author: WILLIAMS, J.

text:
    Carolyn PATRICK, Individually and on Behalf of Ronnie Joe Patrick, Plaintiff-Appellant v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, City of Monroe, Entergy Louisiana, Inc., Entergy Corporation and George Donald Emfinger, Defendant-Appellee. Progressive Insurance Company, Defendant-Appellee Intervenor.
    No. 42,197-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.
    Rehearing Denied June 14, 2007.

      Curtis D. Street, for Appellant.
    Nanci S. Summersgill, for Appellee, City of Monroe.
    Michael L. Dubos, Monroe, for Appellee, Entergy Corporation and Entergy Louisiana, Inc.
    Walter D. White, Shreveport, for Appel-lee Progressive Insurance Company.
    Before WILLIAMS, PEATROSS and MOORE, JJ.
   WILLIAMS, J.

| ¶ Plaintiff, Carolyn Patrick, individually and as curatrix of her husband, Ronnie Joe Patrick, seeks reversal of the trial court’s ruling granting summary judgment in favor of defendants, Entergy Corporation and the City of Monroe, Louisiana. For the reasons that follow, the judgment of the trial court is hereby affirmed.

FACTS

On June 18, 2001, Ronnie Joe Patrick was riding his Honda motor scooter eastbound on Kilpatrick Boulevard in Monroe, Louisiana. At the same time, George Em-finger was driving his Isuzu pickup truck westbound on Kilpatrick Blvd. Emfinger was looking for an office building as he drove, and he decided to make a left turn onto Plaza Boulevard, a street that intersects perpendicularly with Kilpatrick Blvd. When Emfinger turned across the eastbound lane of Kilpatrick Blvd., Patrick’s scooter hit the passenger side of Emfinger’s truck. Patrick was seriously injured in the crash; his injuries were so severe that they later led to his interdiction.

Kilpatrick Blvd. is a surface street with a speed limit of 25 miles per hour and is divided down the center by a series of curbed oval-shaped islands that are covered in grass. The spaces between the islands are paved in the same manner as the roadway and allow motorists to turn onto the various streets that intersect with Kilpatrick Blvd. A dividing island is located immediately to the west of Kilpatrick Blvd.’s intersection with Plaza Blvd. An electrical box owned and placed by Enter-gy Corporation is located on the east end of the island. A crepe myrtle tree is on the same island to the west of the electrical box.

_JjFollowing the accident, plaintiff filed the instant lawsuit, naming as defendants Emfinger, his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), Entergy Louisiana, Inc., Entergy Corporation (referred to collectively as “Entergy”) and the City of Monroe, Louisiana (“the City”). Plaintiff alleged, inter alia, Emfinger was negligent in the operation of his truck; Entergy’s electrical box blocked the view of drivers in Emfinger’s position; the City should have cut back the trees and vegetation that allegedly blocked the view of drivers on Kilpatrick Blvd.; and the City should not have allowed En-tergy to place its electrical box on the island.

Each of the defendants answered the petition and generally denied liability. Entergy and the City both urged that the plaintiffs damages were caused solely by Emfinger’s negligence. Discovery commenced; at his deposition, Emfinger placed a portion of the blame for the accident on the electrical box and the vegetation. Emfinger said that he stopped his truck in the intersection (“If I had went any further, I’d have been in the lane,”), did not see anyone, and proceeded on. He explained:

There’s a large metal box right at the corner of the boulevard where it separates — where it turns. And there’s a lot of Bradford pear trees down through there and ... you can see a little bit, and I — when I looked there, there was nothing, and then I proceeded to turn.

Emfinger and State Farm settled with the Patricks on February 19, 2003, leaving only the City and Entergy as defendants.

On August 30, 2006, Entergy filed a motion for summary judgment. |3On September 26, 2006, the City filed a motion for summary judgment relying on Entergy’s motion and further urging that it was not negligent in maintaining the trees.

Defendants relied on several pieces of evidence developed during discovery. First, defendants cited the deposition of the Monroe police officer who investigated the accident, Corporal Paul Harper, who concluded that Emfinger was distracted at the time of the accident because Emfinger told Cpl. Harper that he was looking for a street sign at the time he made the turn. Cpl. Harper stated:

I’m not going to sit here and tell you — if you’re wanting my answer because — this wreck occurred because of that vegetation and that box, I’m going to say ‘no’ ... because it didn’t. Because when you’re down that street that — up to where you actually make your turn and where the crash occurred, he could have seen that motorcycle if he were looking instead of looking for the street sign.
If you’re going to turn at the intersection at this point, you can’t see down that street. But if you get up there were you’re going to turn, to make your turn, instead of looking for a street sign and not paying attention to oncoming traffic or opposing traffic, you should be able to see down that street. There is no problem.

Cpl. Harper did not request that the City change the intersection because of a visual obstruction.

Defendants also relied in part on statements made by plaintiffs expert, Dr. Louis Bedell, a retired associate professor of physics at University of Louisiana at Monroe. In his deposition, Dr. Bedell testified | ¿that drivers traveling in opposite directions on Kilpatrick Blvd. cannot see each other because of the obscuring objects “and it’s only when the truck begins to turn that they can see each other.” Dr. Bedell stated that a motorist should have been aware of what he called the “vision hazard” and should have slowed down and stopped at the intersection. Dr. Bedell further stated that had Emfinger stopped in the intersection to look at the road to the west of his position, he could have seen 200 feet down the road and neither the box nor the trees would have interfered with his ability to see the oncoming motor scooter.

Defendants further cited the deposition of plaintiffs other expert, John Bates, a civil engineer whose experience includes work as a highway engineer and highway and street designer. Bates testified that the objects in the median created a visual obstruction, that the obstruction was in violation of the applicable highway safety standards, and explained:

If there had been no obstruction in that center median, there is absolutely no reason why a left-turning vehicle would have to stop except to yield to oncoming traffic and to be able to see that oncoming traffic in sufficient distance in order to react properly.

Bates stated that he believed the visual obstruction and Emfinger’s failure to yield were the proximate causes of the accident. However, Bates also said that if a motorist in Emfinger’s position stopped his vehicle two feet to the north of the island’s curb, the motorist would be able to see 220 feet to the west down Kilpatrick Blvd. In his deposition, Emfinger marked the spot where he stopped on a photograph of the intersection, which roughly appeared to be two feet to the north of the island’s curb. Bates stated that if | sEmfinger had stopped at the location he indicated, he should have been able to see Patrick approaching on his motor scooter. Nevertheless, Bates explained:

If the obstructions had not been there for the two hundred twenty feet — and by the way, that’s the entire length of that short block right there (indicating), that short median.... So if there had not been any obstructions there, then before he ever got to the point shown in Emfinger #2, [Mr. Emfinger] would have been able to have either slowed ... in order to allow clearance of the Patrick vehicle or to come to a stop anywhere along that path of his turn in that intersection if that became necessary. But because there was an obstruction that cannot be seen until he gets up to the point or very close to the point that he showed in Emfinger # 2, then a vehicle would have to stop at that location in order to see that he had adequate clearance.

