP Oil Co. v. Plaquemines Parish Gov’t, 93-1109, p. 20 (La.9/6/94), 651 So.2d 1322, 1334 and St. Pierre’s Fabrication and Welding, Inc. v. McNamara, 495 So.2d 1295, 1298 (La.1986).

Finally, the transcript of oral arguments on February 17, 2006 includes Allstate counsel’s statements that the legislative intent of the capital investment tax credit program reflects a clear policy choice to reward insurers for investing in the Louisiana’s economic health. In light of that goal, Allstate argues that the penalty statute should be strictly applied such that continued investment will be encouraged rather than thwarted.

Both sides have presented differing philosophical approaches to La. R.S. 22:1072. The Department seeks strict construction of the “letter” of the statute’s language to exclude a “good faith” exception that would negate the penalty. Allstate suggests a policy-based interpretation according to the “spirit” of the statute because penalty statutes are to be read against imposition of a penalty and also because tax statutes are to be interpreted in favor of the taxpayer and against the taxing authority.

1 ¡/While we agree with the Department’s argument for strict linguistic construction, we disagree with the Department’s interpretive focus on the statute’s limited exceptions when “unforeseen or unavoidable” reasons may excuse a penalty. The Department’s focus on individual words within the statute misses the forest for the trees. Taken as a whole, including its title, La. R.S. 22:1072 penalizes an insurer that is “late” or “delinquent” in filing or paying its premium tax. The penalty increases as the lateness or delinquency rises from thirty days to sixty days to ninety days to one hundred twenty days, then more. The plain language of the statute does not entail imposing a penalty on a payment that is made timely yet for an incorrect, disputable, or even erroneous amount.

By contrast, penalty statutes in the tax code under Title 47 clearly provide for the imposition of penalties on payments that are either untimely or incorrect. Louisiana Revised Statutes 47:1602 reads in pertinent part as follows:

A. When any taxpayer fails to make and file any return required to be made under the provisions of this Subtitle before the time that the return becomes delinquent or when any taxpayer fails to timely remit to the secretary of the Department of Revenue the total amount of tax that is due on a return which he has filed, there shall be imposed, in addition to any other penalties provided, a specific penalty to be added to the tax.
(1) In the case of a failure to file a tax return or of the filing of a return after the return becomes delinquent, the specific penalty shall be five percent of the total tax due on the return if the failure or delinquency is for not more than thirty days, with an additional five percent for each additional thirty days or fraction thereof during which the failure or delinquency continues, not to exceed twenty-five percent of the tax in the aggregate.
(2)(a) [I]n the case of the filing of a return without remittance of the full amount due, the specific penalty shall be five percent of the unremitted tax if the failure to remit continues for not more than thirty days, with an additional five | mpercent for each additional thirty days or fraction during which the failure to remit continues, (emphasis added)

Furthermore, the Department’s own “Policies and Procedures” publication includes extensive instructions for determining when a statement is “late” and how to proceed upon that determination. These, like the language of La. R.S. 22:1072, emphasize the problems associated with actual temporal lateness, including postmarks, overnight delivery services, and due dates. One such section reads: “A penalty is assessed in accordance with R.S. 22:1072, if a tax' statement is considered delinquent.”

It may indeed be the case that the Department of Insurance has the same power to penalize an insurer for an insufficient premium or license tax payment as the Department of Revenue has over all taxpayers. But our plain reading and strict construction of La. R.S. 22:1072, as well as the Department’s own internal policies and procedures for its application, convinces us that this statute cannot be the source of that power. Allstate should not have been penalized under La. R.S. 22:1072 for its timely yet incorrect premium tax payment.

The trial court based its decision for Allstate on its finding of a “good faith” exception against imposition of the penalty. Such an exception appears to be fairly established in Title 47 tax code jurisprudence, such as BP Oil Co., 93-1109 at p. 20, 651 So.2d at 1334 and St. Pierre’s, 495 So.2d at 1298. While extending this good faith exception by analogy from the tax code to the insurance code may be a valid judicial tool, that matter [^need not be addressed today. As we agree with the trial court’s results, we affirm its judgment. The Department’s assignments of error are without merit. We thus need not reach the issues raised by Allstate in its answer to the Department’s appeal.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s judgment. Costs in the amount of $407.40 are to be assessed against appellant, J. Robert Wooley, Commissioner of Insurance for the State of Louisiana acting on behalf of the Louisiana Department of Insurance (Department).

