author: JASPER E. JONES, Judge.

text:
    Tom R. SHELTON, Plaintiff-Appellant, v. COMMERCIAL UNION ASSURANCE COMPANY, Defendant-Appellee.
    No. 14503.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      John S. C. Massey by David G. Haynes, West Monroe, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by Brian E. Crawford, Monroe, for defendant-appel-lee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Plaintiff, Tom Shelton, appeals a summary judgment which rejected his demands against his liability insurer, Commercial Union Assurance Company, for sums he was required to pay in excess of his policy limits to settle a liability claim against him resulting from an automobile accident caused by the negligence of his minor daughter. We affirm.

In this accident which occurred September 21, 1976, a Mrs. Norman sustained personal injuries. Shelton reported the accident on September 23, 1976 to his agent who wrote his liability policy containing limits of $50,000 for injuries to one person, and $100,000 for all personal injury claims resulting from any accident. At the time Shelton reported the accident he requested his agent to increase the limits of his liability coverage to provide him with $100,000 for the injury of any one person, and $300,-000 for any injury resulting from any one accident. The agent advised Shelton that the request for the increase in coverage would have to be approved by the defendant. In October the increase was approved by the insurer and a policy endorsement reflecting coverage of $100,000/$300,000 was issued by the insurer. The endorsement reflected that the coverage as increased was effective as of September 19, 1976, which was the anniversary date of the original policy.

Mrs. Norman was hospitalized immediately following the accident and remained in the hospital for approximately six days. She was contacted by the defendant’s claims adjuster on September 28, and at this time she advised the adjuster that she was unconscious for a short period of time following the accident, and that she sustained back and neck injuries and bruises to her leg in the accident. On October 5 defendant’s adjuster sent medical authorization forms to Mrs. Norman preparatory to contacting Mrs. Norman’s physicians for the purpose of obtaining medical information concerning the nature and extent of Mrs. Norman’s injuries. Mrs. Norman never returned the signed forms authorizing defendant’s agent to contact her physicians for medical information concerning her condition.

On October 12 defendant received a letter from an attorney advising it that he represented Mrs. Norman in her claim for personal injuries. Following this notification defendant’s adjuster made numerous calls to Mrs. Norman’s attorney seeking medical reports for the purpose of evaluating the claims. On January 6, 1977 defendant’s adjuster received the first medical report on Mrs. Norman and it was from a chiropractor who had been treating her. On February 8 the insurer received a report from Dr. King, an orthopedic surgeon from Shreveport, stating that Mrs. Norman was suffering from cervical and lumbar contusions and ligamentous strains. In March and April the insurer received supplemental reports from Dr. King reflecting that Mrs. Norman continued to complain of back and neck discomfort.

On June 24, 1977 the insurer received an offer of compromise settlement from Mrs. Norman’s attorney in the amount of $20,-000. July 25 the insurer offered Mrs. Norman’s attorney the sum of $4,000 to settle her claim.

On August 19 Mrs. Norman changed attorneys, and the insurer received a letter from Mrs. Norman’s second attorney advising it of his representation. On September 7 Mrs. Norman’s attorney advised the insurer that Mrs. Norman was going to be hospitalized for treatment of her injuries, and under these circumstances it would be impossible to negotiate a settlement before prescription of the claim which would occur on September 21, and therefore, suit would be promptly instituted but that the insurer need not file an answer to the suit until compromise negotiations could be exhausted. Mrs. Norman’s attorney instituted suit on September 15 for approximately $225,-000. In early September Mrs. Norman’s medical condition seriously deteriorated, and the insurer received reports from a neurologist and from Dr. King that Mrs. Norman was suffering from carpal tunnel syndrome. The insurer also received a report on September 12 from a psychiatrist that Mrs. Norman was suffering from a depression neurosis.

Mrs. Norman underwent surgery for carpal tunnel syndrome on her right wrist in October, 1977, and on her left wrist in February, 1978. The insurer’s adjuster contacted Mrs. Norman’s attorney in January, February, and March, 1978 seeking to enter into settlement negotiations, but on each of these occasions was advised by Mrs. Norman’s attorney that he did not desire at that time to discuss settlement.

On June 28 Mrs. Norman’s attorney amended his suit substantially increasing his demands against Shelton and his insurer, and added Shelton’s uninsured motorist carrier as a party defendant. On June 30 the insurer’s adjuster received from Mrs. Norman’s attorney a courtesy copy of the amended petition and an offer of settlement for $250,000. This was the first settlement offer that the insurer had received from Mrs. Norman’s second attorney. Following the receipt of this settlement offer and the copy of the amended petition, the insurer on July 6 wrote Shelton a letter and advised him that claimant’s demands exceeded his coverage and that he alone would be liable for any judgment rendered in excess of the policy limits of $50,-000/$100,000, and that it was referring the suit to the insurer’s attorney for defense. Shelton was further advised that if he wished he could retain his own attorney to represent him on that portion of the claims in excess of the policy limits.

Shelton employed his own attorney and in settlement negotiations which followed, Shelton’s attorney, the insurer’s attorney, Mrs. Norman’s attorney, and the uninsured motorist carrier’s representative settled the case before trial. The settlement was concluded on June 22,1979 for $71,763.25. The insurer paid $49,263.25 because it had earlier paid on medical bills submitted by Mrs. Norman the difference between this amount and the $50,000 coverage. The uninsured motorist carrier paid $10,000, and Shelton paid $12,500. After this settlement was concluded Shelton instituted this action seeking to recover the $12,500 contributed by him to the settlement.

Shelton contends that the October 3,1976 endorsement to his liability policy increasing his coverage for any one injury from $50,000 to $100,000 which reflected on its face that the effective date of change was September 19, 1976, effectively provided him with liability coverage for the September 21, 1976 accident in the amount of $100,000 for the injury sustained by Mrs. Norman. He asserts that because this coverage was more than adequate to cover the amount for which the claim was settled, he should not have been required to make the $12,500 contribution to the settlement, and for this reason he should be reimbursed for this sum by his insurer.