Bates considered Emfinger’s testimony that he stopped in the intersection “a violation of the physical evidence” because Em-finger should have been able to see Patrick approaching if Emfinger stopped where Emfinger said he stopped. Nevertheless, Bates maintained that a motorist in Em-finger’s position had no obligation to stop but for the visual obstruction created by the objects in the median.

The City also supplied the affidavit of Richard Jones, supervisor of the Administrative Services Bureau. Jones stated that there had only been two accidents at the intersection in question in the previous five years. One of those accidents was the instant accident. In the other accident, a motorist backing onto Kilpatrick Blvd. struck another vehicle in the lane the motorist was backing into; the accident did not involve a left-turn at the island.

In response to the motions for summary judgment, plaintiff filed an opposition and also relied on the depositions of Emfinger, Harper, Bedell and Bates. Further, plaintiff supplied the court with affidavits from three |fiother persons — Dale Kelley, Jane Jackson and Debbie Skeen. Kelley is a photographer who took a variety of photos of the site for reference purpose; the photos were attached to his affidavit. Jackson and Skeen work at offices located adjacent to Kilpatrick Blvd., and both of their affidavits state that the electrical box and trees on the Plaza intersection island block the view of a left-turning motorist on Kil-patrick Blvd. and that they consider the condition hazardous.

Entergy filed a reply to the opposition, including a section from the deposition of another engineer, Kirk Gallien. Gallien testified nothing in the applicable standards prevented the placement of the trees or electrical box in the median.

On October 26, 2006, the trial court granted summary judgment in favor of the City and Entergy. The court concluded that the evidence showed that neither the electrical box nor the trees prevented a motorist exercising ordinary care and reasonable prudence from seeing a clear view of the intersection and approaching traffic. From that judgment, plaintiff now appeals.

DISCUSSION

The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact 17and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. 966(B). The burden of proof remains with the movant; however, if the movant will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the movant may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the non-moving party to present evidence demonstrating that genuine issues of material fact remain. LSA-C.C.P. art. 966(C)(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. Once the burden of production has shifted, the opponent must produce factual support to avert the summary judgment. If the opponent fails to produce such evidence, summary judgment is mandated. LSA-C.C.P. art. 966(C)(2); Racine, supra. Appellate review of the grant or denial of summary judgment is de novo. Ross v. Conoco, Inc., 2002-0299 (La.10/15/02), 828 So.2d 546.

Unquestionably, Emfinger violated his duty as a left-turning motorist to exercise due care. As this court stated in Thomas v. Petrolane Gas Serv. Ltd. Part., 588 So.2d 711 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1201 (La.1992):

A vehicle driver intending to turn left within an intersection shall yield to oncoming traffic that is “within the intersection or so close thereto as to constitute an immediate hazard.” Further, the left turn has been held to be the most dangerous maneuver a motorist may execute, and great caution should always be taken. Obviously, such a turn should be attempted only when it is ascertained that it can be safely completed.
Individual drivers additionally have a duty to operate, control, and use their automobiles reasonably, and to maintain a proper lookout for hazards which might pose an unreasonable risk of harm.

\RId. at 717 (internal citations omitted).

In the instant case, Emfinger should have seen the oncoming motor scooter and yielded the right of way to Patrick. However, at issue here is whether either or both Entergy and the City of Monroe share in the fault for the accident. LSA-C.C. art. 2323.

In Fowler v. Roberts, 556 So.2d 1 (La.1989), the supreme court explained:

The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).

Both the City and Entergy had duties in this case. The city has a duty to maintain its streets and rights of way in a reasonably safe condition for use by the public. Lutz v. City of Shreveport, 25,801 (La.App.2d Cir.5/4/94), 637 So.2d 636, writ denied, 94-1487 (La.9/23/94), 642 So.2d 1294. Overgrown foliage that obstructs the right of way may constitute a defect in the road. Briggs v. Hartford Ins. Co., 532 So.2d 1154 (La.1988). See also LSA-R.S. 48:35(0 relative to the duty of the City to maintain the road in a manner that is not unreasonably dangerous for a reasonably prudent driver, and LSA-R.S. 9:2800 relative to proof of notice prior to imposition of strict liability upon public entities. Likewise, Entergy had the duty not to place its equipment in a manner that would pose an unreasonable |flrisk of harm to motorists.

Photographs, expert testimony and other evidence revealed that both the electrical box and the vegetation on the Kil-patrick Blvd. island partially blocked westbound motorists from seeing eastbound motorists approaching the Plaza intersection. Only when left-turning westbound motorists slowed to a stop in the intersection could they obtain a view of the eastbound lane sufficient to permit the safe completion of a left turn onto Plaza. There is no traffic control device at the intersection; the left-turning motorist must observe the condition for himself and take the appropriate action, ie., stop in the intersection and look for oncoming traffic, before proceeding. This is, at least, an atypical condition at an intersection, and at least one of the plaintiffs experts was of the opinion that the intersection was unreasonably dangerous because of the blocked views. Plaintiffs proof on this element was sufficient to overcome summary judgment.

Cause-in-fact is generally a “but for” inquiry, which tests whether the accident would or would not have occurred but for the defendant’s substandard conduct. Fowler, supra. In Bonin v. Ferrellgas, Inc., 2003-3024 (La.7/2/04), 877 So.2d 89, the supreme court analyzed a case where more than one party’s conduct was responsible for the harm (a fire). The court stated:

However, where there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident. In this case, more than one party’s conduct allegedly caused the fire, ie., Ferrellgas, Empiregas, and Landos. In considering the substantial factor test, this Court has stated that cause-in-fact clearly exists when the plaintiffs harm would not have occurred absent the specific defendant’s conduct. This Court [inhas considered “whether each of the multiple causes played so important a role in producing the result that responsibility should be imposed upon each item of conduct, even if it cannot be said definitively that the harm would not have occurred ‘but for’ each individual cause.” Also considered is “whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm.” Whether the defendant’s conduct was a substantial factor in bringing about the harm, and thus, a cause-in-fact of the injuries, is a factual question to be determined by the fact finder.

Id. at 94 (internal citations omitted).