AFFIRMED.

DOWNING, J., concurs.

PETTIGREW, J., concurs with the results.

      . By letter dated September 2, 2003 the Chief Deputy Commissioner of Insurance advised Allstate counsel that the Department referred all disputes over contested premium tax issues to the Nineteenth Judicial District Court and not to the Division of Administrative Law.

      . Pursuant to Louisiana Revised Statutes 22:1061, "[t]here is hereby levied an annual license tax...on each domestic, foreign, and alien insurer engaged in the business of issuing insurance policies, contracts, or obligations; issuing endowment policies; or similar forms of contract obligations in consideration of the payment of a premium or other consideration for the issuance of such policies, contracts, or obligations, whether such insurer be operating in this state through an agent, other representative, or otherwise.”

      ."Recognizing that it is also in the public interest to ensure sufficient availability of venture capital for purposes of technological development and job creation, the premium tax reduction for insurers investing in certified capital... or in industrial or economic development corporations... shall be computed as one hundred percent of the amount of the investment at the time the investment is made... .The investment shall be in the form of cash or debt instruments that are obligations of the investing insurance company to the certified capital company or the industrial or economic development corporation. Such debt instruments shall be converted into cash at a rate of not less than ten percent per year from the date of the investment."

      . Louisiana Revised Statutes 22:1068(D) reads as follows: "Recognizing that it is in the public interest to... encourage investment in this state; and to enhance the economic and financial climate of the state, the legislature finds that a premium tax reduction for insurers investing in certain qualified Louisiana assets promotes the public interest.”

      . Quoted infra at p. 1193.

      . The parties' joint stipulations document indicates that Allstate had made quarterly payments for 2002 of $173,031.00, to which it added $231,185.00 payment with its statement mailed in late February 2003.

      . "The commissioner is authorized to collect any delinquent taxes and fees under this Part, or to represent the department in any proceeding under this Part. If any delinquent taxes or fees due under this Part require institution of legal proceedings to collect such tax or fee, a penalty in an amount not to exceed twenty percent of the delinquent fee or tax shall be paid by the delinquent person to cover the cost of investigation, administration, and collection.”

      . This assignment of error refers to a mandatory "tax” but the issue at hand is more properly one of a mandatory penalty.

      . “There clearly was a genuine issue of .material fact as to BP’s good-faith belief that it had fulfilled its tax obligation.”

      . "Considering the question of the taxpayer’s good faith and its effect upon the assessment of a penalty, we are unable to say the Board committed manifest error in its obvious con-elusion the taxpayer was in good faith....In Collector of Revenue v. J.L. Richardson Company, [247 So.2d 151 (La.App. 4th Cir. 1971)] supra, imposition of the penalty was declined because the taxpayer was under the belief it had a legal right not to make tax returns and its failure to file such returns was not done with any intention to avoid payment. This ease also presents an equitable situation warranting the taxpayer relief from the penalty phase of the assessment.”


author: McClendon, j.

text:
    Ernie Wayne FEIERABEND, Individually and as the Executor of the Succession of Emmilee Gordon Feierabend, and Paula Antonia Gordon v. James Wesley STARNS.
    No. 2006 CA 1386.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    Sacha Tessier, Alexis A. St. Amant, II, Baton Rouge, Counsel for Plaintiffs/Appellants Ernie Wayne Feierabend and Paula Antonia Gordon.
    Kenner O. Miller, Jr., Baton Rouge, Counsel for Defendant/Appellee Shelter Mutual Insurance Company.

      Amos H. Davis, Baton Rouge, Counsel for Defendant/Appellant James Wesley Starns.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

IgPlaintiffs, Ernie Wayne Feierabend, individually and as the executor of the Succession of Emmilee Gordon Feierabend, and Paula Antonia Gordon (the decedent’s adult daughter), and defendant, James Wesley Starns, appealed a summary judgment dismissing Shelter Mutual Insurance Company (Shelter), based on an intentional acts exclusion in the policy issued to Mr. Starns’ parents. After a thorough review of the record before us, we affirm.

