text:
    Shane H. COLLINS, Sam H. Collins, and Barbara K. Collins v. MIKE’S TRUCKING COMPANY, INC., Star Insurance Company, Dwight L. Daigle, and Nutmeg Insurance Company. Richard Andrew Jackson v. Mike’s Trucking Company, Inc., Star Insurance Company, Dwight L. Daigle, and Nutmeg Insurance Company.
    No. 2005 CA 0238, 2005 CA 0239.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.
    Rehearing Denied June 30, 2006.

      Sean D. Fagan, Locke Meredith, Baton Rouge, for Plaintiffs/Appellees, Shane H. Collins, Sam H. Collins, Barbara K. Collins, and Richard A. Jackson.
    Stephen C. Carleton, James E. Moore, Jr., Bridget B. Denieola, Baton Rouge, for Cross-Claimants/Appellees, Nutmeg Insurance Co. and Twin City Fire Insurance Co.
    Patrick J. Briney, Richard R. Montgomery, Lafayette, for Intervenor/Appellant, Star Insurance Company.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   CARTER, C.J.

|aThese consolidated cases arose out of a motor vehicle accident. The interve-nor/appellant, Star Insurance Company (“Star”), appeals three judgments rendered after a four-day jury trial resulting in a multi-million dollar award against Star’s insureds, Mike’s Trucking Company, Inc. and Dwight L. Daigle (“Mike’s Trucking” and “Daigle”), who have not appealed or answered the appeal. For the following reasons, we affirm the trial court’s judgments.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2000, Shane H. Collins and Richard A. Jackson, both employees of Dixie Electric Membership Company (“DEMCO”), were injured when the truck they were occupying was rear-ended by a truck owned by Mike’s Trucking and driven by its employee, Daigle. Both Collins and Jackson were seriously injured; Collins suffered permanent brain damage requiring constant care and supervision. Collins and his parents filed suit against Mike’s Trucking, Daigle, Star (the liability carrier for Mike’s Trucking), the uninsured/underinsured motorist carrier for DEMCO, Nutmeg Insurance Company, and the excess carrier for DEMCO, Twin City Fire Insurance Company (collectively referred to as the “UM carriers”). Jackson later filed suit against the same defendants, and the two cases were consolidated. The UM carriers answered the suits and filed cross-claims against Star, Mike’s Trucking, and Daigle. Additionally, Louisiana Workers’ Compensation Corporation (the “WC carrier”) intervened to pursue its subrogation rights for reimbursement of workers’ compensation |4benefits and medical expenses paid to DEMCO’s employees, Collins and Jackson.

As the litigation progressed, Daigle and Mike’s Trucking stipulated that they were 100% at fault for the accident, leaving the amount of damages as the only issue for trial. In December 2001, a series of letters were exchanged between counsel for plaintiffs (Collins, his parents, and Jackson) and counsel for defendants (Star, Mike’s Trucking and Daigle), wherein the parties discussed settlement. Each letter contained an offer regarding the- money damages as well as language regarding indemnity provisions. Responses to each piece of correspondence had some portion marked out or stricken by one of the parties. Settlement documents were drafted, but never signed. In January 2002, Star, Daigle and Mike’s Trucking filed a motion to enforce settlement, relying on the series of letters as evidence of a compromise. After a hearing in which parol evidence was refused, the trial court denied the motion to enforce the settlement, finding that the letters did not reflect that a settlement had been perfected. The trial court indicated that its ruling was a final judgment; however, the record does not contain any written judgment denying the motion. No writ was ever taken from this trial court ruling.

In January 2002, the UM carriers paid the Collins plaintiffs $10,000,000 in full settlement of their UM claims. In the UM settlement documents, the plaintiffs assigned their rights by subrogation to the UM carriers, recognizing and reserving the UM carriers’ previously filed cross-_JclaimsB against Star, Mike’s Trucking, and Daigle. Shortly thereafter, also in January 2002, Star tendered the balance of its $1,000,000 policy limits, plus interest, to the plaintiffs via a concursus proceeding. Jackson settled his claims with the UM carriers in November 2002. Star was subsequently dismissed with prejudice from the consolidated actions, including the cross-claims; however, the UM carriers and the plaintiffs specifically reserved their claims against Star’s insureds, Mike’s Trucking and Daigle. Star then sought to intervene in the actions to unite with Mike’s Trucking and Daigle in resisting plaintiffs’ claims and the UM carriers’ cross-claims. Star was ultimately allowed to intervene in February 2003, pursuant to a stipulation between the parties.

The Collins case was tried on the issue of damages in March 2003, and the jury returned a verdict awarding the Collins plaintiffs a total of $16,555,000. The parties stipulated that the Jackson case had a value of $1,200,000. Final judgments were signed on June 16, 2003, against Mike’s Trucking and Daigle in accordance with the Collins jury verdict and the Jackson stipulation, and further recognizing the UM carrier’s cross-claims and a credit due Mike’s Trucking and Daigle for the amount tendered by Star prior to trial. Star was not cast in any judgment.

| fiBefore the judgments were signed, Star, Daigle, and Mike’s Trucking filed a motion “to establish appropriate credit and/or motion to determine form of judgment.” After a hearing in May 2003 on the motion, a third judgment was signed on June 17, 2003, wherein the trial court denied Star’s motion, ruling that Star lacked “the procedural capacity to demand a credit for any payment made by [the UM carriers or the WC carrier] against any amounts awarded in the Final Judgments rendered in this matter.” Additionally, the trial court ruled that the UM carriers did not waive their subrogation rights when they settled with the plaintiffs prior to trial; thus, Mike’s Trucking and Daigle were not entitled to a credit for the amounts paid by the UM carriers or the WC carrier. Star, Daigle, and Mike’s Trucking then filed a motion for devolutive appeal from all three June judgments. Star also filed an ex parte motion to reset a subpoena deadline, attempting to discover an alleged post-trial agreement between plaintiffs, the UM carriers, Daigle, and Mike’s Trucking, regarding a possible assignment of rights and release. The trial court took up both matters (the motion for appeal and the motion to reset subpoena deadline) on August 11, 2003.

At the hearing on the motions, the trial court observed that the alleged assignment of rights agreement had not been signed by all of the parties and the assignment of rights was irrelevant to the ultimate question of whether Star was-entitled to an appeal of the June judgments. The trial court also found that pursuant to the stipulation regarding Star’s intervention, Star had been allowed to participate in the trial only as a courtesy to insure a fair trial (in anticipation of a potential bad faith claim), and that Star did not have any right to participate in the proceedings after the trial, including appeal. The trial court, however, granted an appeal to Daigle and Mike’s Trucking. The trial court signed a judgment reflecting that Star did hot have any rights on [7appeal. Star filed a supervisory writ with this court, which we granted in part and denied in part, essentially ruling that Star had a right to appeal the June judgments. The Supreme Court denied the plaintiffs’ and UM carriers’ writ application for review of Star’s right to appeal. On remand, the trial court granted Star’s motion for devolutive appeal from the three June 2003 judgments. However, Daigle and Mike’s Trucking did not pursue an appeal.

Next, the plaintiffs and UM carriers filed a joint motion in this court to dismiss Star’s appeal. We denied the motion to dismiss in line with our previous writ action. Thereafter, the Supreme Court denied the plaintiffs’ and UM carriers’ writ application for review of our ruling on the motion to dismiss, thereby maintaining Star’s right to appeal. See Collins v. Mike’s Trucking Co., Inc., 05-1459 (La.12/16/05), 917 So.2d 1111. No other parties have appealed or answered Star’s appeal.

LAW AND ARGUMENT

Star raises eight assignments of error, grouped for ease of discussion by issue as follows:

Is Compromise Agreement (Assignment of Error Numbers 1 & 2)

Star argues that the trial court erred in its interlocutory ruling made in January 2002 (over one year prior to trial), wherein it found that there was no enforceable settlement agreement signed by all the parties. Star contends that the trial court’s failure to allow parol evidence on the question of whether the parties had reached a settlement was reversible error. We disagree.

A compromise is an agreement to adjust the differences of two or more persons by mutual consent for preventing or ending a lawsuit. Anderson-Dunham, Inc. v. Hamilton, 564 So.2d 823, 828 (La. App. 1 Cir.), writ denied, 569 So.2d 963 (La.1990). LSA-C.C. art. 3071 requires a writing (or a recitation in open court) for a valid compromise agreement. Jurisprudence allows for the writing and signatures to be contained in more than one letter or document. Id., 564 So.2d at 829; Michot v. Mose, 94-784 (La.App. 3 Cir. 10/17/94), 649 So.2d 441, 443, writ denied, 94-2828 (La.1/27/95), 650 So.2d 242. However, each letter that was exchanged between counsel in this case contained sections that were not agreed upon. Compromise is a bilateral contract. A letter by one of the parties setting forth their understanding of the agreement is not an agreement of the parties reduced to writing. Brasseaux v. Allstate Ins. Co., 97-0526 (La.App. 1 Cir. 4/8/98), 710 So.2d 826, 829.