Shelton contends in his suit that the insurer should have accepted the June 24, 1977 $20,000 settlement offer received by it from Mrs. Norman’s attorney, and that it was not in good faith when it refused to compromise the claim on this basis. Shelton further contends that the insurer was in bad faith because it failed to advise him of the $20,000 settlement offer and for its failure prior to July 6,1978 to advise him of the possibility of a claim in excess of his policy limits. Shelton alternatively contends that even if he had only $50,000 coverage that because of the insurer’s bad faith in handling the claim it became liable to him for the claims of Mrs. Norman in excess of his policy limit.

Defendant filed a motion for a summary judgment attaching to it depositions from the insurer’s adjuster, Henry Norris, and appellant, Tom Shelton, and an affidavit from the insurer’s agent and a certified copy of the policy.

The trial court stated in its written reasons for judgment that both counsel agreed that there were no issues of material fact. The facts surrounding the claims set forth by us were obtained from the exhibits attached to the motion for summary judgment. The trial court found that appellant only had $50,000/$100,000 coverage in effect on the date of the accident, and that this coverage was not increased by the endorsement to the policy increasing coverage based upon the request for the increase made by Shelton subsequent to the date of the accident. The trial court found that the insurer was not in bad faith when it rejected Mrs. Norman’s $20,000 compromise offer on June 24, 1977 because “at the time no one considered plaintiff’s injuries as significant.” The trial court noted that after Mrs. Norman’s medical picture deteriorated, the insurer never had an opportunity to settle the case within the policy limits, even though it had diligently sought to negotiate a settlement with Mrs. Norman’s second attorney. The court then concluded that while the insurer should have kept Shelton advised of Mrs. Norman’s deteriorating condition, that because there was no opportunity to settle within the policy limits following the change of the medical posture of the case, that defendant was not arbitrary in its actions and was in good faith.

Appellant assigns as error the trial court’s failure to find that the insurance policy provided him with coverage in the amount of $100,000 on Mrs. Norman’s claim, and alternatively that the trial court erred in failing to find the insurer liable for Mrs. Norman’s claim in excess of the $50,000 coverage because of the insurer’s bad faith in the following respects:

A. Failure of insurer to accept Mrs. Norman’s $20,000 offer to settle;

B. Insurer’s failure to advise appellant of the $20,000 offer: and

C. Insurer’s failure prior to July 1978 to advise appellant that the value of Mrs. Norman’s claims might exceed the $50,000 coverage.

IS APPELLANT’S INCREASE IN LIABILITY COVERAGE APPLICABLE TO CLAIMS RESULTING FROM THE SEPTEMBER 21, 1976 ACCIDENT?

In the decision of B. T. U. Insulators, Inc. v. Maryland Casualty Co., 175 So.2d 899 (La.App.2d Cir. 1965), it was held that an endorsement to a policy which provided collision coverage on a 1962 Ford truck which was both requested by the insured from the agent and issued by the agent subsequent to an accident where the truck was damaged, provided no coverage for the damage, even though the endorsement reflected an effective date prior to the accident. In that case the court stated:

“It would seem to be too clear to admit of argument that an insurance agent has no authority to contract for liability on behalf of the principal by incurring liability for a loss which has already been incurred.” Id. at 902.

Appellant acknowledges in his deposition that he had only $50,000/$100,000 coverage at the time of the accident, and that he did not seek to have the increase in coverage that he requested at the time he reported the accident backdated to cover the accident, which he was reporting.

The affidavit of the agent establishes that the request for the increase was made after the accident and appellant was then advised that the increase would have to be approved by the company and that this approval was granted on October 3, 1976. This agent states he then caused the endorsement reflecting the coverage increase to be issued. This endorsement reflected the date of its issuance (10/03/76) provided for coverage of $100,000/$300,000 and states “Policy Change Effective 09/19/76”. This was the anniversary day of the policy providing the $50,000/$100,000 coverage. Even though the effective date shown upon the endorsement was two days before the date of the accident on September 21,1976, we conclude as did the court in B. T. U. v. Maryland, supra, that the agent issuing this endorsement could not create liability for the insurance company for a loss that occurred prior to the request for the increase and the issuance of the endorsement increasing the coverage. The trial court was correct in concluding that the appellant’s increase in coverage was not available to satisfy claims resulting from the September 21, 1976 accident.

DID THE INSURER SHOW AN ABSENCE OF GOOD FAITH IN THE MANNER IN WHICH IT ATTEMPTED TO RESOLVE APPELLANT’S LIABILITY CLAIM AND THEREFORE BECOME RESPONSIBLE TO HIM FOR THE AMOUNT PAID BY HIM IN EXCESS OF THE INSURANCE COVERAGE?

An insurer is not required to settle a claim within policy limits under penalty of absolute liability for any excess judgment rendered against the insured. Nevertheless, an insurer may be liable for an excess judgment against its insured where the insurer’s refusal to settle within policy limits is found to be arbitrary or in bad faith. Cousins v. State Farm Mutual Automobile Ins. Co., 294 So.2d 272 (La.App.lst Cir. 1974), and authorities cited therein. In Cousins the court listed the criteria to evaluate whether an insurer is in bad faith for failure to compromise a claim within policy limits:

“(1) The probability of the insured’s liability; (2) the adequacy of the insurer’s investigation of the claim; (3) the extent of damages recoverable in excess of policy coverage; (4) rejection of offers in settlement after trial; (5) the extent of the insured’s exposure as compared to that of the insurer, and (6) the nondisclosure of relevant factors by the insured or insurer.” Id. at 275.