The coverage issue here arose from a tragic fatal shooting. It is undisputed that Mr. Starns shot Mrs. Emmilee Gordon Feierabend three times with a .38 caliber revolver. The dispute is over the intentions underlying his actions. After shooting her, he removed her body from the car and drove to his home. His parents called 911, and told the operator where Mrs. Feierabend was located. The police were dispatched and found Mrs. Feierabend’s body at the scene of the shooting. Mr. Starns was arrested and charged with second-degree murder. Despite his claim of self defense, Mr. Starns was convicted of manslaughter.

Mr. Starns was 19 at the time of the incident, and approximately six feet and three inches tall. Mrs. Feierabend was 52. After his arrest, but before trial, Mr. Starns gave a statement to the police. In his statement, Mr. Starns claimed that he met Mrs. Feierabend at a local mall. He agreed to meet her again the next night at the same mall. The two met the next night and left the mall together in Mrs. Feierabend’s car. They drove to a secluded spot. Mr. Starns asserted that Mrs. Feierabend wanted to have sex, but he did not. She pointed a gun at him and told him to take off his clothes. Mr. Starns stated that he “grabbed the gun from her and [he] shot her.” The gun was later determined to belong to Mrs. Feierabend. He remembered that |she “shot her in the arm trying to get away from her ....” When she leaned toward him, he “pulled the trigger again,” but he did not know where he shot her. He told the police that he did not mean to shoot her. Afterward, he put the gun in his pants, removed her from the car, and drove home. He was upset and told his parents. When asked during the statement about which hand Mrs. Feierabend used to hold the gun, Mr. Starns replied that she held the gun “in the right hand, she was holding it like both hands.” He then “grabbed the gun out of her hands and shot her,” but again he denied that he meant to kill her. He further explained that he “grabbed the barrel of it and yanked it out of her hands.” He repeated that he “yanked the gun out of her hands and bam [he] shot her with it.” He thought that he shot her in the shoulder because he saw blood in that area. After he shot her, she smiled at him and reached toward him, so he “just pulled the trigger again” because he wanted to get away. When asked how many times he shot her, he said, “I don’t know if it was twice or 3 times.” When asked why he didn’t stop at a payphone and call the police, he replied, “I was thinking at the time that if I go to a payphone ... [p]eo-ple are gonna see blood on my pants and freak out or something ....”

Mrs. Feierabend’s family sued Mr. Starns for damages. Shelter, as the liability insurer of Mr. Starns’ parents, intervened. Subsequently, Shelter filed a motion for summary judgment based on policy language that excluded from coverage any bodily injury “expected or intended” by the insured. Shelter also asked for sanctions against Mr. Starns for refusing to comply with a court order compelling discovery. Shelter argued that Mr. 14Starns’ pre-conviction denial of an intention to kill was not enough to rebut Shelter’s showing, especially in light of Mr. Starns’ refusal to cooperate in discovery after his conviction was final. After a hearing, the trial court granted a summary judgment dismissing Shelter from the suit.

Plaintiffs and Mr. Starns appealed. The appellants assert that the trial court erred in finding that the injuries inflicted on Mrs. Feierabend were intended or reasonably expected by Mr. Starns.

POLICY PROVISIONS AND APPLICABLE LAW

The insurance policy in this case excluded “bodily injury ... expected or intended by an insured.” “Bodily injury” was defined as “bodily injury, sickness or disease, and includes care, loss of services, and resulting death.”

The insurer bears the burden of proof on the issue of whether an exclusion applies. Exclusions must be narrowly eon-strued and any ambiguity should be resolved in favor of coverage. Great American Insurance Company v. Gaspard, 608 So.2d 981, 984 (La.1992).

In Breland v. Schilling, 550 So.2d 609, 610 (La.1989), the Louisiana Supreme Court reviewed similar policy language in a case concerning an insured’s punch to the victim’s open jaw, which broke said victim’s jaw. The supreme court first noted that the purpose of liability insurance is to offer protection to the insured, and the intentional injury exclusion is added to prevent an insured from acting in a wrongful manner and expecting his insurer to cover any resulting damage. Breland, 550 So.2d at 610.- After reviewing the jurisprudence, the court interpreted the policy exclusion for 1 R“bodily injury or property damage which is either expected or intended from the standpoint of the Insured,” to mean that: Breland, 550 So.2d at 610 & 614. Finding that it was reasonable to conclude that the injury in Breland was more severe than the insured intended, the supreme court held that coverage was not barred. Breland, 550 So.2d at 614. In a concurring opinion, Justice Harry Lemmon noted that the insured’s subjective intent should be extracted from all the facts and circumstances. Breland, 550 So.2d at 615.

when minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred. (Emphasis added.)