The first letter from plaintiffs’ counsel to Star’s counsel conveyed plaintiffs’ offer of settlement and specifically stated that the offer was conditioned upon the inclusion of certain language involving indemnity issues. The second letter from plaintiffs’ counsel reiterated the original offer, clearly detailed plaintiffs’ understanding that Star’s counsel was in the process of communicating the offer to the defendants, and acknowledged that Star’s counsel had no authority to settle at that time. Star’s counsel responded to the second letter by facsimile with .the words, “This is not correct” written across the second letter. There was no reference as to what portion of the offer was incorrect. The third letter was from Star’s counsel, directed to plaintiffs’ counsel, outlining Star’s understanding of plaintiffs’ offer to settle, including indemnity provisions different from plaintiffs’ outline of the settlement terms. In essence, the third letter was a counteroffer to settle. The third letter also contained a blank signature line for plaintiffs’ counsel to sign indicating that plaintiffs “agree to the above-described settlement.” Plaintiffs’ counsel responded to the third letter by marking through the indemnity provision paragraphs, writing “This is not true!” on the letter, and sending the third letter back to Star’s counsel by facsimile without signing the line indicating that an agreement had been reached. Star’s counsel sent the fourth and final letter to plaintiffs’ counsel with an attached draft copy of a Receipt and Release document. However, the Receipt and Release document was never signed.

|inThe trial court correctly ruled that there was no writing evidencing a meeting of the minds on the terms of settlement. The parties disagreed (then and now) over the indemnity issues. Compromises regulate only the differences that appear to be clearly comprehended by the intention of the parties. See LSA-C.C. art. 3073. Star’s argument that parol evidence may be used to ascertain intent or to determine exactly what the differences were is not persuasive. The whole purpose of a writing is to avoid swapping a new dispute for an old one, avoid the necessity of credibility determinations, avoid litigation over the terms of a settlement, and avoid the need to surmise the parties’ intent after-the-fact. See Sweet v. Iberia Parish School Board, 99-483 (La.App. 3 Cir. 11/3/99), 746 So.2d 256, 258, writ denied, 99-3414 (La.2/4/00), 754 So.2d 237; Scott v. Green, 621 So.2d 1, 3 (La.App. 4 Cir.), writs denied, 629 So.2d 1139 (La.1993).

The series of letters exchanged between counsel show that there was no meeting of the minds. Star’s counter-offer contained in the third letter was never accepted, as plaintiffs’ counsel did not sign the letter in the designated place. In fact, the evidence shows that the counter-offer was rejected outright. Not only was the signature line left blank, but the two paragraphs in the counter-offer dealing with indemnity issues were marked through, with the words “This is not true!” appearing next to the marked-through paragraphs. Obviously, the indemnity issue was never agreed upon and the counter-offer was rejected. Thus, there was no compromise evidenced by the letters.

Parol evidence should not be allowed to prove the existence of a settlement agreement. Parol evidence would only be relevant to prove what the parties intended to be covered by the agreement, or the scope of the settlement. See Smith v. Leger, 439 So.2d 1203, 1206 (La.App. 1 Cir.1983). If plaintiffs’ counsel had signed the third letter but marked through the indemnity paragraphs, then an argument could be made that parol evidence might have been relevant to prove the intent of the parties or the scope of the settlement. However, that was not the factual scenario before the trial court. We find no manifest error in the trial court’s refusal to allow parol evidence or in its conclusion that there was no meeting of the minds regarding settlement.

Star’s first two assignments of error are without merit.

Jury Instructions Regarding UM Payments (Assignment of Error Numbers 3 &4)

Star argues that the trial court erred in failing to instruct the jury regarding the settlements and payments made by the UM carriers to plaintiffs. Star insists that the jury should have been informed that after the UM carriers paid $10,000,000 to the Collins plaintiffs and $1,200,000 to Jackson, the UM carriers “switched sides” to. align themselves with the plaintiffs against Mike’s Trucking and Daigle in order to pursue a judgment in excess of Star’s $1,000,000 liability limits and obtain an assignment of rights for a bad faith claim against Star. Star characterizes the settlement as a “Mary Carter” agreement that should have been revealed to the jury. Plaintiffs and the UM carriers maintain that the UM payments were actually a “collateral source.” A review of the record reveals that the jury was advised of the roles of the parties, but not about the UM payments or them | ^amounts. Star characterizes this as legal error on the part of the trial court. We disagree.

An amount paid in settlement or tender should not be admitted into evidence, just as the amount of coverage under an insurance policy or the amount of a workers’ compensation payment should not be communicated to the jury. See LSA-C.E. arts. 411, 413, and 414. While evidence of a settlement may be admissible to prove bias of a witness, the amount paid in the settlement is not admissible. Stockstill v. C.F. Industries, Inc., 94-2072 (La.App. 1 Cir.1995), 665 So.2d 802, 812-813, writ denied, 96-0149 (La.3/15/96), 669 So.2d 428; Calcagno v. Gonzales, 99-287 (La.App. 5 Cir. 10/13/99), 802 So.2d 643, 644. There is no evidence in the record to suggest that the UM payments resulted in bias on the part of any witness. The UM carriers were aligned with the plaintiffs by virtue of their cross-claims filed against Star, Mike’s Trucking, and Daigle two years before the UM payments were made.

The trial court adequately instructed the jury regarding the alignment of the parties. The jury knew that the UM carriers were cross-claimants asserting claims against Mike’s Trucking and Daigle, just as the plaintiffs were doing. The jury also knew that Star had intervened to assist Mike’s Trucking and Daigle in defending their case. The proposed stipulated language that Star wanted read to the jury involved commenting on insurance payments made to plaintiffs. It would have been inappropriate for that information to be given to the jurors. A tortfeasor may not benefit because of the plaintiffs receipt of insurance payments from sources independent of the tortfeasor’s contribution. See McCann v. ABC Ins. Co., 93-1789 (La.App. 4 Cir.1994), 640 So.2d 865, 873. Therefore, we find no error in the trial court’s ruling regarding the jury instruction.

1^Furthermore, we note that UM payments were made with a reservation of subrogation rights pursuant to a previously-filed cross-claim, and as such, cannot be characterized as a “Mary Carter” agreement. There is no element of secrecy in the settlement at issue; secrecy is the essence of a “Mary Carter” agreement. The UM settlement agreement contains an acknowledgment of the UM carriers’ sub-rogation rights which had already been disclosed in the UM carriers’ cross-claims previously filed against Mike’s Trucking and Daigle. It was clear that the UM carriers were aligned with the plaintiffs and had an interest in the plaintiffs’ success because of the UM carriers’ subrogation rights. There was no realignment of the parties. The jury understood that the UM carriers had a claim against Mike’s Trucking and Daigle, and of course, Star was aware of the UM carriers’ cross-claims.

Star’s third and fourth assignments of error are without merit.

Damage Awards (Assignment of Error Numbers 5 & 6)

Star argues that the jury’s award of $7,275,000 for general damages and $6,000,000 for future medical expenses/future support care was excessive and not supported by the evidence. However, Star was not cast in judgment or ordered to pay any amount of the damages awarded to plaintiffs and the UM carriers. The relief requested by Star, if granted, would affirmatively benefit Mike’s Trucking and Dai-gle, parties that have neither appealed nor answered the appeal. It is well settled that where a party to a proceeding has failed to appeal or answer the appeal, the appellate court is without authority to modify or revise the judgment directly in favor of that party. See LSA-C.C.P. arts, 2082 and 2133; St. Bernard Police Jury v. Murla, 00-0132 (La.6/30/00), 761 So.2d 532, 533-534; Audubon Coin & Stamp Co. v. Alford Safe & Lock Co., (on rehearing), 230 So.2d 278, 281 (La.App. 1 Cir.1969).

Star’s fifth and sixth assignments of error are without merit.

Reduction of the Judgments to Reflect Credits (Assignment of Error Number 7)

Star also argues that the judgments should reflect a credit or offset in favor of Mike’s Trucking and Daigle for the amount of the UM payments and the workers’ compensation (“WC”) benefits received by plaintiffs before trial. Plaintiffs and the UM carriers argue that the UM and WC payments are subject to the “collateral source rule” and should not be deducted from the damage award. The UM carriers also argue that because they did not forfeit, waive, or assign their subrogation rights when the payments were made to the plaintiffs and they remained in the case, actively litigating their cross-claims against Mike’s Trucking and Daigle, the tortfeasors are not entitled to a credit.

We agree with the premise that a tortfeasor is not entitled to a credit in the absence of evidence that the UM carrier waived its subrogation rights. Couvillion v. Shelter Mutual Ins. Co., 95-1186 (La. App. 1 Cir. 4/4/96), 672 So.2d 277, 283. However, yet again we are unable to further consider the issue of the credit, because to grant the relief requested by Star would require us to grant affirmative relief that would ultimately benefit two parties that have not appealed nor answered the appeal, Mike’s Trucking and Daigle. Therefore, for the . same reasons outlined above, it is inappropriate- to grant the relief requested by Star.

Star’s seventh assignment of error is without merit.

| Assignment of Rights Agreement (Assignment of Error Number 8)

Finally, Star argues that the trial court erred in refusing to require the plaintiffs and UM carriers to produce the assignment of rights agreement wherein they purportedly released Mike’s Trucking and Daigle from the damage awards in exchange for an assignment of the tortfea-sors’ rights against Star for its alleged bad faith failure to settle the claim. However, the record reveals that the alleged assignment of rights agreement occurred after (in August 2003) the three June 2003 judgments were signed. The trial court held that the assignment of rights document was not relevant to this proceeding. We agree.

It is improper for us to consider any issue related to the alleged assignment of rights agreement since it arose after the rendition of the judgments that were appealed, and is therefore, not in the record on appeal. See LSA-C.C.P. art. 2164; Alerion Bank v. Louisiana Ins. Guar. Ass’n, 98-2897 (La.App. 1 Cir. 2/18/00), 753 So.2d 369, 372. We must decide the case upon the trial record, without considering subsequent events. Morehouse Lumber & Bldg. Material Co. v. Jacob & Walker, 144 So. 190, 192 (La.App. 2 Cir.1932), affirmed, 177 La. 76, 147 So. 504 (La.1933). While the assignment of rights agreement may very well be relevant in a future bad faith action, it is irrelevant for purposes of this appeal.

Star’s eighth assignment of error is without merit.

^CONCLUSION

For the foregoing reasons, we affirm the three June 2003 judgments. Interve-nor/appellant, Star Insurance Company, is ordered to pay all costs associated with this appeal.

AFFIRMED.

DOWNING, J., concurs.

      . LWCC voluntarily dismissed its intervention in both suits after a compromise agreement was reached between the parties.