Appellant contends that the insurer was not in good faith when it failed to accept the $20,000 compromise offer made by Mrs. Norman on June 24, 1977. At the time this settlement offer was extended the only medical reports which the insurer had been given by Mrs. Norman’s attorney reflected that she had ligamentous strains in her neck and back. There was no indication in these medical reports that she had any disc pathology, bone injury, or other permanent injuries to the neck and back. She had been hospitalized for only six days following the accident, and plaintiff here does not contend in brief that there was ny indication that Mrs. Norman as of the date of this settlement offer had any other medical problems. While these personal injuries certainly are of some significance as was recognized by the insurer’s adjuster who extended a counter-offer of $4,000 to settle the claim, they are not severe enough to justify a settlement of $20,000. The insurer made a conscientious effort to resolve the claim by making a counter-offer which reflected a far more realistic evaluation of Mrs. Norman’s claim as it then existed than did Mrs. Norman’s settlement demand.

In Champion v. Farm Bur. Ins. Co., 352 So.2d 737 (La.App.3d Cir. 1977), the court stated:

“... the liability of an insurer for refusing to accept an offer of settlement is not predicated upon its failure to predict the correct outcome of the action it is defending, but rather whether it unreasonably exposes its insured to a judgment in excess of the policy limits, and whether the proposed settlements are rejected conscientiously in terms of deliberate judgment evaluation rather than for inadequate or no reason.” Id. at 740.

The refusal of defendant to pay the excessive amount demanded for settlement of the claim based upon the medical picture as it existed on June 24, 1977 was not unreasonable and does not reflect bad faith on its part.

Appellant contends that the insurer was in bad faith because it failed to advise appellant that it had received an offer from Mrs. Norman to settle the claim for $20,000. Appellant relies upon the decision of Roberte v. Southern Farm Bureau Casualty Ins. Co., 250 La. 105, 194 So.2d 713 (1967). In this case the insured had a liability policy providing $10,000 coverage for any one injury or death, and $20,000 coverage for any one accident. One person was killed in the accident and several were injured, and the death action appeared to have a value in excess of $10,000. The insurer apparently felt that the value of the total of the other claims might be less than $10,000. The insurer received an offer to settle all claims for $20,000 and failed to transmit it to the insured. The insurer rejected the settlement offer and after a trial there was a total judgment in favor of all claimants in the amount of $28,000; $20,000 against the insurance company and the insured, and $8,000 against the insured only for that portion of the judgment in excess of the policy limits. The supreme court there stated that while the insurance company was not in bad faith in rejecting the compromise offer and litigating the claims, that the insurer was guilty of bad faith in failing to advise the insured of the compromise offer of settlement. In holding the insurer guilty of bad faith the court stated:

“However, the insured, Roberie, was kept in the dark; he was never apprised of the offers of compromise nor warned of his potential liability; he was ignored. He needed information and advice on the point of his potential liability, which he was not given by his representative, his insurer. A conflict of interest arose between the insurer and the insured. The insurer failed to discharge its duty towards its insured, thereby precluding any decisive action on his part. We find that the actions of Southern Farm Bureau Casualty Insurance Company towards Ro-berie were more than negligent; they were in bad faith and in utter disregard of Roberie’s natural desire to protect himself from financial loss.” Id. 250 La. 105, 194 So.2d at 716.

The Roberie court at the outset of its discussion of the liability of the insurer, stated:

“A determination as to what constitutes bad faith or lack of good faith depends on the facts and circumstances of each case.” Id. at 716.

There is a vast difference between the facts of Roberie and these presented here. In Roberie the death claim was clearly worth in excess of the $10,000 policy limits and all the claimants were offering to settle the total claim for $20,000, which was also within the policy limits for one accident. Though the opinion does not particularize the details of the claims asserted other than the death action, the circumstances strongly indicate that the total value of these other claims had a settlement value of less than $10,000, and that the difference in the value of the other claims and the $10,000 coverage available to apply to them in the $20,-000 settlement demand was construed to be excess settlement demand on the death claim above the $10,000 available to it. If the insured had known of the settlement offer, he might well have taken some action with regard to that portion of the demand which was in reality a demand for damages for the death claim above the insurance coverage available to pay for the claim. The court in the opinion appears to recognize that if the insured had known of the settlement offer he might have made a personal contribution to it to have protected himself from greater loss.

In this case even if the insurer had immediately advised the appellant of the settlement offer, appellant would have taken no action with regard to it because it was an excessive demand and appellant at this point still had a $30,000 cushion in his coverage above the settlement demand. He could not have justified paying any portion of the demand from his own funds as Ro-berie could have done had he been aware of the settlement offer. By the time the medical picture on Mrs. Norman had deteriorated to the extent that acceptance of the within policy limit settlement offer would have been justified, her second attorney had by letter of September 7 advised that he could not negotiate a settlement at that time because his client was being hospitalized and that he planned to institute suit to interrupt prescription. He filed suit on September 15 demanding $225,000. The first report received by the insurer indicating that Mrs. Norman had a carpal tunnel syndrome was on September 9 and the first report received indicating she had a depression neurosis was received on September 12.

The insurer showed good faith by making a conscientious effort to settle the claim by attempting to open settlement negotiations with plaintiff’s second attorney as soon as the medical picture reflected that Mrs. Norman had serious health problems other than soft tissue injury to the neck and back. The adjuster unsuccessfully attempted to initiate settlement negotiations in January, February, and March, 1978.

Appellant further contends that the insurer showed an absence of good faith by failing to communicate to him the various medical information received by the insurer which evidenced that Mrs. Norman’s physical condition was deteriorating and that there was a possibility of a claim against appellant which would exceed his policy limits. The first settlement offer received by the insurer from Mrs. Norman’s second attorney, other than the demand contained in the initial suit filed September 15,1977, was a $250,000 settlement demand made June 30, 1978. Following this settlement demand, which was the first indication to the insurer that the claim could not be resolved within the policy limits, the insurer referred the suit to its attorney for defense, advised appellant on July 6 of the possibility of an excess claim, and that he could secure a lawyer if he saw fit to defend the claim against him in excess of his policy limits. Appellant then immediately secured his own attorney, and almost a year later the case was settled out of court. Appellant was in no way prejudiced by virtue of the fact that he was unaware that the $20,000 settlement offer had been earlier made, nor was he prejudiced by failing to receive the medical reports on Mrs. Norman’s condition that were rendered in the latter part of 1977 and the early part of 1978, reflecting her deteriorating medical condition.