With regard to the cause-in-fact element, the defendants clearly satisfied their initial burden of showing an absence of factual support for the plaintiffs case. No witness testified that the vegetation or electrical box prevented Emfinger from seeing Patrick at the point in the intersection where Emfinger said that he stopped. Plaintiffs’ own experts opined that Emfinger’s view down the eastbound lane of Kil-patrick Blvd. was at least 200 feet, long enough at the low speeds involved for Em-finger to make his turn safely.

The question then becomes whether the plaintiff has evidence demonstrating that genuine issues of material fact remain on this point. Emfinger’s undisputed testimony is that he stopped in the intersection to look for oncoming traffic — and saw none — before entering the eastbound lane. Emfinger’s action — stopping and looking for oncoming traffic — nullifies any harm that was caused by the blockage of the view by the trees or the electrical box. Emfinger recognized the hazard posed by the intersection and took the appropriate action by stopping and looking. At that point, the hazard posed by the items blocking his view had passed ^because the electrical box and trees did not prevent him from seeing Patrick. Emfinger simply failed to see what he should have seen and negligently entered the intersection.

Although the cause-in-fact inquiry is a factual determination best made by the fact-finder, summary judgment may be appropriate when, as here, there is no evidence to show that the defendants’ negligence caused the plaintiffs’ injuries. See, e.g., Williamson v. Monroe Medical Clinic, 37,463 (La.App.2d Cir.8/20/03), 852 So.2d 1192. There is no evidence to support a finding that the condition created by the electrical box and trees was a substantial factor in bringing about this accident; credibility determinations are not at issue here.

CONCLUSION

The evidence in this case shows that the sole cause of Patrick’s crash was Emfinger’s failure to see Patrick, despite his unrestricted opportunity to do so. Accordingly, the judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, PEATROSS, DREW, and MOORE, JJ.

Rehearing denied.

      . The tree on this island appears to be a crepe myrtle.

      . Only a portion of Dr. Bedell’s deposition is included in the record on appeal; the deposition is partly included as an exhibit and partly incorporated into the record itself.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Nickey L. MARSH, Plaintiff-Appellee v. USAGENCIES CASUALTY INSURANCE COMPANY, Defendant-Appellant.
    No. 42,176-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.

      Stone, Pigman, Walther, Wittmann, by Wayne J. Lee, Lesli D. Harris, New Orleans, Hudson, Potts & Bernstein, by Mark J. Neal, Monroe, for Appellant.
    Neblett, Beard & Arsenault by Richard J. Arsenault, John R. Whaley, Alexandria, Travis M. Holley & Associates, by Travis M. Holley, Bastrop, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   LOLLEY, J.

| tUSAgencies Casualty Insurance Company (“USAgencies”) appeals a judgment from the Fourth Judicial District Court, Parish of Morehouse, State of Louisiana, which granted the motion for class certification filed by Nicky L. Marsh (“Marsh”). For the following reasons we affirm the trial court’s judgment.

Facts

This lawsuit originated as an individual claim for property damage and personal injuries by Marsh following an automobile accident involving his 2001 Mazda Tribute. Marsh’s vehicle was insured by USAgen-cies. Marsh had purchased his vehicle eight months before the accident, and it cost him approximately $22,000.00.

Following the accident, a USAgencies appraiser inspected Marsh’s vehicle and declared it a total loss. Using the National Automobile Dealers Association Guidebook, the appraiser determined the vehicle’s base average value. Then, after inspecting and photographing the vehicle, the appraiser made several value adjustments based on the vehicle’s condition— Marsh’s vehicle had high mileage (20,000 miles) and was “very dirty inside.” Based on all of these criteria, the vehicle’s pre-accident actual cash value (“ACV”) was determined to be $16,875.00. Marsh was contacted by an adjuster and given this figure, and although he initially agreed to the ACV, he later refused to settle the claim for the amount offered. In reaching the ACV, USAgencies downwardly adjusted Marsh’s total $75.00 for “detail/prep.” According to Marsh, this amount, sometimes taken by USAgencies in the adjustment process, represented the cost to clean a totaled car to get it ready pto sell on a used car lot; however, Marsh argues that his vehicle was never detailed because it was totaled and never made it to the used car lot. USAgencies maintains that this deduction is made because the condition of a vehicle impacts the ultimate final value of that vehicle. Marsh filed suit against USAgencies seeking compensatory and punitive damages. He later amended his petition, adding the class action claims. After a two-day class certification hearing, the trial court entered its judgment for class certification, designating Marsh as class representative and certifying the class to be:

All insureds of USAgencies whose claims are contained within that “pool of claims” previously identified in this proceeding (approximately 9,000 more or less) from which the “random sample” was drawn, as well as any additional first-party total loss property damage claims occurring since that time until the present, in which a detail or prep work fee, charge, assessment or factor was used, assessed or in any way operated in or was applied to the process of adjustment of such claim by or on behalf of USAgencies with that insured to reduce the insured’s recovery.

USAgencies’ appeal of the judgment ensued.

Discussion

Louisiana law requires that in order to meet class certification requirements, a plaintiff must meet all of the requirements of La. C.C.P. art. 591(A) and fall within one of the subsections of art. 591(B). Howard v. Willis-Knighton Medical Center, 40,634 (La.App.2d Cir.03/08/06), 924 So.2d 1245, writs denied, 2006-0850 (La.06/14/06), 929 So.2d 1268 and 2006-1064 (La.06/14/06), 929 So.2d 1271; Edmonds v. City of Shreveport, 39,893 (La. App.2d Cir.08/31/05), 910 So.2d 1005; Defraites v. State 3Farm Mut. Auto. Ins. Co., 2003-1081 (La.App. 5th Cir.01/27/04), 864 So.2d 254, writ denied, 2004-0460 (La.03/12/04), 869 So.2d 832. Louisiana C.C.P. art. 591 states:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution- of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or |4(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.
C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the class action. Howard, supra. A trial court has wide discretion in deciding whether to certify a class and the decision will not be overturned absent a finding of manifest error or abuse of | ^discretion. Id. However, any errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action, because a class certification order is subject to modification, if later developments during the course of the trial so require. Id., citing McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984).

Marsh’s substantive claims

Initially, USAgencies argues that the trial court erred in refusing to consider the substantive elements of Marsh’s cause of action and the individualized proof necessary to establish liability. USAgencies relies on this court’s pronouncement in Howard, supra that:

Determination of the suitability of a claim for class action certification demands an understanding of the factual and legal issues that will arise from the plaintiffs cause(s) of action. “Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” (Citations omitted).