      . The compromise agreement between the Collins plaintiffs and the UM carriers specifically reserved "whatever rights, claims and interest the respective parties ... currently own[.]"

      . Jackson’s UM settlement was actually with the excess carrier, Twin City Fire Insurance Company.

      . The stipulation signed by all parties on February 24, 2003, contained language recognizing the dismissal of Star from the main demand and the cross-claims, while specifically "reserving fully all rights, including legal interest” against the remaining defendants and cross-defendants — "i.e., the insureds [Mike's Trucking and Daigle] under the Star policy.”

      . There were two separate judgments awarding money damages signed on June 16, 2003: one for the Collins case, also recognizing the UM Carriers’ cross-claims against Mike's Trucking and Daigle, and one for the Jackson case, also recognizing Twin City Fire Insurance Company’s cross-claim against Mike’s Trucking and Daigle.

      . Collins v. Mike's Trucking Company, Inc., 04-0062 (La.App. 1 Cir. 7/26/04) (unpublished).

        .Collins v. Mike's Trucking Company, Inc., 04-2210 (La.11/19/04) (unpublished).

      . The Order for Devolutive Appeal signed on July 30, 2004, grants an appeal to the interve-nor, Star. Mike’s Trucking and Daigle were not included in the order, and there is no other valid order for appeal in the record.

      . Collins v. Mike’s Trucking Company, Inc., 05-0238 c/w 05-0239 (La.App. 1 Cir. 5/3/05) (unpublished).

      . The “law of the case” doctrine generally precludes review of an issue previously addressed by an appellate court, including decisions on writ applications and motions. However, the law of the case does not absolutely bar a court from reconsidering its prior decisions; rather it is discretionary. See Louisiana Land and Exploration Co. v. Verdin, 95-2579 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, writ denied 96-2629 (La. 12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (19.97). We note that none of Star's assignments of error address its right to appeal and the plaintiffs and UM carriers did not answer the appeal. Therefore, we will not reconsider Star's right to appeal as an intervenor in the case.

      . LSA-C.C. art. 3071 provides;
      A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
      This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form. (Emphasis added.)

      . An acceptance not in accordance with an offer is deemed to be a counter-offer, and the one first making the proposal cannot be presumed to have continued in his original intention. LSA-C.C. art. 1943; Sweet v. Iberia Parish School Board, 99-483 (La.App. 3 Cir. 11/3/99), 746 So.2d 256, 259, writ denied, 99-3414 (La.2/4/00), 754 So.2d 237.

      . The parties prepared a proposed joint stipulation read to the first panel' of potential jurors during voir dire. The plaintiffs and UM carriers then withdrew the stipulation, contending the stipulation infringed on the collateral-source rule by informing the jury that plaintiffs had received insurance payments. The trial court agreed. None of the jurors on the first panel served on the jury. All other potential jurors heard the trial court’s version of the alignment of the parties, which did not reveal the UM payments or the amounts.

      . See Stockstill, 665 So.2d at 811-812, and Thibodeaux v. Ferrellgas, Inc., 97-1267 (La. App. 3 Cir.1998), 717 So.2d 668, 671-672, writs denied, 98-2321, 98-2325 (La. 11/13/98), 731 So.2d 266, for a complete analysis and collection of authorities on "Mary Carter” agreements.

      . Counsel indicated at oral argument that a bad faith action was in fact pending; however, that fact is outside the record and we are without authority to consider its effect. See Rogers v. Custom Built Garage, 01-0356 (La. App. 1 Cir. 3/28/02), 814 So.2d 693, 695.


source: Caselaw Access Project

author: McClendon, J. HUGHES, J.,

license: Public Domain

text:
    Timothy COMBETTA v. Ron ORDOYNE, Jr., Encompass Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 2004 CA 2347.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Peyton P. Murphy, Baton Rouge, Counsel for Plaintiff/Appellant, Timothy Com-betta.
    Edward F. Strauss, III, Baton Rouge, Counsel for Defendants/Appellants, Ron Ordoyne, Jr. and Continental Insurance Company.
    John T. Roethele, Wes Hataway, Den-ham Springs, Counsel for Defendant/Ap-pellee, State Farm Mutual Automobile Insurance Company.
    Before: WHIPPLE, McDONALD, McClendon, hughes, and welch, JJ.
   McClendon, J.

| ^Plaintiff, Timothy Combetta, appeals from a judgment of the trial court denying his motion for summary judgment and granting summary judgment in favor of State Farm Mutual Automobile Insurance Company (State Farm). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 27, 2001, Combetta, a guest passenger in an automobile operated by Charles Wilson and owned by Sandra Taylor, was traveling northbound on La. Hwy. 1019 in Livingston Parish, Louisiana. Another vehicle owned and operated by defendant, Ron Ordoyne, Jr-., was traveling southbound on the highway, crossed the center line into the northbound lane and struck the Wilson vehicle. Allegedly as a result of this accident, Combetta suffered several injuries, and ultimately underwent back surgery on June 25, 2002.

On February 26, 2002, Combetta filed a petition for damages naming as defendants Ordoyne and others, including State Farm, as Wilson’s uninsured/underinsured (UM/UIM) insurer. The petition recites therein that Combetta sustained back injuries, loss of wages and other general and special damages. On April 1, 2002, in response to Combetta’s petition, State Farm filed an answer and cross-claim against Ordoyne and Ordoyne’s liability insurer, Encompass Insurance Company.

The parties do not dispute that a policy of insurance, issued by State Farm to Wilson, was in full force and effect and afforded bodily injury liability coverage and UM/ UIM motorist coverage, in the amount of $10,000.00 per person and $20,000.00 per accident. It is also undisputed that following the accident of November 27, 2001, and as shown by the 1 saffidavit of Chip Magee, a State Farm claims adjuster, State Farm issued payments under the UM policy as follows:

(1) On May 8, 2002, payment in the amount of $10,000.00 to Wilson, State Farm’s named insured, for his UM/UIM motorist claim.
(2) On June 14, 2002, payment in the amount of $4,000.00 to Randy Foster, another guest passenger in the Wilson vehicle.
(3) On July 31, 2002, payment in the amount of $6,000.00 to Combetta representing the remaining limits of the UM/UIM motorist coverage afforded by the policy.

State Farm also issued a check in the amount of $5,000.00 to Combetta representing the limits of medical payments coverage afforded by the policy.

On April 1, 2004, State Farm filed a motion for summary judgment seeking a judgment of dismissal of all claims against State Farm. Therein, State Farm contended that it had paid all available coverage amounts for which it could be held liable under its policy, and that it accordingly was entitled to dismissal from the suit.

In response to State Farm’s motion for summary judgment, on April 22, 2004, Combetta filed a cross-motion for summary judgment seeking an award of $10,000.00, plus attorney’s fees, penalties, and costs pursuant to LSA-R.S. 22:658 or, alternatively, LSA-R.S. 22:1220. Combet-ta contended in his motion and affidavit that his total medical bills exceeded $53,660.17; that he had not been able to work for over twenty-nine months, since November 27, 2001; and that because the extent and nature of his injuries |4were not known and could not be known until he underwent surgery on June 25, 2002, he was in fact the last person to make a claim against State Farm pursuant to the UM coverage, tiombetta argued that State Farm’s earlier payment of Wilson’s and Foster’s claims and tender to Combetta of only the remaining policy limits was improper and insufficient, considering the nature and extent of Combetta’s injuries and medical bills.

Combetta contended that rather than distribute on a “first-come-first-serve” basis, State Farm should have distributed the funds on a pro-rata basis, and that accordingly, since his injuries were the most severe, he should have received the largest amount ($10,000.00), of the three UM/UIM motorists, as opposed to the $6,000.00 plus interest he received. Com-betta argued that State Farm’s arbitrary and capricious bad faith adjustment and settlement of the claims of Wilson, Foster, and Combetta deprived him of his statutory UM/UIM rights provided by Louisiana law and that accordingly, he was entitled to judgment in his favor for the full limits and penalties and attorney’s fees.

The cross motions for summary judgment were heard before the trial court on May 17, 2004, after which the trial court rendered judgment in favor of State Farm, dismissing it from the proceedings, and denying Combetta’s motion for summary judgment. A written judgment was signed by the trial court on June 14, 2004.

| ¡jCombetta appeals, contending that the trial court erred in granting State Farm’s motion and in denying his motion.

SUMMARY JUDGMENT

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Racca v. St. Mary Sugar Cooperative, Inc., 02-1766, p. 4 (La.App. 1 Cir. 2/23/04), 872 So.2d 1117, 1120, writ denied, 04-0698 (La.5/7/04), 872 So.2d 1083. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rambo v. Walker, 96-2538, p. 5 (La.App. 1 Cir. 11/7/97), 704 So.2d 30, 32. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The initial burden of proof is on the moving party. LSA-C.C.P. art. 966(C)(2). On issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. LSA-C.C.P. art. 966(C)(2). Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no ^genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802, p. 10 (La.App. 1 Cir. 9/24/99), 745 So.2d 666, 673.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Davis v. Specialty Diving, Inc., 98-0458, 98-0459, p. 5 (La.App. 1 Cir. 4/1/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972.

DISCUSSION

On appeal, Combetta argues that the trial court erred in summarily dismissing his claim for the policy limits, plus attorney fees, penalties, and costs pursuant to LSA-R.S. 22:658 or, alternatively, LSA-R.S. 22:1220, given State Farm’s “arbitrary, capricious, and bad faith settlement” of the UM/UIM claims herein. Specifically, Combetta contends that by settling the claims on a “first-come-first-serve” basis, while having knowledge of his equally or more serious claim, State Farm breached its duty to act reasonably and in good faith. Instead, Combetta argues, State Farm should have evaluated all claims and processed each claim on a pro-rata basis. Thus, as he sustained the most serious injuries of the three claimants, he alleged he was entitled to receive a larger portion of the policy limits and State Farm acted improperly in failing to make the appropriate adjustment of all of the claims, given the three claims, the notice to State Farm of his pending serious claim, and the limited proceeds available.