These circumstances distinguish this case from the Roberie, supra, case.

The court in Cousins, supra, quoting from Younger v. Lumbermen’s Mutual Casualty Company, La.App., 174 So.2d 672, set forth the issue here presented as follows:

“The question is always: ‘Did the insurer exercise that degree of skill, judgment, and consideration for the welfare of the insured which it, as a skilled professional defender of lawsuits having sole charge of the investigation, settlement, and trial of the suit may have been expected to utilize?’ ” Id. at 275-276.

The insurer here immediately contacted Mrs. Norman following the accident, sought medical authorization which Mrs. Norman failed to give, indicated an interest in settlement with Mrs. Norman’s first and second attorneys by making numerous contacts with them seeking settlement offers, properly rejected an excessive demand in settlement which was for a sum less than policy limits, immediately advised the insured upon receipt of Mrs. Norman’s settlement demand in excess of the policy limits of the possibility of a claim in excess of policy limits and suggested to him that he consider securing his own attorney. This advice and information was given to the insured at a time when he had ample time to secure an attorney of his choice to advise and protect his interest. We find no improper conduct on the part of the insurer in the manner it handled this claim. There is no evidence of an absence of good faith.

Judgment is AFFIRMED.

      . This suit named appellant as a party defendant along with his insurer, and was served upon appellant, thereby giving him full knowledge of that demand in excess of his policy limits.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Jarrell MORGAN, Plaintiff-Appellee, v. Harry S. GATES et al., Defendants-Appellants.
    No. 14505.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      James B. Wells and Associates by James B. Wells, Bossier City, for defendants-appellants.
    Donald R. Miller, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff, judgment creditor of Harry Gates, filed this action in April, 1980 seeking to annul a certain sale by Gates to his parents of immovable property in Webster Parish. Plaintiff alleged that the sale of the immovable property by the defendant— debtor to his parents, who were also named defendants, was a simulated sale or, alternatively, was a sale in fraud of his rights as the vendor’s creditor. The trial court ruled in favor of plaintiff and ordered the purported sale annulled and set aside. Defendants appealed.

On October 8, 1979, plaintiff filed suit against defendants Harry and Rubert Gates which culminated in a judgment against those defendants, in solido, for $10,000 plus interest and attorney fees. On October 23, 1979, after plaintiff’s original suit was filed but before judgment was rendered on January 30, 1980, Harry Gates executed an act of sale to his parents conveying three lots in a Webster Parish subdivision together with all buildings and improvements thereon. The act of sale recited a cash consideration of $5,000 plus assumption of a $13,525 mortgage, a $805.07 judgment, a $17,700 mortgage, and a $96.50 judgment. It was established at trial that all of the assumed debts had been satisfied prior to the transfer except the $17,700 mortgage which had a balance of $17,400.

When the act of sale was signed, Harry Gates was in severe financial straits. He testified as to his numerous outstanding debts which totaled over $50,000 at the time the act of sale was signed. His principal asset was his equity in the property he sold to his parents; he valued the property at $30,000, leaving an equity of approximately $12,600. The value of his other assets, automobiles and equipment, was not established. Gates testified that his parents were generally aware of his financial condition on the date the act was signed.

When questioned about his motive for executing the deed to his parents, Harry Gates responded that he needed some cash to pay overdue debts on two vehicles so that they would not be seized. He stated that he received the recited cash consideration from his parents in the form of a cashier’s check and had used the proceeds to pay some past due notes. The cashier’s check was filed into evidence. Gates further testified that the parties did not execute any counter letters nor did the parties agree that Harry was to repay the $5,000 consideration.

The testimony of Vernon Gates, father of Harry Gates, was in accord with the testimony of his son. Vernon Gates testified that his son needed some cash, but that he, Vernon, had loaned Harry $7,000 in the past and he felt it would be unfair to his other children to give Harry more money without some collateral. Therefore, Vernon and his wife agreed to purchase Harry’s property for $5,000 cash and assumption of the mortgage on the property.

Harry continued to live in the house located on the property. His parents, the vendees, never occupied the premises. Additionally, Harry Gates filed a homestead exemption on the property subsequent to October 23, 1979. Although Harry continued to live on the premises and did not pay rent, his parents gave him the money to pay the house note each month. The vice president of the bank holding the mortgage on the property testified that he and the other bank officers were unaware of the transfer. Harry Gates continued to pay the mortgage note in person each month with funds given to him by his mother.

The plaintiff testified that he had obtained a judgment against Harry and Rubert Gates, in solido, that he had not been paid any sum under the judgment and that his judgment debtor has not pointed out to him any property or any way he could collect his judgment.

The trial court apparently determined that the purported transfer was a simulated sale based on LSA-C.C. Art. 2480 which creates a presumption of simulation if the thing sold remains in possession of the vendor. The presumption may be rebutted by proof establishing the good faith of the parties and the reality of the sale. Although the trial court determined that the vendees were acting in good faith, a conclusion we agree with, it apparently found that the parties had not sufficiently established the reality of the sale.

We hold that the sale in this case was not a simulation because the parties to the sale established that consideration had been given by the vendees and received by the vendor. The jurisprudence of this state is settled that if any consideration, however small, is given for the property, the sale may not be set aside as a simulation. Russell v. Culpepper, 344 So.2d 1372 (La.1977); Bell v. Bell, 339 So.2d 1333 (La.App. 3d Cir. 1976); Adams v. Trichel, 304 So.2d 740 (La. App. 2d Cir. 1974). The trial court was in error in declaring the sale a simulation.

As noted above, plaintiff’s petition sought to have the sale set aside on the grounds that it was a simulated sale or, alternatively, on the grounds that it was a contract made in fraud of his rights as a creditor. While plaintiff’s attempt to have the sale declared a simulation is without merit, his alternative revocatory action has merit. The rules governing revocatory actions, principally LSA-C.C. Arts. 1968, et seq., form the basis for our opinion.