Whereas we accept that statement as true, at the same time we emphasize that the only issue to be considered by the trial court in ruling on class certification, and by this court on review, is whether the case at bar is one in which the procedural device of a class action is appropriate. Obviously, when making such a determination, it is necessary to consider the particular facts and circumstances of the case before us. See Rapp v. Iberia Parish School Bd., 2005-833 (La.App. 3d Cir.03/01/06), 926 So.2d 30, writ denied, 2006-1331 (La.09/22/06), 937 So.2d 386. However, that analysis of the underlying facts and circumstances is only made in connection with lfihow those underlying facts and circumstances pertain to the inquiry under La. C.C.P. art. 591. In determining the propriety of a class action, the trial court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood that they ultimately will prevail on the merits. Robichaux v. State ex rel. Dept. of Health and Hospitals, 2006-0437 (La.App. 1st Cir.12/28/06), 952 So.2d 27, citing, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) and Miller v. Mackey Intern., Inc., 452 F.2d 424 (5th Cir.1971).

Here, the trial court noted in its reasons for certifying the class that:

The Court must also note what is not at issue in this ruling. The merits of the respective claims and the potential defenses thereto are not presented at this time for the Court to pass upon. In that regard, the Court notes that the defense presentation of evidence during the certification hearing seemed inordinately directed towards the merits of the case. The jurisdictional pronouncements could not be more clear that the respective merits of the claims or of the potential defenses are not at issue in considering whether or not to certify or maintain a proceeding as a class action, except only insofar as such evidence may bear upon on or .more the factors to be considered by the Court under Article 591. (Emphasis original).

We agree. In determining class certification, the trial court was not called to ascertain the viability of Marsh’s cause of action against USAgencies, but whether, considering the claims made by Marsh, the cause of action would endure scrutiny in certifying the class under the requirements of La. C.C.P. art. 591.

Marsh claims that USAgencies acted arbitrarily and capriciously when it reduced his (and other insureds’) recovery for a “detail/prep” charge on his (and their) total loss vehicle(s). He also claims that this 17“detail/prep” charge violated La. R.S. 22:1220(B)(5) and La. R.S. 22:658, in effect, because USAgencies charged the insured for work that was never performed or intended to be performed. The trial court noted that “USAgencies’ focus on the process of determining the actual cash value of the vehicle is misplaced and overlooks the question of the propriety of the operation of the detail or prep adjustment factor in that process.... ” We agree with the trial court’s assessment of Marsh’s claim against USAgencies — i.e., his claims do not focus on the process USAgencies implemented in valuing the Marsh’s totaled vehicle. See Defraites, supra. Rather, his claims center on the propriety of USAgencies’ actions in assessing a “detail/prep” fee in assigning the value. As it pertained to this very specific action, the trial court ultimately would not be called upon to make a case-by-case evaluation of how a claim was adjusted, but rather, it would only have to ascertain whether it was proper for USAgencies to charge a “detail/prep” fee for a car that USAgencies determined to be a total loss. We conclude that the trial court did properly consider the factual and legal issues presented by Marsh’s claims as they pertained to class certification. Perhaps the level of legal scrutiny sought by USAgen-cies would be more appropriately addressed in an exception of no cause of action or a motion for summary judgment. Simply, the trial court and now this court on review, are not called at this juncture to evaluate the merits or the viability of Marsh’s claims. What is only at issue is whether procedurally this claim warrants class status. We find no error by the trial court in this regard.

| ¡USAgencies further argues that class certification in this case was in error, because Marsh seeks penalties under La. R.S. 22:658 and 22:1220, which would entail specific case inquiries. However, we consider the reliance placed by USAgencies on the case law cited both misplaced and overreaching. Obviously, we recognize the line of jurisprudence noting that the determination of whether an insurer acted in bad faith turns on the facts and circumstances of each case. See e.g., Smith v. Audubon Ins. Co., 1995-2057 (La.09/05/96), 679 So.2d 372. What the jurisprudence dictates, however, is what might be “bad faith” in one particular case (here, the Marsh case) is not necessarily going to be “bad faith” in another case dealing with a relationship between a different insured and insurer — all of the facts and circumstances have to be considered. In this case, the alleged arbitrary and capricious act was USAgencies’ across-the-board policy assessing a “detail/prep” fee for many total loss vehicles — a charge for services that were allegedly not performed. Such an act conceivably could be considered “bad faith,” which is a determination for another day. That said, an ultimate finding of bad faith in this case would not be a standard that would be applicable necessarily to another insurer in another case. Thus, the determination to be made under La. R.S. 22:658 and 22:1220 in this case would not be applied to another insurer without a careful consideration of the individual facts and circumstances. Again, this assignment of error by USAgencies is without merit.

| sArticle 591 Requirements

As to the requirements for class certification, USAgencies finds fault with the trial court’s determination under both subsections (A) and (B) of La. C.C.P. art. 591.

Article 591 (A)

As stated, La. C.C.P. art. 591(A) presents five threshold requirements; however, USAgencies only disputes the trial court’s findings as to three of them: commonality, adequacy, and typicality.

Commonality

Article 591(A)(2) requires for class certification that there be questions of law or facts common to the class. Some courts have stated that the test of commonality is not a demanding one and requires only that there be at least one issue, the resolution of which will affect all or a significant number of the putative class members. Howard, supra, citing Duke v. Texaco, Inc., 1999-2002 (La.App. 3d Cir.02/07/01), 779 So.2d 1070, writ denied, 2001-0637 (La.04/27/01), 791 So.2d 637; Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir.1999), cert. denied, 528 U.S. 1159, 120 S.Ct. 1169, 145 L.Ed.2d 1078 (2000). A common question is defined as one which when answered as to one class member is answered to all of them. Howard, supra.

Here, the trial court considered the arguments presented by the opposing sides. USAgencies maintained that a case-by-case analysis would have to be made in order to determine the adjustment process associated with each class member. On the other hand, Marsh submitted, and the trial | incourt accepted, that several common questions existed for all members of the class. We agree.

Clearly, considering the claims made by Marsh, there are two questions that are common to the class. First, was it appropriate for USAgencies to reduce its insureds’ recovery on a total loss vehicle for a “detail/prep” fee when the totaled vehicle is never detailed or cleaned? Second, does this practice by USAgencies constitute arbitrary and capricious behavior in the adjustment process, violating La. R.S. 22:1220(B)(5) and/or La. R.S. 22:658? US-Agencies muddies the waters by arguing that each individual adjustment would have to be analyzed. We do not see that to be the case. Marsh is not disputing the method of vehicle valuation in general, but only questions one allegedly common factor present for the valuation of totaled vehicles for all class members — i.e., were they assessed a “detail/prep” fee for their totaled vehicle that was never actually detailed or prepped? Answering such a question would not entail extreme individual or case-by-case inquiry. The class members clearly have commonality; therefore, we find no error by the trial court as to this element.