In response, State Farm argues that it was relieved of any obligation to Combetta given its duty, pursuant to LSA-R.S. 22:658 A(l), to pay the claims submitted “in May/June of 2002” by Wilson and Foster within thirty days in order to avoid being subjected to civil penalties. State Farm claims that at the time it tendered payment to Wilson and Foster, although |7Combetta had filed suit, State Farm had not been provided with any proof of loss concerning the extent of Combetta’s injuries or damages.

Louisiana Revised Statute 22:658 subjects an insurer, when it is arbitrary or capricious in failing to unconditionally tender the undisputed amount within thirty days of satisfactory proof of loss, to the mandatory imposition of penalties and attorney fees for the collection of such amount. Ibrahim v. Hawkins, 02-0850, p. 4 (La.App. 1 Cir. 2/14/03), 845 So.2d 471, 476. Louisiana Revised Statute 22:658 provides, in pertinent part as follows:

A.(1) All insurers issuing any type of contract, ... shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
B.(1) Failure to make, such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twenty-five percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, ... or in the event a partial payment or tender has been made, twenty-five percent of the difference between the amount paid or tendered and the amount found to be due. (Emphasis added.)

Louisiana Revised Statute 22:1220(B) and (C) also provide in pertinent part as follows:

B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of | ^satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. (Emphasis added.)

The conduct prohibited in LSA-R.S. 22:658(A)(1) is very similar to that prohibited in LSA-R.S. 22:1220(B)(5): the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. The primary difference is the time periods allowed for payment. Reed v. State Farm Mut. Auto. Ins. Co., 03-0107, p. 12 (La.10/21/03), 857 So.2d 1012, 1020. Whereas LSA-R.S. 22:658(A)(1) requires payment within thirty days of satisfactory proof of loss, LSA-R.S. 22:1220(B)(5) grants a longer period of sixty days for payment upon satisfactory proof of loss. We further note that LSA-R.S. art. 22:658 and LSA-R.S. 22:1220 are both penal in nature and must be strictly construed. Reed, 03-0107 at p. 13, 857 So.2d at 1020.

The phrase “arbitrary, capricious, or without probable cause” is synonymous with “vexatious.” Both describe an insurer whose willful refusal of a claim is not based on a good faith defense. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1253 (La.1993). Bad faith has been described to mean more than mere bad judgment or negligence; it implies a dishonest purpose or evil intent. Vaughn v. Franklin, 00-0291, p. 8 (La.App. 1 Cir. 3/28/01), 785 So.2d 79, 86, writ denied, 01-1551 (La.10/5/01), 798 So.2d 969. Arbitrary action is a willful and unreasoning action, without consideration for the facts and circumstances presented, or acting with unfounded motivation. Vaughn, 00-0291 at p. 8, 785 So.2d at 86. An 19insurer’s action in handling a claim is arbitrary and capricious when its willful refusal of a claim is not based on a good faith defense or is unreasonable or without probable cause. Calogero v. Safeway Ins. Co. of Louisiana, 99-1625, p. 5 (La.1/19/00), 753 So.2d 170, 173.

Moreover, under LSA-22:1220(A), an insurer has a duty of good faith and fair dealing toward its insured, including the duty to adjust claims fairly and promptly. Willard v. R & B Falcon Drilling USA Inc., 01-2334, p. 7 (La.App. 1 Cir. 12/20/02), 836 So.2d 424, 429. Louisiana Revised Statute 22:1220(A) provides, in pertinent part, as follows:

A. An 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.

This same duty to act reasonably and in good faith applies to settlement with claimants under UM coverage. See Palombo v. Broussard, 370 So.2d 216, 220 (La.App. 3 Cir.1979). In order to determine whether or not an insurer acted reasonably and in good faith in negotiating and settling a claim, one must look to the facts of the individual case. Palombo, 370 So.2d at 220. Whether a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action. Reed, 03-0107 at p. 14, 857 So.2d at 1021.

Additionally, one who claims entitlement to penalties and attorney fees has the burden of proving the insurer received satisfactory proof of loss as a predicate to a showing that the insurer was arbitrary, capricious, or linwithout probable cause. Reed, 03-0107 at p. 13, 857 So.2d at 1020. A “satisfactory proof of loss” is that which is sufficient to fully apprise the insurer of the insured’s claim. To establish a “satisfactory proof of loss,” the insured must show that the insurer received sufficient facts to fully apprise the insurer (1) that the owner or operator of the other vehicle involved in the accident was uninsured or underinsured; (2) that he was at fault; and (3) that such fault gave rise to damages. The information must also indicate the extent of those damages. Reed, 03-0107 at p. 15, 857 So.2d at 1022; Ibrahim, 02-0350 at p. 4, 845 So.2d at 476-77. When satisfactory proof of loss has been made and the insured has made a showing that the insurer will be liable for some general damages, the insurer must tender the reasonable amount that is due. This amount must be tendered unconditionally, not in settlement of the case, but to show good faith and the insurer’s compliance with its contractual duties. The amount due is that amount over which reasonable minds could not differ. McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1091-92 (La.1985); Ibrahim, 02-0350 at pp. 4-5, 845 So.2d at 477.

In the case sub judice, State Farm paid Wilson and Foster in May and June 2002, within thirty days of receipt of satisfactory proof of their loss, as required by LSA-R.S. 22:658 A(1). State Farm paid Combetta the remainder of the UM/ UIM limits when it received proof of his loss. Combetta admits that his was the last claim submitted to State Farm as he did not know the nature or extent of his loss until his surgery on June 25, 2002. Thus, this is not the situation where State Farm was. confronted with competing claims which clearly exceeded the policy limits. While State Farm was aware of the potential claim by virtue of the lawsuit, there is no evidence in the record that State Farm was apprised of the extent of any injury to Combetta when it made Intenders to Wilson and Foster. Consequently, the record fails to show that State Farm had knowledge that Combetta’s claim exceeded the remaining policy amount when it made its first two tenders. Had State Farm waited until it was presented with a satisfactory proof of loss by Combetta to make any tenders of payment to the other claimants, State Farm would have violated its duty to Wilson and Foster under LSA-R.S. 22:658 and would have further violated its affirmative duty to adjust claims fairly and promptly under LSA-R.S. 22:1220(A). We cannot equate the filing of Combetta’s suit, which was limited to general allegations of damage, to the satisfactory proof of loss required by law. To do so would allow an insurer to delay unconditional tenders and would undermine the legislative goal of timely good faith payments of amounts “due” ' to injured claimants.

Nor is a coneursus proceeding a viable solution, as it requires the insurer to deposit its entire policy limits into the registry of the court even though there may be insufficient information to confirm that all potential claims exceed policy limits. Further, coneursus proceedings would require that all claimants take legal action to receive that amount which is due to them. This would cause further litigation in our already over-crowded system of justice.

Therefore, based on our de novo review of the record, we cannot say that State Farm acted in bad faith at the time it made its tenders to Wilson and Foster, as Wilson and Foster had submitted satisfactory proofs of loss and Instate Farm did not know the extent of Combetta’s injuries. While we recognize the possibility of some inequities, this cannot equate to bad faith on the part of State Farm in light of the present statutory scheme and the facts of this case. Accordingly, we conclude that State Farm’s tender to Combetta of the remaining coverage amounts was not arbitrary, capricious, or without probable cause. Combetta did not supply State Farm with satisfactory proof of loss until after his June 25, 2002 surgery, which was subsequent to the previous unconditional tenders.

CONCLUSION

Based on the above and foregoing reasons, the June 14, 2004 judgment of the trial court granting summary judgment in favor of State Farm and dismissing plaintiffs claims with prejudice is affirmed. Costs of this appeal are assessed to Timothy Combetta.

AFFIRMED.

WHIPPLE, J., dissents for reasons assigned by J. HUGHES.

HUGHES, J., dissents for reasons assigned.

HUGHES, J.,

dissenting.

|U respectfully dissent. The majority sanctions the non-judicial award of greater damages to the less injured, and seems to stand for the proposition that it is more important to pay minor claimants quickly even to the detriment of those more seriously injured. This irrational result cannot be justified.

Timothy Combetta was injured in an automobile accident on November 27, 2001. Less than three months later, on February 26, 2002, Combetta filed suit alleging severe injuries to his nose, head, left wrist, right leg, neck, back, and loss of wages. His claims were acknowledged by State Farm in its answer and cross-claim filed on April 1, 2002.

Yet on May 8, 2002 State Farm paid Charles Wilson $10,000 and on June 14, 2002 paid Randy Foster $4,000, thus depleting the bulk of its available 10/20 UM7 UIM coverage.

While Combetta underwent surgery on June 25, 2002 and incurred medical bills exceeding $53,000, we do not know the basis for the payments to Wilson and Foster. The record before us is silent. Why 10 to Wilson and 4 to Foster? Did State Farm favor its insured over the other claimants? Perhaps there is a good faith, fair, reasonable, and rational basis for these | ¡.awards. We cannot tell. The record is bare. It is respectfully submitted that without this evidence summary judgment is inappropriate.

State Farm argues and the majority adopts the concern that State Farm would suffer penalties if it did not pay Wilson and Foster within 30 (or 60) days of receipt of satisfactory proof of loss. It is respectfully submitted that the point is missed that the law and jurisprudence in this regard are directed to refusals to pay, not multiple-claim situations. The issue here is not whether to pay or not pay a claim within the time limits, but a decision how to apportion known multiple claims. Another distinction is that while a liability insurer must base its settlement decisions on protecting its insured from an excess judgment, in a UM context the insurer owes equally to all claimants an obligation of good faith and fair dealing.