The revocatory action is an action which the law grants to every creditor to annul any contract made in fraud of his rights. LSA-C.C. Art. 1970. In order to exercise this action, it must be established that the debtor does not have property sufficient to satisfy the debt of the complaining creditor. LSA-C.C. Art. 1971. Additionally, the complaining creditor must obtain a judgment against his debtor which liquidates the debt owed. LSA-C.C. Art. 1972.

The following articles impose additional proof requirements on the creditor bringing the revocatory action:

LSA-C.C. Art. 1978:

“No contract shall be avoided by this action but such as are made in fraud of creditors, and such as, if carried into execution, would have the effect of defrauding them. If made in good faith, it can not be annulled, although it prove injurious to the creditors; and although made in bad faith, it can not be rescinded, unless it operate to their injury.”

LSA-C.C. Art. 1979:

“If the contract be onerous, and the original debtor made it with intent to defraud his creditors, but the person, with whom he contracted, was in good faith, the contract can not be annulled, except under the circumstances and in the manner hereinafter provided.”

The prerequisites for the revocatory action have been summarized as follows: (1) insolvency of the debtor; (2) injury to the creditor; (3) intent to defraud the creditor; and (4) preexisting and accrued indebtedness. Redding v. Rupp, 375 So.2d 761 (La. App. 4th Cir. 1979), writ denied 378 So.2d 437 (La.1979); Perigoni v. McNiece, 307 So.2d 407 (La.App. 4th Cir. 1974); National Bank of Bossier City v. Hardcastle, 204 So.2d 142 (La.App. 2d Cir. 1967).

The plaintiff in this case has adequately established that he stood as a creditor of Harry Gates at the time of the purported transfer; thus, there was an accrued indebtedness at that time. It is also clear from the testimony of Harry Gates that he was in insolvent circumstances. LSA-C.C. Art. 1983 defines insolvency as the situation which exists when the whole property and credits of a person are not equal in amount to the debts due by the person. Further, if the person alleging the insolvency shows the amount of debts, it is incumbent on the other party to show property to an equal or greater amount. LSA-C.C. Art. 1985. Plaintiff established that Harry Gates had outstanding debts totaling over $50,000. The defendants failed to counter this evidence; therefore, it is clear that Harry Gates was insolvent at the time of the alleged transfer.

It is also clear that the purported transfer is injurious to the plaintiff-creditor. Harry Gates apparently has no property or credits on which plaintiff’s judgment can be executed except the property he transferred to his parents. We also find that Harry Gates attempted the transfer in order to remove this asset from the reach of his creditors, or at least in order to give his parents as creditors a preference over other creditors. The timing of the transfer, occurring shortly after the original suit was filed by plaintiff, and the consideration paid for the property support this finding.

All of the prerequisites to successful prosecution of the revocatory action were established, that is, insolvency of the debtor, injury to the creditor, intent by the debtor to defraud the creditor and a preexisting and accrued indebtedness.

The elements of the good or bad faith or fraudulent intent of the transferees and of the value of the property as compared to the price paid are to be considered in determining the relief to which the plaintiff is entitled under the articles of the Civil Code. These considerations are complicated in this case because the transaction, although clearly onerous, involved a cash consideration of $5,000 and a dation en paiement to the extent of the $7,000 previously advanced by the parents to their son which was considered a part of the consideration by the parties.

LSA-C.C. Art. 2658 allows an insolvent debtor to lawfully sell for the price which is paid to him but forbids the insolvent debtor to give in payment to one creditor, to the prejudice of the others, any other thing than the sum of money due. LSA-C.C. Art. 1984 provides that every contract shall be deemed to have been made in fraud of creditors when the obligee knew that the obligor was insolvent and when the contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obli-gor.

LSA-C.C. Art. 1979, quoted above, prohibits the annulment of an onerous contract when the party with whom the insolvent debtor contracted was in good faith. An exception to this rule is found in LSA-C.C. Art. 1981:

“If the contract be onerous, but made in fraud on the part of the debtor, but in good faith on the part of the person with whom he contracted, if the value of the property transferred by such contract exceed by one-fifth the price or consideration given for it, the creditors may annul the contract, and take back the property on paying the price or the value of the consideration with interest, but in this case they shall not receive the fruits.”

LSA-C.C. Art. 1982 provides that if the party with whom the debtor contracted be in fraud as well as the debtor, he shall not, on the annulling of the contract, be entitled to a restitution of the price or consideration he may have paid, except for so much as he shall prove has inured to the benefit of the creditor. If the only consideration be a sum due from such debtor to the party with whom he contracted then the only restitution to be made is placing the parties in the situation in which they were before the contract complained of was made. LSA-C.C. Art. 1983 provides that if the fraud consisted merely in the endeavor to obtain a preference over other creditors, for the securing of payment of a just debt, the endeavor to obtain such preference is considered a constructive fraud and the parties shall only lose the advantage endeavored to be secured by such contract, and shall be reimbursed what he may have given or paid, but without interest. It has been held that Article 1982 is applicable only when the parties have contracted with the deliberate intent and purpose of defrauding other creditors, that is, when active fraud has been committed. Article 1983 is applicable where there is a presumption of fraud arising out of the granting of a mere preference to one creditor over another creditor as provided in Article 1984 and in Gast v. Gast, 206 La. 285, 19 So.2d 138 (1944).

LSA-C.C. Art. 1977 provides that the judgment in a revocatory action shall be that the contract be avoided as to its effect on the complaining creditors and that the property taken from the original debtor’s estate by virtue thereof or the value of such property to the amount of the debt, be applied to the payment of the plaintiff. Under Article 1977 the effect of a judgment of revocation is that the contract is avoided only as to the complaining creditor and the property is applied to the payment of the judgment of that creditor; the judgment of revocation does not inure to the benefit of other creditors. Martin Lebreton Insurance Agency v. Phillips, 364 So.2d 1032 (La.1978).