Adequacy and Typicality

The two elements of adequacy and typicality under La. C.C.P. art. 591(A) are often addressed together. Adequacy is a principal requirement for certification where the class representatives must be adequate for the class. The following factors may be relevant to the adequacy of representation inquiry:

ln(l) The representative must be able to demonstrate that he or she suffered an actual-vis-á-vis hypothetical-injury;
(2) The representative should possess first-hand knowledge or experience of the conduct at issue in the litigation;
(3) The representative’s stake in the litigation, that is, the substantiality of his or her interest in winning the lawsuit, should be significant enough, relative to that of other class members, to ensure that representative’s conscientious participation in the litigation; and
(4) The representative should not have interests seriously antagonistic to or in direct conflict with those of other class members, whether because the representative is subject to unique defenses or additional claims against him or her, or where the representative is seeking special or additional relief.

Howard, supra at 1265, citing Kent A. Lambert, Certification of Class Actions in Louisiana, 58 La. L.Rev. 1085, 1117 (1998).

As to typicality, the representatives’ claims must be a cross section of, or typical of, the claims of the other class members. Watters v. Department of Social Services, 2005-0324 (LaApp. 4th Cir.04/19/06), 929 So.2d 267, writs denied, 2006-1598, 2006-1601 (La.09/29/06), 937 So.2d 870. Typicality for class action certification is satisfied if the claims of the class representatives arise out of the same event, practice, or course of conduct that gives rise to the claims of other class members and those claims are based on the same legal theory. Watters, supra, citing Andrews v. Trans Union Corp., 2004-2158, (LaApp. 4th Cir.08/17/05), 917 So.2d 463, 469.

Here, Marsh’s claims only pertain to one aspect of the valuations made by USAgencies — the “detail/prep” fee — and one type of vehicle — total loss vehicles. He is only interested in USAgencies’ practice or conduct in valuing total loss vehicles, specifically whether those insureds were | ^assessed a “detail/prep” fee. There need not be any regard as to the model of vehicle being valued or the adjuster who performed the valuation, as argued by USAgencies. Marsh’s claim seems to be typical of the class, no matter the model of the vehicle, the age of the vehicle, the adjuster, or the ultimate valuation. Nor does Marsh appear to have any individualized claims that would make him antagonistic to the class — he certainly appears to be an adequate representative of the class. Therefore, as to these elements, the trial court was not in error.

Article 591(B)(8)

USAgencies also argues that the trial court erred because Marsh failed to meet the commonality or predominance requirements under sub-section (B)(3) of the article. Specifically, it insists that this action involves too many variables — a “myriad of issues” — to allow for a finding of commonality or predominance. We disagree.

Under La. C.C.P. art. 591(B)(3), the “predominance requirement,” the trial court must determine whether questions of law or fact common to the members of the class predominate over any questions affecting only individual members. While subsection (A)(2) of that article requires that there be questions of law or fact common to the class, which we have already determined there to be, subsection (B)(3) further requires that these common questions predominate over any questions affecting only individual members. As this court previously noted in Howard, supra at 1264:

In determining whether common issues predominate, courts generally engage in a three-step analysis: (1) first, the court must identify the substantive elements of the cause of action; (2) the proof necessary to meet the plaintiffs burden of proof |1sas to those elements must be considered; and (3) the alternative procedural mechanisms for adjudicating the case must be evaluated in terms of promoting judicial economy. The fact that each class member seeks separate damages, or that each claim arose out of separate transactions with the defendant is not necessarily dispositive. The question is whether common issues of law and fact in each class member’s claim predominate. “A single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions.” (Citations omitted).

We have already discussed the few specific questions that are common to the class members. Despite USAgencies’ doggedly advancing its argument to the contrary, we fail to see how an in-depth individual assessment of each valuation for each total loss vehicle would be necessary if the primary question is “did USAgencies properly charge the insured a “detail/prep” fee for his total loss vehicle?” Although the dollar amount for the “detail/prep” fee assessed to each insured might have differed, the general answer to this question will not differ for each individual insured. Furthermore, we believe that class action is a superior method of adjudicating this particular issue. The trial court noted that there could be as many as 9000 class members. Without a class action, many of the class members would have claims too small to justify individual litigation. Clearly, the common issue in this case predominates over any individual claims that might exist, and the trial court did not err in this regard.

Compromise of Claims

USAgencies also submits that the trial court erred in certifying the class, because many of the putative class members’ claims have been previously compromised in signed settlement agreements. It specifically 114argues that a compromise agreement between an insured and its insurer has the force and effect of a final judgment and is res judicata, which precludes litigation of issues the insured should have brought, but failed to assert.

It is well settled that a valid compromise can form the basis of a plea of res judica-ta, because a compromise has the legal efficacy of a judgment. Brown v. Drillers, 1993-1019 (La.01/14/94), 630 So.2d 741. In this case, the record reflects that USAgen-cies has asserted the exception of res judi-cata; however, that particular issue has never been specifically addressed by the trial court. As we have noted herein, the issue of class certification is a procedural mechanism which hinges on a determination under La. C.C.P. art. 591. To address the res judicata raised by USAgencies would entail a detailed factual determination and a deeper inquiry into the merits of the claim. The determination of an exception of res judicata lies with the trial court, and we refuse to usurp the province of the trial court in this regard.

Expert Witness

Finally, USAgencies argues that the trial court erred in considering and applying the testimony of Marsh’s expert, Tim Ryles, Ph.D., a former Commissioner of Insurance in Georgia. Credibility determinations are for the trier of fact, even as to the evaluation of expert witness testimony. Green v. K-Mart Corp., 2003-2495 (La.05/25/04), 874 So.2d 838. A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part. Id. The effect and weight to be given to expert testimony rests |1Bwithin the broad discretion of the trier of fact. Williams v. State Farm Mut. Auto. Ins. Co., 36,439 (La.App.2d Cir.10/23/02), 830 So.2d 379.

Here, the trial court made only a fleeting reference to Dr. Ryles’ deposition testimony in its reasons for judgment (in a footnote, no less), not even mentioning him by name. It is not readily apparent that the trial court even relied on Dr. Ryles’ opinion in reaching a conclusion on the issue discussed. In fact, Dr. Ryles’ opinion as noted by the trial court goes to the merits of Marsh’s claims against USAgen-cies, on which the trial court was not making any determination. US Agencies overstates the significance of the trial court’s reference to Marsh’s expert, which was clearly in its discretion anyway as the trier of fact. This assignment of error has no merit.

Conclusion

For the foregoing reasons, the judgment of the trial court granting class certification is affirmed. Costs of this appeal are assessed to USAgeneies Casualty Insurance Company.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    Mildred K. JOHNSON, et al., Plaintiffs-Appellees v. Charles Joseph LEDOUX, Defendant-Appellant.
    No. 42,090-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.
    Rehearing Denied June 14, 2007.