State Farm would only suffer penalties if a “failure” to pay is found to be arbitrary, capricious, or without probable cause. Surely the judicial claim of Com-betta, acknowledged and adopted by State Farm, provides all the probable cause necessary to escape penalties. While the majority states it “cannot equate” the filing of Combetta’s suit to satisfactory proof of loss, Combetta’s suit should be seen as superior to the non-judicial offerings of the minor claimants. And because State Farm did not “fail” to pay, the focus is not on whether State Farm had some sort of excuse not to pay, but whether it fulfilled its obligation of good faith and fair dealing to all claimants in the amounts it actually did pay. In other words, this is not a failure to pay / penalty case, this is a payment made, but was it in good faith and fair to all claimants case.

The majority recognizes “the possibility of some inequities,” stating this “cannot equate” to bad faith on the part of State Farm. The fact that there are inequities in this case makes it necessary for State Farm to carry its burden to show that the payments it made were in good faith and fair to all claimants.

| gjState Farm could have easily protected itself by simply invoking a concursus. Concursus proceedings have traditionally been used in uninsured motorist coverage cases where there has been a question as to whom sums owed by an insurer should be paid. See e.g. Interstate Brands Corporation v. Gallow, 2004-0916 (La.App. 1 Cir. 11/4/05), 927 So.2d 395; Roadrunner Motor Rebuilders, Inc. v. Ryan, 603 So.2d 214 (La.App. 1 Cir.1992); Townsend v. Ford Motor Company, 569 So.2d 238 (La.App. 1 Cir.1990), writ denied, 572 So.2d 72 (La.1991).

In Hartford Fire Ins. Co. v. Landreneau, 19 La.App. 280, 140 So. 52 (La.App. 1 Cir.1932) this court specifically found the use of concursus proceedings by the insurer to be reasonable and not warranting the imposition of statutory penalties. This reasoning should apply regardless of.the statute under which penalties are sought against an insurer.

Concursus proceedings in insurance claims settings are commonplace, reasonable, and not arbitrary. In comparison, claims settled on a division by the number of claimants, or on a “first-eome-first-served” basis, involve no reason and are arbitrary.

The majority demurs to a concursus because “this would cause further litigation in our already over-crowded system of justice.”

Is litigation to be feared and justice deemed a finite resource? To the contrary, it is submitted litigation is one of the greatest inventions of civilization. People who have their day in court feel better, even if they lose. They are free to settle their claims as they will. It is when arbitrary authority speaks “you lose,” without explanation or chance for input, that people develop uncivilized feelings and lose respect for our system of justice.

In this multiple-claim situation, State Farm should be given the opportunity to show that its actions were in good faith and fair to all.

      . On December 18, 2002, however, the $6,000.00 check was returned to State Farm. On January 7, 2003, a replacement check in the amount of $6,291.12 and a supplemental check in the amount of $7.56, representing the remaining limits of the UM portion of the policy, plus legal interest from the date of judicial demand through January 8, 2003, were re-issued.

      . Likewise, Combetta alleged in his third supplemental and amending petition that the extent and nature of his injuries were not known and could not be known until he underwent surgery on June 25, 2002, that the other claimants did not suffer injuries as severe as he did, that he was the last person to make a claim against State Farm, and that he should receive the largest amount of the coverage afforded under the UM policy.

      . Combetta simply asserts that the other two claimants should have received less than the value of their claims to allow more money for the payment of his third and allegedly more serious UM/UIM claim.

      . The legislature specifically used the terms "good faith” and "fair dealing” in LSA-R.S. 22:1220, but not in LSA-R.S. 22:658. In that respect, LSA-R.S. 22:1220 restates that which is already stated in the civil code: "Contracts must be performed in good faith.” LSA-C.C. art. 1983. The statutes, LSA-R.S. 22:658 and LSA-R.S. 22:1220, impose specific consequences if the insurer's actions do not conform to the obligations imposed therein. Reed, 03-0107 at p. 15, 857 So.2d at 1022.

      . We note that the record reflects that, as early as February 6, 2002, Combetta discussed with his doctor treatment options including non-operative treatment and surgical intervention, and that Combetta did not wish to continue with conservative treatment opting instead for surgery. However, there is nothing in the record to indicate that State Farm ever received this medical report.

      . It is not necessary to address whether a coneursus proceeding would fulfill an insurer's duty to make a UM tender of any undisputed amount due because, in this case, at the time the first two tenders were made, it was still not known whether the combined amounts would exceed the full policy limits.


author: TERRI F. LOVE, Judge.

text:
    Reginald NORFLEET, Rene Norfleet, Sr., Zapata Norfleet, Byron Norfleet and Mercedes N. Ducre, all Individually and on Behalf of their Deceased Mother, Betty Butler Norfleet v. LIFEGUARD TRANSPORTATION SERVICE, INC., Sharon Dean, American Casualty Company of Reading Pennsylvania, Sunbridge Healthcare Corporation d/b/a Sunbridge Care & Rehab for New Orleans, et al.
    No. 2005-CA-0501.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 2006.
    Rehearing Denied July 25, 2006.

      Richard C. Trahánt, Metairie, LA, Steven J. Rando, Law Offices of Steven J. Rando, L.L.C., Harahan, LA, Harry T. Lemmon, M. Lauren Lemmon, New Orleans, LA, for Plaintiffs/Appellants.

      Paul A. Eckert, Bastían & Associates, New Orleans, LA, and Margaret Diamond, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

It Reginald, Byron, Rene, Mercedes, and Zapata Norfleet appeal the jury findings and trial court decisions stemming from the death of their mother, Betty Norfleet. The jury allocated thirty percent fault to Easthaven Nursing Home and seventy percent fault to Lifeguard Transportation Service, Inc. Mrs. Norfleet’s children filed a motion for JNOV or, alternatively, a new trial seeking to reallocate fault and increase damages. The trial court denied this motion on the above issues and Mrs. Norfleet’s children timely appeal followed. We affirm the jury’s findings entered by the trial court with the exception of the wrongful death claim. We reverse and render to award wrongful death damages to the children and amend the attorney’s fees award to reflect the additional recovery of wrongful death damages pursuant to the contingency fee contract.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Reginald, Byron, Rene, Mercedes, and Zapata Norfleet (“Norfleets”) filed suit against Easthaven Nursing Home (“Eas-thaven”) for negligence arising from the death of their seventy-three year old mother, Betty Norfleet (“Mrs.Norfleet”), a resident of Easthaven since 1992. Mrs. Nor-fleet suffered a stroke approximately one year prior to entering Easthaven. However, she regained her ability to fully ^communicate and feed herself prior to entering Easthaven. After becoming a resident of Easthaven, a portion of Mrs. Norfleet’s left leg was amputated due to circulatory problems. The stroke and amputation rendered her wheelchair bound. Mrs. Norfleet’s primary medical problems while at Easthaven consisted of hypertension, urinary tract infections, arthritis, high cholesterol, circulatory problems, and bedsores. Throughout her residence at Easthaven, at least one of her children visited with her daily.

Due to bedsores and other skin problems, an Easthaven driver, Sandra Patterson (“Ms.Patterson”), drove Mrs. Norfleet, accompanied by one of her children, Byron, to a dermatological appointment on September 18, 2001. On the drive home from the appointment, Mrs. Norfleet’s wheelchair flipped backwards causing her to strike her head on the metal deck of Easthaven’s van (“first accident”). Byron pulled his mother upright and she began to complain of head pain. Ms. Patterson drove Mrs. Norfleet back to Easthaven.

Later that day, an ambulance transported Mrs. Norfleet to Lakeland Hospital (“Lakeland”) for an examination due to her possible head injury from the earlier fall in the van, the first accident. The hospital did not perform any x-rays, CT scans, or MRIs on Mrs. Norfleet after the fall. After approximately four hours, she was discharged with a diagnosis of a contusion and given post head trauma precautionary paperwork.

While being transported from the Lake-land emergency room to a Lifeguard Transportation Service, Inc. (“Lifeguard”) ambulance, Mrs. Norfleet fell off the stretcher and struck her head again (“second accident”). Lifeguard transported Mrs. Norfleet back into Lakeland’s emergency room for another examination. A CT scan revealed a subdural hematoma. Mrs. Norfleet underwent an emergency craniotomy performed by a neurosurgeon, Dr. Joseph Epps (“Dr.Epps”). She was in a coma, but Dr. Cabiran stated | «she “appeared” to be awakening during the two and a half months after the surgery, until her death on December 4, 2001.

The Norfleets filed suit against Eastha-ven and Lifeguard alleging negligence and seeking survival and wrongful death damages, and any other damages proven at trial. Byron allegedly sustained personal injuries from the Easthaven accident and sought medical expenses, mental and physical pain and suffering, lost wages, loss of future insurability, damages for future functional impairment, and any other damages proven at trial. The trial court later granted Byron’s motion for partial dismissal with prejudice for his personal injury claims. Lifeguard settled with the Nor-fleets prior to trial.

After a four-day jury trial, the jury returned a verdict in favor of the Norfleets and allocated fault between Easthaven and Lifeguard as thirty percent and seventy percent, respectively. The jury also awarded general and special damages for Mrs. Norfleet’s survival action as follows:

Physical pain and suffering $100,000.00
Mental and emotional distress $ 52,000.00
Medical expenses $343,000.00
Funeral expenses $ 5,000.00
TOTAL AMOUNT ' $500,000.00

The jury did not award wrongful death damages to any of the Norfleets. The trial court judge entered the jury’s verdict, reduced Easthaven’s damages in proportion to their thirty percent liability, and awarded court costs to the Norfleets.