From all of this we draw these conclusions. To the extent that the transaction complained of amounted to a dation en paiement to one creditor in preference to another, a forbidden act amounting to constructive fraud, the transaction is subject to revocation. It follows that the part of the consideration representing an existing debt for which the property was given in payment, amounting to $7,000, should not be considered in determining whether the price paid was more than Vs less than the value of the property in considering the applicability of LSA-C.C. Art. 1981. The property was valued at $30,000; the price paid was $5,000 cash and the assumption of a mortgage on which the balance was $17,400, or a total price of $22,400. The value of the property exceeded by Vs the value of the consideration paid and, consequently, may be annulled, even if the vendees in this case were in good faith.

We concur in the trial court’s finding that the vendees were in good faith in the sense that they had no deliberate intent and purpose of defrauding other creditors and had no active fraudulent intent. There was, however, constructive fraud in connection with the dation en paiement aspect of the transaction. The transferees’ right to restitution of the consideration paid, therefore, is governed by Article 1983 which applies when the fraud consists merely in the obtaining of a preference over other creditors for the payment of a just debt, and not by Article 1981 which applies when the transferee is entirely in good faith and not by Article 1982 which applies when the transferee deliberately intends to defraud other creditors.

Putting all this together, it is our conclusion that the sale should be annulled only as it affects the rights of the plaintiff judgment creditor and only upon restitution to the defendant transferees of the $5,000 consideration paid by them for the property. Accordingly, the judgment will be recast to reflect that result.

The district court judgment was also rendered against Rubert Gates and the Webster Parish Clerk of Court. These parties have no interest in the outcome of this litigation and there is no reason they should be cast in judgment, although named as defendants.

The judgment of the district court is reversed and set aside. Judgment is hereby rendered in favor of plaintiff, Jarrell Morgan, and against defendants, Harry S. Gates, Mattie Jones Gates, and Vernon Walter Gates, decreeing that the certain sale by Harry S. Gates as vendor and Mattie Jones Gates and Vernon Walter Gates as vendees, dated October 23, 1979, recorded under Registry No. 282809 of the Conveyance Records of Webster Parish, Louisiana in Conveyance Book 527, Page 60, conveying the following described property, to-wit:

Lots 236, 237 and 238, Palmetto Beach Estates Subdivision, together with all buildings and improvements thereon, located in Webster Parish, Louisiana, and recorded under Registry No. 252868 of the Conveyance and Mortgage Records of Webster Parish, Louisiana,

is hereby annulled insofar and only insofar as it affects the rights of the plaintiff under that certain judgment rendered by the Twenty-Sixth Judicial District Court for Webster Parish, Louisiana in suit No. 38,597 in favor of plaintiff against Harry S. Gates and Rubert . Gates in the amount of $10,000 plus interest, attorney fees, and costs; and decreeing that said property is subject to execution under said judgment, provided, however, that out of the proceeds of a sale of said property under execution the defendants, Mattie Jones Gates and Vernon Walter Gates shall be entitled to receive the sum of $5,000 as reimbursement of the consideration paid by them for said sale in preference and priority to the rights of plaintiff under his said judgment. All costs of these proceedings are assessed to the defendants, Harry S. Gates, Mattie Jones Gates, and Vernon Walter Gates, in solido.

Reversed and rendered.


text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. FEDERAL PACKING CO. and Employers Insurance of Wausau, Appellees.
    No. WW-389.
    District Court of Appeal of Florida, First District.
    April 10, 1981.
    Clare D. Dryfuss, Tallahassee, for appellant.
    W. L. Adams and Steven Kronenberg, Miami, for appellees.
   LILES, WOODIE A., (Retired) Associate Judge.

The Trust Fund argues there is insufficient evidence to support the deputy commissioner’s order that the employer/carrier be reimbursed from the fund for money the carrier had paid on a workers’ compensation claim. We agree and reverse.

Section 440.49 provides that an employer who hires a person with a pre-existing permanent impairment may be entitled to reimbursement from the Trust Fund when the new injury merges with the pre-exist-ing condition to cause a greater disability than would have resulted from the second injury alone. Accordingly, Section 440.-49(2)(f) provides that no reimbursement shall be allowed unless “it is established that the employer reached an informed conclusion prior to the occurrence of the subsequent injury or occupational disease that the pre-existing physical condition is permanent and is, or is likely to be, a hindrance or obstacle to employment.” The record does not establish that the employer in this case reached an informed conclusion that the claimant’s pre-existing physical condition was permanent.

The only evidence relating to the employer’s knowledge of a prior injury was an affidavit by the employer, which stated:

Prior to these injuries in 1977, this man had injuries to his neck of which I was aware of at the time (sic). I allowed him to continue working for the company despite being aware of his pre-existing problems with his neck. I was aware of his pre-existing problem in his neck prior to his accident of 1977 while working for my company (sic).

It is clear from this affidavit that the employer failed to meet the requirements of Section 440.49(2)(f).

Therefore, the order of the deputy commissioner is REVERSED.

SHIVERS and WENTWORTH, JJ., concur.


author: SCHOTT, Judge.

text:
    Kenneth C. LEE v. PRATT-FARNSWORTH CONSTRUCTION CO., INC. and Liberty Mutual Insurance Company.
    No. 11927.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Order on Rehearing April 3, 1981.
    Joint Motion and Order for Remand May 4, 1981.
    Rebecca B. Macke, Metairie, for plaintiff-appellee.
    A. Miles Pratt, III, Metairie, for defendants-appellants.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

This is a workers’ compensation case in which plaintiff was awarded benefits for total and permanent disability pursuant to LSA-R.S. 23:1221(2). Defendants, the employer and its insurer, have appealed claiming that plaintiff is entitled only to benefits for partial disability under R.S. 23:1221(3). Plaintiff has answered the appeal seeking an amendment to require payment of past and future medical expenses.