      Nelson, Zentner, Sartor, & Snellings, by: Allison M. Jarrell, David H. Nelson, Monroe, for Appellant.
    Hudson, Potts, & Bernstein, by Mark J. Neal, Johnny R. Huckabay, II, Monroe, for Appellees.
    Before BROWN, CARAWAY, and DREW, JJ.
   BROWN, Chief Judge.

|! Lessor, Charles Ledoux, and his insurer, Employers Mutual Casualty Insurance Company, have appealed from the trial court’s judgment awarding damages to lessee, Johnson & Johnson Sales, Inc. The trial court specifically found that the roof of the leased premises collapsed during a “low” wind storm because “Defendant’s contractual mandated maintenance was not performed — thus, the contract of lease was breached.” For the following reasons, we reverse.

Facts and Procedural History

Johnson & Johnson Sales, Inc., was a window and door glass manufacturing and sales corporation. It was operated by Robert Johnson. In 1990 when Johnson’s health began to fail, the company suspended operations and leased a building from Ledoux to store its inventory and equipment. In 1991, Robert Johnson died. For the next 12 years, the Johnson children continued the lease. On March 12, 2003, the roof on the leased premises collapsed, damaging the contents. On March 1, 2004, the Johnson children and unopened succession filed this action against Ledoux; however, the petition was amended in May of 2005 to name the corporation as plaintiff and to add Ledoux’s insurer, Employers Mutual, as a defendant. The original plaintiffs were dismissed, leaving Johnson & Johnson Sales, Inc., as sole plaintiff.

After the trial court’s denial of an exception of prescription, the matter was tried, and the court rendered judgment in favor of Johnson & Johnson Sales, Inc., awarding $207,086.08 in damages, plus interest from |2the date of judicial demand until paid, together with all costs of the proceedings. It is from this judgment that defendants have appealed.

Discussion

Prescription

Defendants argue that the original petition alleged a tort action with a one-year prescriptive period, and the corporate plaintiff did not join the current suit via an amendment to the petition until May 16, 2005, more than two years after the roof collapsed.

The applicable prescriptive period is determined by the character of the action disclosed in the pleadings. Starns v. Emmons, 538 So.2d 275 (La.1989). The nature of the basic underlying action determines the appropriate prescriptive period. Fishbein v. LSU Health Sciences Center, 04-2482 (La.04/12/05), 898 So.2d 1260.

La. C.C.P. art. 1153 provides that when an action asserted in an amended petition arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

The court in Giroir v. South Louisiana Medical Center, 475 So.2d 1040, 1044 (La.1985), summarized the law as to late-added plaintiffs as follows:

An amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction or occurrence set forth in the original pleading; (2) the defendant knew or should have known of the existence and involvement of the new plaintiff; (3) the new and old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the |3defendant will not be prejudiced in preparing and conducting his defense.

The trial court found that the pleadings characterized an action in contract. The initial petition did allege an action in tort; however, it also pled elements of a breach of contract which has a 10-year prescriptive limitation. Even so, the amendment adding the corporate plaintiff involved the same building collapse, property damage, defendant, and lease agreement. The original petition alleged the existence of the lease. Ledoux drafted the lease with the corporation as the lessee. Ledoux was aware of his potential liability when the roof collapsed. There was no prejudice to Ledoux or his insurer.

The Lease Agreement

A lease agreement, like other contracts, is the law between the parties. Corbello v. Iowa Production, et al., 02-0826 (La.02/25/03), 850 So.2d 686. The meaning and intent of the parties to a written instrument should be determined within the four corners of the document. Shoreline Gas, Inc. v. Grace Resources, Inc., 34,517 (La.App.2d Cir.04/04/01), 786 So.2d 137. When the words of a contract are clear and explicit, and lead to no absurd consequences, no further interpretation need be made into the parties’ intent. La. C.C. art.2046. Any doubt in the language of a contract that cannot be otherwise resolved must be interpreted against the party that furnished its text. La. C.C. art.2056; Louisiana Gaming Corp. v. Kayell Enterprises, Inc., 35,297 (La.App.2d Cir.12/05/01), 804 So.2d 736.

l/The lease as drafted by Ledoux contained the following provisions:

[L]essee does release and relieve lessor from liability, which might accrue to lessee by reasons of damages occasioned to the property and any products of lessee located or stored in or upon the premises.
Lessee further binds and obligates itself to hold harmless and to indemnify and to defend lessor from any and all claims whatsoever occasioned by reasons of the condition of the building or lessee’s use thereof.
Lessor shall not be liable for any damage to person or property sustained by the lessee or any other persons, and any such liability is assumed by lessee.
[L]essor hereby waives any and all rights of recovery against Lessee, and all persons for whose actions Lessee is or may be responsible, for any loss by insured peril occurring to the building or other improvements situated on the premises, and hereby agrees not to assign to any insurer any right or cause of action for any insured damage which may occur during the term of the lease or any extension hereof; and Lessee does hereby waive any and all rights of recovery against Lessor, and all persons for whose action Lessor is or may be responsible, for loss by insured peril occurring to any furniture, fixtures or other leasehold improvements of Lessee or to the merchandise or stock goods of Lessee, situated on or in the leased premises, and hereby agrees not to assign to any insurer any right or cause of action for any insured damage to said property which may occur during the term of this lease or any extension hereof.
Lessor warrants that the lease premises are in good condition
Lessor agrees to maintain only the roof and outside walls of the premises. Lessee agrees to maintain the heating and air-conditioning systems, plumbing, upkeep of interior walls, floors, etc., and all plate glass windows and doors. Lessor shall not be held responsible for any damage to Lessee’s furniture, fixtures or merchandise caused by fire, ñood, broken pipes, roof leaks, etc. (Emphasis added).

These provisions contain strong language that supports defendants’ argument. This was an “as is” month-to-month lease for a nominal $275 monthly rent. It is clear that the lessor did not intend to be held liable for [ ^damages to lessee’s property. Plaintiffs property was stored at the premises for more than 12 years before the roof collapsed. Considering that the lease relationship extended for many years and the building served its purpose, the warranty of “good condition” was met. The issue presented in this case, as noted by the trial court, has to do with maintenance. The lessor was only responsible to maintain the roof and outside walls. However, that same provision provided that lessor shall not be responsible for damages to lessee’s property caused by roof leaks, etc. The “etc.” would include damages due to the maintenance, or lack thereof, of the roof or outside walls.