The Norfleets filed a motion for judgment not withstanding the verdict (“JNOV”) or, alternatively, a new trial. The trial court partially granted the motion | ¿for a JNOV and increased the medical expenses to $343,792.25, and the funeral expenses to $5,700.00, to reflect the actual monetary amounts evidenced at trial. The trial court then adjusted Eastha-ven’s portion according.to its thirty percent liability. The trial court also awarded attorney’s fees, pursuant to La. R.S. 40:2010.9, with legal interest to the Nor-fleets based on their forty percent contingency fee contract with their attorneys based on the amount of recoverable compensatory damages. The trial court also awarded full court costs to the Norfleets in the amount of $8,977.66. The trial court denied the Norfleets’ alternative motion for a new trial. The Norfleets’ devolutive appeal timely followed.

ASSIGNMENTS OF ERROR

The Norfleets assert the trial court erred by entering judgment on the jury verdict by: 1) incorrectly apportioning the fault between Easthaven and Lifeguard as thirty percent and seventy percent, respectively; 2) awarding inadequate survival damages; and 3) refusing to award wrongful death damages although the jury awarded survival damages. The Norfleets assert the trial court erred by excluding five of their proposed jury charges and by not correcting the above errors through the request for a JNOV or alternatively, a new trial.

Easthaven asserts the trial court erred by entering the jury’s findings, that Eas-thaven was thirty percent at fault and by awarding excessive attorney’s fees, based on a contingency fee contract, and court costs.

STANDARD OF REVIEW

Appellate courts review factual findings of the trial court or jury using the “manifest error” or “clearly wrong” standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court developed a two-part test for reviewing |Band reversing the factfinder’s determinations. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). This bifurcated test states: 1) the reviewing court must find that the trial court’s findings have no reasonable factual basis and 2)' the record shows that the findings are wrong (manifestly erroneous). Mart, 505 So.2d at 1127. The reviewing court must view the record in its totality to determine if the factfinder was clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The appellate court must determine if the factfinder’s decision was a reasonable one. Id. This rationale stems from the fact that the trial court has “better capacity to evaluate live witnesses.” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). “[W]here two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 883. The majority of the issues presented in the case sub judice are factual questions and will be reviewed using the above standard.

Errors of law are reviewed de novo by the appellate courts. Balseiro v. Castaneda-Zuniga, 04-2038, p. 6 (La.App. 4 Cir. 8/17/05); 916 So.2d 1149, 1153.

ALLOCATION OF FAULT

Louisiana negligence claims are examined using a duty/risk analysis. Perkins v. Entergy Corp., 00-1372, p. 7 (La.3/23/01); 782 So.2d 606, 611. This analysis requires: 1) proof that defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; 2) proof that the defendant owed a duty to the plaintiff; 3) a breach of the duty; 4) proof that the defendant’s substandard conduct was the legal cause of the plaintiffs injuries; and 5) damages. Id. The plaintiff must prove every element by a preponderance of the evidence. Riley v. Salley, 03 —1601, p. 2 (La.App. 4 Cir. 4/21/04); 874 So.2d 874, 876. “Proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.” Riley, 03-1601, p. 3, 874 So.2d at 876-77. Medical testimony can prove that an accident more probably than not caused a plaintiffs injuries. Id. at p. 2, 874 So.2d at 876.

After the factfinder establishes negligence, the amount of liability of each tortfeasor relies upon the doctrine of comparative fault when litigation involves multiple tortfeasors. La. C.C. art. 2323. However, when one of the tortfeasors enters into a settlement prior to trial, the burden of proving the “liability of a settling defendant falls on the remaining defendants.” Hoerner v. Anco Insulations, Inc., 00-2333, p. 28 (La.App. 4 Cir. 1/23/02); 812 So.2d 45, 66, citing Raley v. Carter, 412 So.2d 1045, 1047 (La.1982).

The Norfleets and Easthaven assert the trial court erred by entering judgment on the jury’s findings of fault. Easthaven avers that the Norfleets failed to carry their burden of proof that Easthaven was partially the cause-in-fact for Mrs. Nor-fleet’s death. The Norfleets aver that Easthaven should be found one hundred percent liable. The jury stated on the verdict form that Easthaven caused or contributed to Mrs. Norfleet’s death. However, the jury found that the degree of fault of Easthaven was thirty percent as opposed to Lifeguard’s seventy percent.

|7Pr. Epps, the neurosurgeon who performed the craniotomy on Mrs. Norfleet, testified, via videotape, that a subdural hematoma may not manifest itself for four weeks. The first accident could have been the cause of the subdural hematoma because Mrs. Norfleet could have had lucid intervals without showing the signs of the head trauma before being discharged from Lakeland. However, he also stated that it was impossible to determine which accident more likely than not caused the sub-dural hematoma. Lastly, he testified that the subdural hematoma was a contributing factor in Mrs. Norfleet’s death.

Dr. Steck, Easthaven’s neurosurgery expert, testified pursuant to his review of Mrs. Norfleet’s Lakeland medical records. He testified that there was no way to be “one hundred percent certain” which accident caused the subdural hematoma. However, he also stated that, in his opinion, the subdural hematoma was more probably than not caused by the second accident. Yet, he later stated that the first accident could have caused a hemorrhage worsened by the second accident. Further, Dr. Steck admitted that, in his opinion, a subdural hematoma may not present itself for ten hours and that he could not rule out the first accident as the cause of the subdural hematoma.

Lakeland’s medical records also indicate that Mrs. Norfleet was discharged after the first accident with a contusion. Additionally, the records confirm the occurrence and extent of the second accident.

Our review of the record reveals that the jury’s allocation of fault between Easthaven and Lifeguard does not constitute manifest error and is not clearly wrong. First, the second accident is proven by the existence of the medical records and the documentation contained therein. Second, the jury could have relied more heavily upon the testimony or Dr. Epps because he was the operating physician. IsThird, the jury might have given Dr. Steck’s testimony less credibility because he reviewed medical records and had no direct role or contact with Mrs. Norfleet. Additionally, both experts testified that a subdural hematoma might not present itself within four hours, which was the time period after which Mrs. Norfleet was discharged from Lakeland after the first accident.

Given the conflicting evidence, we find the jury reasonably concluded that the first accident could have been the cause-in-fact of Mrs. Norfleet’s subdural hematoma. Even if this Court would have allocated fault in different proportions, we do not find the jury’s findings to be manifestly erroneous or clearly wrong after conducting a thorough review of the record. We also find that the trial court did not abuse its discretion or commit manifest error by denying a JNOV or new trial on this issue.

SURVIVAL QUANTUM

Having determined that the jury did not err by finding Easthaven liable for Mrs. Norfleet’s death, we now address the Norfleets’ survival damage issue. The right to pursue a survival action is granted by Louisiana Civil Code article 2315.1. Pain and suffering damages should be awarded if there is the “slightest amount, or scintilla, of evidence of pain and suffering on the part of the deceased.” Ambrose v. New Orleans Police Dep’t Ambulance Serv., 627 So.2d 233, 244 (La.App. 4 Cir.1993), rev’d on other grounds, 93-3099 (La.07/05/94), 639 So.2d 216. This evidence can come from the “actions of the deceased or otherwise.” Id. The time period used to calculate damages for pain and suffering is from the date of the | flinjury to death. Id. at 244. An award is inappropriate if it “shocks the conscience.” Riley v. Maison Orleans II, Inc., 01-0498, p. 11 (La.App. 4 Cir. 9/25/02); 829 So.2d 479, 487, quoting Moore v. Healthcare Elmwood, Inc., 582 So.2d 871, 879 (La.App. 5 Cir.1991).

Dr. Cabiran, Mrs. Norfleet’s treating physician at Easthaven, testified that Mrs. Norfleet was in a coma following the cra-niotomy, but was beginning to come out of it. He stated that Mrs. Norfléet opened her eyes in response to pain. The medical records also indicated that Mrs. Norfleet occasionally moaned in pain and was alert the day she died. Mercedes, Mrs. Nor-fleet’s daughter, also testified that she could see tears coming from her mother’s eyes during the time after the craniotomy. Lastly, Dr. Epps-testified that pain is not age dependent.

The Norfleets assert the trial court erred by refusing to increase the survival damages regarding the pain and suffering and emotional and mental distress damage awards based upon their motion for JNOV. Easthaven seeks to decrease the award. The jury awarded total damages of $500,000 and the trial court increased the amount to $501,492.25 to reflect the actual amount of medical and funeral- expenses. The jury awarded $152,000 for physical pain and suffering and mental and emotional distress.

'Upon thoroughly reviewing the record, we find the trial court did not err by entering a judgment on the jury’s verdict, by denying the Norfleets' motion for a JNOV, or by denying a new trial on the issue of survival damages. This Court reduced an award of $115,000 to $75,000 for a man who suffered for less than one hour before his death. Ambrose, 627 So.2d at 244-45. The Louisiana Supreme Court increased a survival damages award, from $82,000 to $122,000, for the family of a seventy-five year old after she suffered for approximately one month Imprior to her death. Jones v. St. Francis Cabrini Hospital, 94-2217 (La.4/10/95); 652 So.2d 1331, 1336. Lastly, this Court also upheld a $100,000 survival award in the death of a seventy-five year old who suffered for about twenty-two days. Jones v. Payton, 548 So.2d 1260, 1262 (La.App. 4 Cir.1989). This Court stated: “although the award of $100,000 for Mrs. Findlay’s survival action is high, it is neither outrageously excessive nor an abuse of the trial judge’s discretion.” Id.

According to the testimony and medical records, it is apparent that Mrs. Norfleet suffered some degree of pain and was not fully comatose for the two and a half months following her craniotomy. Mrs. Norfleet moaned, responded to pain by opening her eyes and moving, and had tears coming from her eyes. Thus, we do not find that the jury committed manifest error, was clearly wrong, or shocked the conscience by awarding $152,000 for two and a half months of pain. We also find that the trial court did not abuse its discretion or commit manifest error by denying a JNOV or new trial on this issue.