Plaintiff, a truck driver, was injured in June, 1976, when the tail gate of his truck fell on his ankle. He suffered a fractured tibia and fibula along with extensive soft tissue injuries to ligaments and membranes. He was placed in a long leg cast until August, when this was changed for a short leg cast, and was discharged from treatment in November, 1976, by his orthopedic surgeon, Dr. Hamilton. His job as a truck driver for defendant was no longer available to him so he took a truck driver’s job with one James Crawford, for whom he continued to work until trial time in August, 1979, earning about $1,000 per month.

According to plaintiff, he works in pain and has limitations with the use of his leg which interfere with the safe and adequate performance of his job as a truck driver. Because of his friendship with Crawford he is not expected to work full time, he is permitted to rest and relax during working hours when his pain requires this, and he is not required to drive long hauls.

In February, 1977, plaintiff was examined by Dr. Stuart Phillips, another orthopedic surgeon. At this time plaintiff’s main complaint concerned his knee rather than the ankle. Dr. Phillips diagnosed a tom cartilage which he attributed to the accident. This developed into one of the principal issues at the trial because plaintiff had never complained to Dr. Hamilton about his knee and a third orthopedist, Dr. Stokes, who examined plaintiff a short time after he was examined by Phillips testified that plaintiff said nothing to him about the knee. Furthermore, Dr. Hamilton questioned causal connection between the accident and the knee problem because so much time passed before plaintiff first complained to Phillips about the knee, but the latter explained that the knee symptoms were obscured as long as the ankle was healing and his leg was in the casts, both of which covered the knee. The resolution of this issue in favor of causation was within the fact finding province of the trial judge and will not be disturbed on appeal.

On the basis of X-ray studies Dr. Phillips also diagnosed arthritis in the ankle of such magnitude that it was more compatible with a person of 50 years of age rather than a 33 year old as was plaintiff. This condition was likewise attributed to the accident. This condition resulted in some limitation of motion in plaintiff’s foot.

Dr. Phillips thought that the knee and ankle would get worse and recommended surgery to remove the cartilage. He felt that this would become absolutely necessary in the future because the knee would eventually lock.

When asked about the degree of pain plaintiff was experiencing Dr. Phillips was somewhat vague in explaining that pain is subjective and varies according to a person’s tolerance of pain, but that considerable pain would probably be suffered by plaintiff from overactivity and in sitting, stooping, crawling and walking.

In order for the trial judge to conclude that plaintiff was totally and permanently disabled he had to believe plaintiff’s testimony concerning his pain and physical limitations. Once again, we accede to the fact finding role of the trial judge on this point since we cannot conclude that error is manifest.

However, defendants rely on Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980) for the proposition that even though plaintiff may be working in pain where he is able to find work on a regular basis he is only partially disabled. But the Dusang case must now be read in connection with Oster v. Wetzel, 390 So.2d 1318 (La.1980); Calogero v. City of New Orleans, 388 So.2d 820 (La.1980) and Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981), in which the court expounded on and applied the “odd-lot” doctrine. Under these cases an employee is entitled to compensation for total disability when, as a result of a compensable injury, he is unable to perform work for which a reasonably dependable market exists. If he performs his tasks in pain his employment opportunities are severely limited. Once the employee establishes that he is working in substantial pain and he further establishes a prima facie case that because of his physical impairment and other factors such as mental capacity, education and training, a reasonable stable job market does not exist for his' services, the burden shifts to the employer to rebut the prima facie case with evidence that some form of suitable work is available as a practical matter to that employee.

Plaintiff produced an occupational therapist who testified that she tested him and was satisfied after three of twenty routine tests that he was limited in his ability to work as a truck driver because of his pain. Plaintiff has an eighth grade education, is 33 years of age and has never done anything other than drive trucks. The therapist testified unequivocally that his employment opportunities were severely limited and that he was only able to hold the present job because it was “sheltered” with the employer making unusual concessions to accommodate plaintiff. We have concluded that this testimony and these circumstances provide the prima facie case spoken of in the cited cases, and since defendants offered no evidence to rebut plaintiff’s case, the trial judge’s conclusion that plaintiff was entitled to total and permanent disability is correct.

As to plaintiff’s answer to the appeal, the record does not provide any support for his position. There is no evidence of any unpaid past medical bills or of the need for any medical treatment in the future. The only possible medical attention required in the future is the removal of the tom cartilage which Dr. Phillips stated would be necessary, but plaintiff’s own testimony shows that he has no intention of having such an operation in the foreseeable future. Thus, the case is unlike Wilson v. Ebasco Services, Inc., supra, where plaintiff needed medical treatment immediately and could not secure it without the employer guaranteeing payment of the bills.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

ORDER

We grant a rehearing on the application of Pratt-Farnsworth Construction Company, Inc. and Liberty Mutual Insurance Company, defendants and appellants.

The matter will be submitted on rehearing on briefs only to be filed on or before April 20,1981.

Appellee should address the argument presented by appellants that they are entitled to a remand considering that the case was tried in August, 1979, and appellants were not charged with the knowledge of the burden of proof in odd lot cases developed by the Supreme Court in 1980 and 1981.

JOINT MOTION AND ORDER , FOR REMAND

On joint motion of Rebecca Macke, Attorney for Kenneth C. Lee, Plaintiff and Ap-pellee, and Darryl D. Sicarelli, Attorney for Pratt-Farnsworth Construction Company, Inc. and Liberty Mutual Insurance Company, Defendants and Appellants and upon suggesting to the Court that they desire that the above referenced matter be remanded to Division “E” of the Civil District Court for the Parish of Orleans, Honorable Gerald P. Fedoroff, Judge, for the purposes of approval of a compromise workmen’s compensation settlement.