In Great American Insurance Company, the supreme court reviewed the same exclusionary language at issue in Breland to determine coverage in a case of arson. The supreme court reiterated the Breland interpretation of when the exclusion would apply and stated that an “act is intended if the perpetrator desires the results of his action or he believes that the results are substantially certain to occur.” Great American Insurance Company, 608 So.2d at 985. The supreme court also adopted Justice Lemmon’s language from Breland and held that “ ‘[t]he insured’s subjective intent or expectation must be determined not only from the insured’s words before, at the time of, and after the pertinent conduct, but from all the facts and circumstances bearing on such intent or expectation.’ ” Great American Insurance Company, 608 So.2d at 986, quoting Breland, 550 So.2d at 615. Although the insured in Great American Insurance Company invoked his Fifth Amendment rights and refused to testify, the court, after reviewing the |fitotality of the facts and circumstances of the case, found that the insured, who had set fire to his building, knew that damage to other buildings “was substantially certain to follow. Such damage was, therefore, expected or intended from the standpoint of the insured.” Great American Insurance Company, 608 So.2d at 986.

In reaching its conclusion, the supreme court also considered whether a “reasonable policy holder would believe that his insurance policy would provide coverage for his criminal act of arson.” Great American Insurance Company, 608 So.2d at 986. The court found that “severe damage was intended” by the arsonist, and the liability insurer could not be excepted to cover the “severe damage” that resulted, including the destruction of buildings other than the insured’s. Id.

In Yount v. Maisano, 627 So.2d 148, 150 (La.1993), the supreme court confronted the same language as the Shelter exclusion for bodily injury “ ‘expected or intended by the insured.’ ” The Yount court had to determine whether the language excluded coverage for an insured who had repeatedly hit and kicked the victim in the face causing severe injuries. Yount, 627 So.2d at 149-50. The insured “testified that he did not intend or consciously desire to inflict serious injuries to [the victim] and that he did not intend to break [the victim’s] jaw.” Yount, 627 So.2d at 152. However, despite the insured’s stated intent, the court noted that the insured’s testimony was only “one factor to be considered .... ” Id. Again quoting Justice Lemmon’s language, the supreme court stated that the determination of the insured’s subjective intent must also include a consideration of the totality of the facts and circumstances surrounding the insured’s actions, intent, and expectations. Id.

17After its review of all the facts and circumstances and the Breland interpretation of how the exclusion is applied in particular scenarios, the Yount court found that when an insured viciously beats and repeatedly kicks a victim, the severe damages that result “are either intended by the insured or the insured must know that such injuries are substantially certain to result.” Yount, 627 So.2d at 153. As another basis for barring coverage, the court also found that the insured “could not reasonably expect his insurance policy to pay for the consequences of such a fierce and brutal beating ....” Id.

A motion for summary judgment must be granted if no genuine issue of material fact remains, and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B. The issue is never whether the mover will prevail at trial. Summary judgment is warranted only when reasonable minds must inevitably conclude that the mover is entitled to summary judgment. Bilbo v. Shelter Insurance Company, 96-1476, pp. 3-4 (La.App. 1 Cir. 7/30/97), 698 So.2d 691, 693, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312, “When a motion for summary judgment is made and supported as provided [by LSA-C.C.P. art. 967 A], an adverse party may not rest on the mere allegations or denials of his pleading, but his response.... must set forth specific facts showing that there is a genuine issue for trial.” LSA-C.C.P. art. 967 B. A failure to do so, will result in the grant of the motion for summary judgment. Id. Summary judgment is reviewed de novo. Bilbo, 96-1476 at p. 3, 698 So.2d at 693.

ANALYSIS

The insured’s statement that he did not intend to kill Mrs. Feierabend is not the only factor to consider. In our de novo review, we also considered the totality of the essential and material facts and circumstances surrounding |sthe actions, intentions, and expectations of the insured that were either undisputed or set forth in Mr. Starns’ own statements.