Whether a contract is ambiguous or not is a question of law. L.S. Huckabay, M.D. Memorial Hosp., Inc. v. KPMG Peat Marwick, LLP, 36,775 (La. App.2d Cir.04/9/03), 843 So.2d 1186, writs denied, 03-1334 (La.09/19/03), 853 So.2d 640, 03-1400 (La.09/19/03), 853 So.2d 646. In the ease of ambiguity in a contract, where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but instead is based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. Lawrence v. Terral Seed, Inc., 35,019 (La.App. 2d Cir.09/26/01), 796 So.2d 115, writ denied, 01-3134 (La.02/01/02), 808 So.2d 341; Spohrer v. Spohrer, 610 So.2d 849 (La. App. 1st Cir.1992).

|nThe trial court did not need to rely on factual findings to interpret the lease agreement, and thus we must review whether the trial court was legally correct. The language, “Lessor agrees to maintain only the roof and outside walls of the premises” is clear and plain. Defendants argue that the last line of that paragraph, “Lessor shall not be held responsible for any damage to Lessee’s furniture, fixtures or merchandise caused by fire, flood, broken pipes, roof leaks, etc” relieves defendants of liability in this case.

In the first line, the lessor accepted the obligation to maintain the roof; however, in the same paragraph lessee waives any liability of the lessor for damages to the contents due to the failure to provide the maintenance.

Thus, we find that the trial court made an incorrect legal interpretation of the lease agreement when it found that defendants were liable for damages caused by the roof collapse due to a breach of that lease provision.

Conclusion

For the reasons set forth above, the trial court’s judgment is REVERSED and IT IS ORDERED, ADJUDGED, and DECREED that there be judgment in favor of defendants dismissing plaintiffs action at plaintiffs cost.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, PEATROSS, and DREW, JJ.

Rehearing denied.


author: PICKETT, Judge. COOKS, J.,

text:
    Tina KRIEG v. BAKER OIL TOOLS.
    No. 07-418.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 2007.

      Bret Christopher Beyer, Attorney at Law, Lafayette, LA, for Defendant/Appel-lee, Baker Oil Tools.
    Harry Karl Burdette, The Glenn Ar-mentor Law Corp., Lafayette, LA, for Plaintiff/Appellant, Tina Krieg.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY H. EZELL, Judges.
   PICKETT, Judge.

_JjThis court issued a rule for the appellant, Tina Krieg, to show cause, by brief only, why the appeal in this case should not be dismissed as premature. Although the appellant responded to this court’s order with a letter, we dismiss the appeal.

The appellant filed a claim with the Office of Workers’ Compensation seeking payment by the appellee, Baker Oil Tools, for medical treatment, indemnity benefits, and penalties and attorney fees. The ap-pellee filed an exception of prescription against the appellant’s claim for indemnity benefits. The trial court held a contradictory hearing on the exception. On January 10, 2007, the trial court signed a judgment granting the exception. The judgment reads, in pertinent part, “the defendant/employer’s Peremptory Exception of Prescription as to Indemnity Benefits is hereby GRANTED, reserving the rights of TINA KRIEG to claim medical benefits only.” Emphasis supplied.

The appellant filed a motion for appeal from this ruling, and the trial court granted the order of appeal. Upon the lodging of the record in this case, this court, on its own motion, issued a rule for the appellant to show cause, by brief only, why the appeal should not be dismissed as premature.

The appellant responded to this court’s order by filing a letter with this court. In the letter, the appellant explains that the instant appeal has been taken in accordance with La.Code Civ.P. art. 1915(B)(1). The appellant further argues that the dismissal of this appeal on this procedural ground would prejudice the appellant because evidence on the issue of indemnity benefits will not be able to be introduced at the trial on the merits of this case in the workers’ compensation court.

bThe rule to show cause issued by this court in this matter cited the appellant to Rhodes v. Lewis, 2001-1989 (La.5/14/02), 817 So.2d 64, and Evergreen Presbyterian Minist. v. Wallace, 2005-1343 (La.App. 3 Cir. 4/5/06), 926 So.2d 759. In Rhodes, 817 So.2d 64, two of three defendants were dismissed from the action. Despite the fact that dismissal of that appeal resulted in trial being conducted against only one defendant, which risked that a new trial would have to be held in the event that a later appeal resulted in a finding that the dismissal of the first two defendants was incorrect, the supreme court held that La. Code Civ.P. art. 1915(A)(1) and (5) were inapplicable to workers’ compensation suits.

The appellant’s letter to this court does not provide any basis for varying from the established jurisprudence in this area of the law. While this court recognizes that the appellant claims that she is seeking this appeal pursuant to La.Code Civ.P. art. 1915(B) and that Rhodes pertained only to La.Code Civ.P. art. 1915(A)(1) and (5), we find the logic of Rhodes dictates that Article 1915(B) should also be inapplicable to this case.

In Evergreen Presbyterian Minist., 926 So.2d 759, this court ordered the dismissal of appeals filed by both sides. The rulings at issue in that appeal were that the claimant was entitled to supplemental earnings benefits, but that the claimant was not temporarily and totally disabled nor totally and permanently disabled, as well as other rulings deciding other issues in the case. This court stated therein:

The law is clear, and we are bound to follow the supreme court’s dictates, that a piecemeal appeal is not permissible in a workers’ compensation case. The judgment of the Office of Workers’ Compensation clearly establishes that issue of penalties and attorney fees is yet to be decided by it. As the second circuit noted in Gajeske v. Integrated Electrical Services, Inc., 37,777 (La.App. 2 Cir. 10/29/03), 3859 So.2d 896, in footnote four (citing Rhodes, 817 So.2d 64), a piecemeal appeal is not permissible when there are still issues involving penalties and attorney fees yet to determined. Until all issues have been decided in this case, this appeal is premature.

Evergreen Presbyterian Minist., 926 So.2d at 763. Accordingly, we hereby dismiss the instant appeal at appellant’s cost.

APPEAL DISMISSED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting and assigning written reasons.

hi would not order the dismissal of this appeal. I find that the two cases cited by the majority are distinguishable from the instant case. In Rhodes v. Lewis, 2001-1989 (La.5/14/02), 817 So.2d 64, and Evergreen Presbyterian Minist. v. Wallace, 2005-1343 (La.App. 3 Cir. 4/5/06), 926 So.2d 759, the procedural posture of those cases was such that the matters presented on the appeals involved issues arising out of the cause of action that was yet to be litigated in the worker’s compensation court. However, in the instant case, the trial court has ordered the dismissal of the worker’s claim for indemnity benefits. This claim is wholly independent of the claim for medical benefits, the only claim remaining in the worker’s compensation court. These two claims are even subject to different prescriptive provisions. La. R.S. 23:1209. Therefore, I would find that this appeal is not subject to dismissal and that this court’s rule should be recalled for good cause shown. At the very least, and in the interest of justice, I submit that because the trial court’s ruling, if erroneous, may cause the applicant irreparable harm, this court should accept this appeal as a properly filed application for supervisory writs.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Alan R. CASE, Appellant.
    No. 42,095-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 2007.