WRONGFUL DEATH AWARD/CONSORTIUM

A wrongful death action is intended to compensate the deceased’s loved ones for the losses they sustained as a result of the death. La. C.C. art 2315.2. “Elements” used to determine wrongful death awards can include “loss of love and affection, loss of services, and loss of support.” Turner v. Lyons, 03-0186, pp. 11-12 (La.App. 4 Cir. 1/28/04); 867 So.2d 13, 21. “Much discretion must be left to the judge or jury” in determining damages. La. C.C. art. 2324.1. Therefore, determining the amount or “quantum” of damages is a fact determination for the jury and is “entitled to great deference on review.” Trunk v. Med. Ctr. of La. at In New Orleans, 04-0181, p. 9 (La.10/19/04); 885 So.2d 534, 539, citing Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00); 774 So.2d 70, 74. However, when the jury commits an error of law and fails to award damages when the plaintiffs have proven their injuries, the appellate court must make an initial damage award. Boulmay v. Dubois, 593 So.2d 769, 773-74 (La.App. 4 Cir.1992). Therefore, we must examine testimony from the trial to discern whether the jury committed legal error by declining to award the Norfleets wrongful death or loss of consortium damages.

All five of Mrs. Norfleet’s children testified at trial as to their close relationship with their mother. • First, Byron Norfleet (“Byron”), the oldest child at fifty-six years old, testified about the trip to his mother’s dermatologist and how he struggled to free her after her wheelchair fell over in the van. He also stated that he had worked since he was sixteen to help support his family after his father left. He also helped take care of his mother after her stroke. Byron stated that the decision to put Mrs. Norfleet in a nursing home was the hardest decision he and his siblings ever had to make. He also stated that he visited his mother at Easthaven every Monday and Tuesday and some other mornings. He stated that she retained her mental capacity after her stroke. Lastly, he testified as to how they would watch television together and about his mother’s kindness.

Second, Mercedes N. Ducre (“Mercedes”), Mrs. Norfleet’s only daughter, testified that her mother was her best friend. Mercedes visited her mother at Easthaven every day. ' Mercedes also tried to keep her mother’s mind nimble after she suffered a stroke in 1992. She would quiz her on past events and discuss current events. For example, Mrs. Norfleet was very troubled by the events of September 11, 2001 (“911”), and discussed them at length prior to her accidents on | ^September 18, 2001. Mercedes also stated that her mother was able to feed herself after the stroke, but needed help getting to and from her wheelchair. Mrs. Norfleet also participated in many activities while at Easthaven, including bingo, going to church, and birthday parties. Mercedes testified that she and her siblings would bring cake and presents to Easthaven for Mother’s Day celebrations. They would also take Mrs. Norfleet out of Easthaven for holidays like Thanksgiving and Christmas. Overall, Mercedes stated that she felt that she had been deprived of a future with her mother and best friend.

Third, Reginald Norfleet (“Reginald”), Mrs. Norfleet’s second oldest son, testified that his mother taught him to be self-sufficient and reiterated that either he or one of his siblings visited their mother at Easthaven everyday for ten years. He also stated that his mother’s mental capacity was great, especially her long term memory, after the stroke because they would get her to detail their family history. He further testified that he lived with his mother until he was twenty-nine and ran errands for her. Lastly, he stated that he and his siblings have no peace of mind since his mother died because she stays on their minds all the time.

Fourth, Rene Norfleet (“Rene”), the second youngest son, testified that after he divorced his wife, he moved back into his mother’s house with two of his children. Mrs. Norfleet then participated in raising his children and assumed an important role in their everyday lives. Like, Mercedes, he said that his mother was one of his best friends. Following Mrs. Nor-fleet’s stroke, Rene took care of her for fourteen months until the Norfleets placed her in Easthaven. During that time, he took care of all of her financial burdens, totaling between $50,000 and $60,000, and did not ask for contributions from his other siblings. After entering Easthaven, Rene brought his mother seafood every Friday, while Mercedes would cook l13Sunday dinner with dessert prepared by Rene’s wife. The last time he visited with his mother at Easthaven, they discussed 911 and she advised him to stop investing in the stock market because of the fluctuations following the tragedy.

Fifth, Zapata Norfleet (“Zapata”), the youngest son, testified that he lived with his mother his entire life until she began to live at Easthaven. While Rene supported Mrs. Norfleet after her stroke, Zapata also lived with them to help feed, bathe, and otherwise take care of her. While she was at Easthaven, he would visit her two or three times a week. Lastly, he stated that he missed the sound of his mother’s voice the most.

Dr. Cabiran testified that documents from the nursing home employees corroborated that at least one of the Norfleets visited- their mother everyday during her ten-ye'ar residence at Easthaven.

After a thorough review of the record, we find that the jury committed legal error by declining to award wrongful death damages to the Norfleets because they proved a loss due to the death of Mrs. Norfleet. Therefore, we must make an initial wrongful death damage award. Applicable jurisprudence provides that the range in wrongful death awards to major children in a close family for the death of an elderly parent ranges from $12,500 to $150,000, depending upon the evidence in the record. Thomas v. Sisters of Charity of the Incarnate Word, 38,170 (La.App. 2 Cir. 3/19/04); 870 So.2d 390; Turner v. Lyons, 03-0186 (La.App. 4 Cir. 1/28/04); 867 So.2d 13; Brodtmann v. Duke, 96-0257 (La.App. 4 Cir. 2/11/98); 708 So.2d 447; Watkins v. Bethley, 27554 and 27555 (La.App. 2 Cir. 11/01/95); 662 So.2d 839; Vedros v. Pub. Grain Elevator of N.O., Inc., 94-0659 (La.App. 4 Cir. 4/13/95); 654 So.2d 775.

| uBrodtmann awarded the largest amount of $150,000 because the trial court found that the family was very close and relied upon their sixty-year old father as a “great source of emotional support.” 96-0257, p. 22, 708 So.2d at 460. However, this Court stated that the award was on the higher end of the spectrum, but not an abuse of discretion. Id. In Turner, this Court reduced $150,000 awards to $50,000 for the major children that testified at the trial and reduced the award to $20,000 for the major children who did not testify. 03-0186, p. 19, 867 So.2d at 25-26. This Court reasoned that the extent of familial closeness in Brodtmann did not exist and that the impact of the sixty-year old mother’s death on the non-testifying children was only generally established. Id. at p. 19, 867 So.2d at 25-26. This Court upheld a $12,500 award to major children of a sixty-seven year old decedent. Vedros, 94-0659, 654 So.2d at 781. The daughter in Vedros, testified that they relied upon their father for advice and friendship. Id. 654 So.2d at 780. Both children spoke with their father everyday and the son stated that his father was his best friend. Id. However, this Court stated that they were not “unusually dependent” on their father. Id. This Court stated that the award was less than what it would have awarded. Id.

The Louisiana Second Circuit Court of Appeal upheld a $25,000 award for the death of an eighty-two year old father based upon his age and health. Thomas, 38,170, p. 15, 870 So.2d at 399-400. However, the court stated that the award was on the lower end of the “possible damages” spectrum. Id. The Second Circuit also upheld an initial wrongful death damages award of $50,000 to major children in the death of their eighty-one year old father. Watkins, 27554 and 27555, p. 7, 662 So.2d at 843. The trial court found the family to be very close and that the 11sfather instilled a “strong sense of family, the value of hard work and a respect for education” in all of his eleven children. Id. at p. 6, 662 So.2d at 843.

Considering the extreme closeness of the Norfleet family, shown by the visits to Easthaven everyday for ten years to visit with their lucid mother, the fact that their father left when Byron was sixteen, and their reliance on their mother’s advice and companionship, we award each of Mrs. Norfleet’s children $75,000 for her wrongful death. This amount is reduced by Lifeguard’s seventy percent liability; therefore, the award to each child is $22,500.

JURY CHARGES

The Norfleets argue that the trial court committed legal error by excluding jury charges forty-three through forty-five and forty-seven, and by excluding the ease of association doctrine. A legal error occurs when the “trial court applies incorrect principles of law and such errors are prejudicial.” Lam v. State Farm Mutual Auto. Ins. Co., 03-0180, p. 4 (La.App. 4 Cir. 4/01/05); 901 So.2d 559, 564, writ granted, 05-1139 (La.6/24/05), 904 So.2d 749. The error becomes prejudicial when it “materially” affects “the outcome” and deprives “a party of substantial rights.” Id.

The proposed jury charges stated:

Plaintiffs’ Proposed Special Jury Instruction
The rule that multiple defendants can be held liable for damages sustained in separate accidents when those damages cannot be separated among the accidents may have logical application in those cases where the accidents are basically simultaneous. Jarreau v. Hirschey, 93-1402 (La.App. 1 Cir. 12/07/94), 650 So.2d 1189, 1194
Plaintiffs’ Proposed Special Jury Instruction Jplp
Where two or more causes combine to produce a single result, incapable of any logical division, each may be a substantial factor in bringing about the loss, and if so each h ¿may be charged with all of it ... Entire liability rests upon the obvious fact that each has contributed to the single result, and that no rational division can be made. Bergeron v. Thomas, 314 So.2d 418, 425-426 (La.App. 4th Cir. 1975) citing Prosser on Torts (2nd Ed.), p. 226
Plaintiffs’ Proposed Special Jury Instruction 15
The “single indivisible injury” rule states, “Where two or more persons acting independently are guilty of consecutive acts of negligence closely related in point of time, and cause damage to another under circumstances where the damage is indivisible, i.e., it is not reasonably possible to make a division of the damage caused by the separate acts of negligence, and negligent actors are jointly and severally liable.” Bergeron v. Thomas, 314 So.2d 418, 428 (La.App. 4th Cir.1975) citing Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321
Plaintiffs’ Proposed Special Jury Instruction 47
Where two or more causes combine to produce a single result, incapable of any logical distinction, each may be a substantial factor in bringing about the loss, and it so, each must be charged with all of it. Probst v. Wroten, 433 So.2d 734 (La.App. 5th Cir.1982) citing Prosser on Torts (2nd Ed.), p. 250

Lastly, the Norfleets sought to have the ease of association doctrine included as a jury charge.