Based on our review of the record before us, we find that reasonable minds could not disagree over the insured’s reasonable expectation of what was substantially certain to occur based on his actions. Reasonable minds must inevitably conclude that the insured, by admittedly shooting Mrs. Feierabend more than once from a relatively short distance after gaining control of the gun, and by leaving her at the scene without summoning medical care or the police, intended to cause Mrs. Feierabend a severe, even extreme injury, including the possibility of death. Based on the clear interpretation of the exclusion afforded by the holding in Breland, “[w]hen a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is ... barred.” Breland, 550 So.2d at 614 (Emphasis added.) Secondly, we find that reasonable minds must also inevitably conclude that Mr. Starns could not have reasonably expected Shelter to pay for his shooting someone three times and leaving the victim at the scene unattended, which acts resulted in the death of the victim.

Thus, we find that Shelter met its burden of proof on the motion for summary judgment, and that appellants did not come forth with evidence necessary to show that a genuine issue of material fact remained as to Mr. Starns’ intention or reasonable expectation of what was substantially certain to occur based on his actions. After a motion for summary judgment is shown to be properly supported, “an adverse party may not rest on the mere allegations or denials ...: ”

Although we find that the acts here fit clearly within Breland’s specifically listed categories of when coverage is available or barred, the [9result here would be the same under the more general principles announced in Breland.

The record does not support appellants’ argument on appeal that Mr. Starns intentionally placed all of his shots in the area of the victim’s shoulder; arguably an area less likely to produce severe injury or death. The record does prove that Mr. Starns gained control of the gun and admittedly shot the victim at least twice, and thought he may have pulled the trigger a third time. Multiple shots to the body of an unarmed woman from a relatively short distance, coupled with Mr. Starns’ decision to remove her from the car and not to summon the police or medical care, shows that he must have expected that severe injuries, including death, were substantially certain to result.

As in Great American Insurance Company and Yount, this case arises from acts that are more serious and extreme than those at issue in Breland (punch to open jaw resulting in severe injury), Bilbo (insured punched the victim once, which caused a broken nose), or Jarrell v. Travis, 2004-0117 (La.App. 1 Cir. 2/11/05), 906 So.2d 551 (insured punched the victim once, causing severe injuries), the eases relied on by the appellants. The jurispru-dentially required consideration of the totality of facts and circumstances, not merely the insured’s stated intent, coupled with our supreme court’s decision not to recognize coverage for “a severe injury of any sort” that follows an act intended to cause some type of severe injury, resolves the problem presented by egregious or criminal acts by an insured who subsequently denies that he intended the injuries that resulted. Breland, 608 So.2d at 986; see Yount, 627 So.2d at 152. As with the case of the arsonist in Great American Insurance Company, when the insured intended to cause severe or extreme injury or damage, he cannot reasonably |inexpect his liability insurer to pay for the damages excluded by the policy, that is, those “expected or intended by an insured,” or to compensate the insured for injury or damages he must have known could follow such extreme actions. Great American Insurance Company, 608 So.2d at 986.

For these reasons, we affirm the summary judgment dismissing Shelter from the suit. The costs of the appeal are assessed one half to plaintiffs-appellants, Ernie Wayne Feierabend, individually and as the executor of the Succession of Emmi-lee Gordon Feierabend, and Paula Antonia Gordon, and one-half to defendant-appellant, James Wesley Starns.

AFFIRMED.

      . Shelter presented depositions to refute several of Mr. Starns' claims. On appeal, the appellants object to much of Shelter’s evidence as hearsay. However, the record contains no objections to submission of the evidence on the motion for summary judgment. Regardless of the validity of Shelter's evidence, for purposes of this review of a summary judgment, we relied on Mr. Starns’ version of the incident.

      . In a judgment signed on December 12, 2005, the trial court sanctioned Mr. Starns for refusing to cooperate in discovery, and prohibited him from offering evidence at a trial on the matter. In this appeal of the May 1, 2006 summary judgment, the appellants raise a concern over whether the trial court granted the judgment in part based on the sanction. However, we note that the hearing on the motion for summary judgment at issue in this appeal was held before the sanction judgment. Nothing in the trial court's judgment or reasons for judgment show that sanctions were a basis for the holding. In addition, we reviewed the record de novo.