      Lavalle Bernard Salomon, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, John Michael Ruddick, Assistant District Attorney, for Appellee.

      Before STEWART, PEATROSS and DREW, JJ.
   DREW, J.

11 Alan Case pled guilty to armed robbery and was sentenced to 40 years at hard labor, plus an additional five years at hard labor for using a firearm during the crime. He appeals his sentence. We affirm.

On January 30, 2003, around 2:00 a.m., Case, armed with a stolen rifle, entered an Exxon station in Monroe. He demanded money from the cashier, and fled with cash amounting to more than $500. The entire crime was recorded on surveillance video.

Case was 20 years old and unemployed at the time of the crime. He told police he committed the robbery to obtain money to pay his rent. He had a juvenile record in Mississippi, with an unsuccessful term of probation, but he did graduate from high school. Case served in the United States Army, but was apparently discharged when his juvenile record was discovered.

Case had previously been arrested, as an adult, for two separate incidents involving either threatened or actual arson at Louisiana churches:

• On September 8, 1999, he was charged with one count of extortion for communicating a threat to burn down the Bosco Baptist Church unless he was given money; and
• On April 24, 2000, Case was charged with simple arson of a religious building after he set a fire at the Union Baptist Missionary Church in Bosco, Louisiana.

Case pled guilty to simple arson and extortion in June 2001 and was sentenced to serve five years at hard labor on each count, concurrently, with all but one year suspended, and with four years of supervised probation. The defendant served his prison time at the Beauregard Boot Camp. | ^Because of this armed robbery conviction, his probation on the previous charges has been revoked.

In May 2003, the state also charged Case with other crimes: two counts of simple arson and two counts of simple burglary. These charges were unrelated to this robbery.

In exchange for certain concessions from the state, Case pled guilty to the armed robbery with a firearm charge. Although there was no agreement on a sentencing cap, the state did pledge that if Case pled guilty it would:

(1) not charge him as an habitual offender,

(2) not prosecute him on any other charges arising from this offense, and

(3) drop the burglary and arson charges.

At sentencing on June 29, 2006, the trial court reviewed the foregoing facts and considered them in light of La. C. Cr. P. art. 894.1, finding that a sentence of imprisonment was appropriate under these sections:

• (A)(1) (undue risk of commission of another crime if sentence was suspended),
• (A)(2) (need for correctional treatment), and
• (A)(3) (lesser sentence would deprecate the seriousness of the crime).
The court then applied these sections of La. C. Cr. P. art. 894.1:
• (B)(1) (deliberate cruelty to the victim) based upon the defendant’s act of pointing the rifle at the clerk,
• (B)(3) (receipt of anything of value for the commission of the offense),
• (B)(5) (creation of risk of death or great bodily harm to more than one person),
• (B)(10) (use of a dangerous weapon),
Is* (B)(19) (use of a firearm in an offense with an element of the use of force), and
• (B)(21) (other relevant aggravating circumstances) including the defendant’s status as a probationer, prior criminal record and the previously pending burglary/arson charges.

The court found no mitigating factors under La. C. Cr. P. art. 894.1(B). Specifically, the court found that the defendant had been given probation in the past but failed to complete those terms successfully. In assessing the 45-year sentence, the trial court explicitly denied Case diminution of sentence for good behavior because this was a crime of violence, though the court did order that the sentences be served concurrently with the sentences Case was serving on his probation. Case has expressed remorse for the robbery.

On July 14, 2006, Case filed a written motion to reconsider sentence, urging that his sentence was constitutionally excessive. He also argued that the trial court did not adequately consider the mitigating circumstances, failed to adequately articulate reasons for the sentence, and failed to consider an alternative or less harsh sentence. In support of the motion, Case submitted a report from a psychologist who evaluated Case when he was an 18-year-old senior in high school. The report indicated that Case was of average intelligence but suffered from depression and had a history of family problems that underlay his acting out, oppositional, and antisocial behavior. The psychologist recommended counseling and evaluation for antidepressant medication. The court denied Case’s motion for | ¿reconsideration on August 9, 2006, and Case now appeals, arguing that the sentence imposed here:

1. Is excessive and disproportionate and needlessly imposes pain,

2. Fails to adequately consider mitigating circumstances in this matter,

3. Lacks sufficiently articulated reasons so as to supply a factual basis for the sentence imposed, and

4. Fails to adequately consider sentencing alternatives.

Our law on sentencing is well settled.

Case argues that the trial court’s application of La. C. Cr. P. art. 894.1 was fraught with errors. First, he argues that the court’s application of paragraph A was in error, because paragraph A relates to a trial court’s decision to impose a sentence of imprisonment, something that the trial | Bcourt correctly recognized was required by the statute of conviction. Probation or suspension of sentence was not an available option for Case’s sentence, so paragraph A was indeed of limited importance in this case.

Case next argues that the trial court’s findings of various factors under paragraph B were misplaced or inaccurate. Although the trial court’s findings on some of the factors are either thinly supported by the evidence or subsumed in the charge of armed robbery with a firearm, the record reflects that the trial court gave careful consideration to the seriousness of this offense and the potentially life-threatening consequences of the defendant’s crime. This type of offense, committed with a firearm in a public place, can easily escalate to an even more violent situation where the robbery victim or innocent bystanders may be injured or killed.

Most importantly, the trial court recognized that the defendant had received a significant benefit by the operation of his plea bargain that prevented the state from charging Case as an habitual offender or pursuing any other charges. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. The minimum sentence for armed robbery for a second felony habitual offender is 49½ years’ imprisonment at hard labor. La. R.S. 15:529.1; La. |,,R.S. 14:64; State v. Smith, 40,894 (La.App.2d Cir.7/26/06), 936 So.2d 255, writ denied, 06-2113 (La.3/30/07), 953 So.2d 60. Case’s actual sentence was less than the lowest sentence he could have received, absent his plea bargain. Given the significant reduction in exposure achieved through his plea bargain and the fact that the defendant was on probation for the commission of two prior felonies at the time he committed the instant offense, we do not find that the trial court committed reversible error in sentencing Case to serve a mid-range 45 years at hard labor for this inexcusable crime.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Case was sentenced to 40 years under La. R.S.14:64, and five years under La. R.S.14:64.3, for a total of 45 years, all to be served at hard labor, without benefit of probation, parole, or suspension of sentence.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey,
        623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,-519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

      . Without considering the additional exposure from La. R.S. 14:64.3.