While the proposed jury charges are accurate quotes, we find their emphasis is taken out of context and misplaced. First, Proposed Jury Instruction Forty-three applies to “accidents that are basically simultaneous.” Jarreau v. Hirschey, 93-1402 (La.App. 1 Cir. 12/07/94), 650 So.2d 1189, 1194. However, Jarreau involved two accidents approximately three weeks apart. Id. 650 So.2d at 1191. Jarreau further states, “[sjolidary liability between tortfea-sors does not arise where each of the tortfeasors 'commits an entirely separate, negligent act.” Id. at 1194. |17Like the case sub judice, Jarreau involved physicians who could not identify which injuries came from which accident. Id. at 1194-95. The court did not apply the solidary liability rule. Id. at 1195.

Second, Proposed Jury Instructions Forty-four and Forty-five involve the “single indivisible injury rule.” Bergeron v. Thomas, 314 So.2d 418, 425-28 (La.App. 1 Cir.1975). Bergeron involved two virtually instantaneous ear crashes. Id. at 419-20. However, the court determined that the accidents were distinct enough not to warrant the application of the rule. Bergeron, 314 So.2d at 426. Also, the crux of Proposed Jury Instruction Forty-five comes from a dissent in the case. Id. at 428.

Third, the rule in Proposed Jury Instruction Forty-seven required one defendant to accept full liability for the plaintiffs injuries because the defense did not present evidence that could attribute certain injuries to one of the two accidents. Probst v. Wroten, 433 So.2d 734, 743 (La.App. 5 Cir.1982).

Last, ease of association can apply when the original tortfeasor, in this case, Easthaven, becomes liable for additional injuries suffered by the plaintiff while being treated for the original injuries. Hernandez v. Chalmette Med. Ctr., 01-0074, 03-1169, and 03-1456, p. 12 (La.App. 4 Cir. 2/04/04); 869 So.2d 141, 149. However, the risk of negligence does not include separate accidents, even if the second accident aggravates a preexisting condition. Franz v. Ledoux, 03-2080, pp. 5-6 (La.App. 4 Cir. 2/04/04); 869 So.2d 137, 140.

“A jury instruction must reflect the applicable law but not confuse the jury.” Lam, 03-0180, p. 14, 901 So.2d at 570. We find that the trial court’s refusal to |1sinclude the jury instructions did not mislead the jury. The proposed instructions do not apply in situations where the two accidents occur close in proximity even if testifying physicians cannot allocate each injury to each accident. Also, in Bergeron, the courts refused to apply the rules to two simultaneous accidents. The jury found Easthaven liable in spite of the excluded proposed jury charges. While this Court may have allocated fault differently, the legal decision to exclude jury instructions which included inapplicable law was not an error. We also find that the trial court did not abuse its discretion or commit manifest error by denying a JNOV or new trial on this issue.

ATTORNEY’S FEES AND COURT COSTS

Easthaven avers the trial court erred by granting the Norfleets attorney’s fees based on their contingency fee contract with their attorneys and all of the court costs. Easthaven asserts that they should not be required to pay the full amount because the Norfleets settled with Lifeguard prior to trial. Thus, Easthaven asserts that all of the attorney’s fees and court costs were not incurred in the pursuit of a judgment against Easthaven. At most, Easthaven asserts they should be responsible for thirty percent of the fees because that equals the amount of fault the jury apportioned to Easthaven. Eastha-ven also argues that it should not have to pay court costs because the Norfleets failed to prevail on every issue at trial.

Louisiana law provides that courts may “render judgment for costs, or any part thereof, against any party, as it may consider equitable.” La. C.C.P. art.1920. Also, the Nursing Home Residents Bill of Rights provides that “any plaintiff who prevails in such an action [pursuant to La. R.S. 40:2010.8] shall be entitled to recover reasonable attorney fees, and costs of the action.” La. R.S. 40:2010.9. A court may consider a contingency fee contract when awarding attorney’s fees, but|inthe court is not bound by the contract’s terms. Rivet v. State, Dep’t of Transp. & Dev., 01-0961, p. 6 (La.11/28/01); 800 So.2d 777, 782. The Norfleets aver that courts uphold contingency fee contracts if warranted. Brumfield v. Coastal Cargo Co., 99-2756 (La.App. 4 Cir. 6/28/00); 768 So.2d 634; Short v. Plantation Mgmt. Corp., 99-0899 (La.App. 1 Cir. 12/27/00); 781 So.2d 46.

The Louisiana Supreme Court has established a number of factors used to determine the reasonableness of attorney’s fees. Corbello v. Iowa Prod., 02-0826, p. 35 (La.2/25/03); 850 So.2d 686, 710. These factors include: 1) the ultimate result obtained; 2) the responsibility incurred; 3) the importance of the litigation; 4) the amount of money involved; 5) the extent and character of the work performed; 6) the legal knowledge, attainment, and skill of the attorneys; 7) the number of appearances made; 8) the intricacies of the facts involved; 9) the diligence and skill of counsel; and 10) the court’s own knowledge. State, Dep’t of Transp. and Dev. v. Williamson, 597 So.2d 439, 442 (La.1992).

After consideration of the Williamson factors, we find the trial court’s award of attorney’s fees did not constitute an abuse of discretion. First, the Nor-fleets prevailed at trial. Second, the responsibility in preparing for and conducting a four-day trial with numerous experts and family witnesses is extensive. Third, the Norfleets’ counsel had to review and interpret the large amount of Lakeland medical records contained in the record. Fourth, the type of work involved required the Norfleets’ counsel to become familiar with intricate medical terminology and procedures. Fifth, it also required the Norfleets’ counsel to prepare for and take numerous depositions. Sixth, the amount of appearances made by the- Norfleets’ counsel was great when considering the number of depositions and hearings conducted prior to trial. Seventh, the fifth factor shows |2nthe intricacy of the medical problems at issue in the trial. Eighth, there is no doubt in the record that the attorneys representing the Norfleets were adequate. Lastly, the trial court’s knowledge of the intricate issues of this trial and the length of the trial warrant consideration in awarding attorney’s fees.

Easthaven asserts that it should not be liable for all of the attorney’s fees because the jury found it thirty percent liable. However, the trial court considered the fact that the Norfleets’ attorneys prepared for trial against Easthaven and Lifeguard and that the jury split liability between the two defendants. After weighing all of the Williamson factors and Eastha-ven’s liability concerns, we cannot say that the trial court committed manifest error or abused its discretion.

The Norfleets’ contingency fee contract contains a provision that increases the amount of attorney’s fees if an appeal is filed. However, in the case sub judice, the Norfleets filed the appeal. “Therefore, an increase in attorney’s fees would not be appropriate.” Buras v. Schultz, 02-0628, p. 5 (La.App. 4 Cir. 9/18/02); 828 So.2d 649, 652.

When awarding court costs, Louisiana courts are “vested with great discretion.” Greene v. Greene, 94-79 (La. App. 3 Cir. 10/05/94); 643 So.2d 891, 894. “The trial court may assess costs in any equitable manner and its assessment will not be reversed on appeal in the absence of an abuse of discretion.” Adams v. Canal Indem. Co., 99-1190, pp. 12-13 (La. App. 3 Cir. 5/10/00); 760 So.2d 1197, 1205.

The trial court awarded court costs to the Norfleets in the amount of $8,977.66 because they prevailed at trial. As this is the customary method of awarding court costs, we do not find that the trial court abused its discretion.

121We find the trial court did not abuse its discretion or commit manifest error when deciding to award full attorney’s fees and court costs to the Norfleets. However, we now amend the attorney’s fee award and increase it to reflect the additional recovery of wrongful death damages, pursuant to the contingency fee contract agreement upheld by the trial court.

DECREE

We affirm the jury’s findings except in regards to wrongful death and the award of attorney’s fees. We reverse and render to award wrongful death damages in the amount of $22,500 to each of the Norfleets and amend the attorney’s fees award to reflect the additional recovery award of wrongful death damages pursuant to the Norfleets’ contingency fee agreement.

AMENDED AND AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

      . La. C.C. Art. 2323: Comparative fault reads, in pertinent part:
      A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a non-party, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not kno.wn or reasonably ascertainable.. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
      B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

      . La. C.C. art. 2315.1: Survival action reads, in pertinent part:
      A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

      . La. C.C. art 2315.2: Wrongful death action reads, in pertinent part:
      If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

      . Ease of association is part of the duty analysis in Louisiana’s duty/risk analysis. Alaimo v. Racetrack at Evangeline Downs, Inc., 04-1230, p. 4 (La.App. 3 Cir. 2/02/05); 893 So.2d 190, 193, citing Todd v. State Through Dep’t of Soc. Sens., 96-3090 (La.9/09/97); 699 So.2d 35, 39. The doctrine requires an “ease of association between that risk and the legal duty.” Todd v. State Through Dep't of Soc. Sens., 96-3090 (La.9/09/97); 699 So.2d 35, 39. The ease of association doctrine may apply to cases where the original tortfeasor becomes liable for injuries sustained by the plaintiff while being treated for the original injury. Hernandez v. Chalmette Med. Ctr., 01-0074, 03-1169, and 03-1456, p. 12 (La.App. 4 Cir. 2/04/04); 869 So.2d 141, 149.

      . The "single indivisible injury rule” involves damages and injuries that are indivisible. Maraist v. Alton Ochsner Med. Found., 00-0404, p. 7 (La.App. 1 Cir. 4/04/01); 808 So.2d 566, 569-70. For example, Maraist involved one proven injury. Id. at p. 7, 808 So.2d at 570. When the factual situation of a case provides for the trier of fact with a way to "distinguish between the causation of the injuries sustained,” the instruction is not required. Bergeron v. Thomas, 314 So.2d 418, 426 (La.App. 1 Cir.1975).