Considering the foregoing;

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the foregoing action, entitled “KENNETH C. LEE vs. PRATT-FARNSWORTH CONSTRUCTION COMPANY, INC. AND LIBERTY MUTUAL INSURANCE COMPANY”, is remanded to Division “E” of the Civil District Court for the Parish of Orleans, Honorable Gerald P. Fedoroff, Judge for the purposes of approval of a compromise workmen’s compensation settlement.


author: STOKER, Judge.

text:
    LINZAY DOWNS, INC., Plaintiff-Appellee, v. R. E. HEIDT CONSTRUCTION COMPANY, INC., et al., Defendants-Appellants.
    No. 8089.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied May 4, 1981.
    Clanton & Johnson, John W. Johnson, Eunice, for defendant-appellant.
    Kenneth Pitre, Eunice, for plaintiff-ap-pellee.
    Woodley, Barnett, Cox, Williams & Fen-et, Robert W. Fenet, Lake Charles, for defendant-appellee-appellant.
    Fruge & DeJean, Kenneth W. DeJean, Lafayette, for defendant-appellant-appel-lee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   STOKER, Judge.

Pursuant to LSA-R.S. 9:4821 plaintiff, Linzay Downs, Inc., filed a rule to show cause why certain liens should not be can-celled as untimely filed under LSA-R.S. 9:4812. The defendants-in-rule were R. E. Heidt Construction Company, Inc., (Heidt); Hosea Johnson Building Materials, Inc., (Hosea Johnson); Eunice Soil Cement, Inc., (Eunice Soil Cement); and Lee’s Plumbing and Electrical Supply, Inc. Plaintiff chose not to press the rule against Lee’s Plumbing and Electrical Supply, Inc. Judgment was signed June 30, 1980, in favor of plaintiff-in-rule ordering cancellation of the liens recorded by Heidt, Hosea Johnson and Eunice Soil Cement. Hosea Johnson moved for a new trial and in written reasons for judgment the court recognized the validity in part of Hosea Johnson’s lien. Heidt, Hosea Johnson and Eunice Soil Cement appealed. Eunice Soil Cement abandoned its appeal by failing to file a brief or appear before this court prior to oral argument. The appellants before us are Heidt and Hosea Johnson.

The issue on appeal is whether Heidt and Hosea Johnson timely filed lien affidavits pursuant to LSA-R.S. 9:4812.

Plaintiff, Linzay Downs, Inc., is the owner of a tract of land in St. Landry Parish on which it decided to build a race track. The race track complex was to include a track, a club house, parking areas, stables and jockey quarters. The plaintiff entered into six written contracts with six different parties for various aspects of the construction work. Plaintiff also entered into verbal agreements with some parties for work to be done in constructing the complex. In addition the plaintiff employed a crew of men who worked under plaintiff’s direct supervision to perform work in construction of the complex which was not included in any of the contracts or verbal agreements.

Defendant-appellant Heidt entered into a verbal agreement with plaintiff, Linzay Downs, Inc., to perform asphalt work. This work was performed on July 12, 1979. Heidt recorded a lien on January 2, 1980, asserting that it was owed $8648.29 for this asphalt work.

Defendant-appellant Hosea Johnson furnished materials to Linzay Downs during the period of time that work was done under the six written contracts and for a time thereafter. Hosea Johnson received payment for some of these materials but has not received payment for materials furnished from June 29, 1979, to October 18, 1979. Hosea Johnson recorded a lien on December 17,1979, for $4159.06 to cover the cost of materials furnished to Linzay Downs.

In written reasons for judgment the trial judge concluded that each contract for work at the Linzay Downs complex stood alone and that there were no general contractor — sub-contractor relationships involved. The court found that Heidt performed its last work on July 12, 1979, and that the lien filed January 2, 1980, was untimely filed since it was not recorded within sixty days of July 12, 1979.

In its original reasons for judgment the court found that Hosea Johnson provided materials to Linzay Downs on an open account basis and that the lien was invalid. Following a motion for a new trial the court rendered additional reasons for judgment in which it recognized the validity of Hosea Johnson’s lien in part. The court reasoned that Hosea Johnson had two separate agreements with Linzay Downs. The court classified the first agreement as one of the original contracts for construction of the complex which was completed and paid for. The second agreement was classified as a sale on an open account of materials for upkeep, repairs, and maintenance. The judge reasoned that each purchase on open account had to be secured by a separate lien filed within sixty days of purchase. The court recognized Hosea Johnson’s lien for $44.47 as represented by the invoice of October 18, 1979.

On appeal Heidt contends that since the contract entered into between Shay Homes and Linzay Downs for the construction of track railings had never been accepted as complete nor had a notice of default been filed of record that Heidt had an open-ended period within which to file its lien. We find no merit to this argument. We do not believe that the lack of a recorded acceptance or notice of default for the Shay Homes contract provides an open-ended period in which lien affidavits may be filed by those not a party to the Shay Homes contract.

Hosea Johnson contends that the trial judge erred in three significant respects:

(1) In concluding that there were two separate agreements between Hosea Johnson and Linzay Downs.

(2) In concluding that each purchase on open account would have to be secured by a separate lien.

(3) In applying the acceptance filed in connection with the M'. D. Descant contract (one of the six written contracts) to the agreement between Hosea Johnson and Linzay Downs.

We agree with Hosea Johnson that the trial court erred. Hosea Johnson had an agreement to furnish materials to Lin-zay Downs which were used in the construction of the Linzay Downs racing complex. The Linzay Downs maintenance crew used the materials furnished by Hosea Johnson to perform construction work which was independent of that work done under the six written contracts.

The October 18, 1979, invoice for $44.47 covers the purchase of one gallon of paint and a jig saw. At the rule to show cause Richard Ledoux, the maintenance supervisor for Linzay Downs, in response to a question about the invoiced items, testified as follows:

“Q. What was the jig saw used for?
A. The jig saw was a replacement jig saw for a man that worked for me at the track. There were some of the tools that we needed that the track didn’t have, didn’t own and in this case Mr. Soileau went and got his own jig saw and we used it and it subsequently burnt out. So, I replaced that. I went and got him another one to give him back his personal item is what it boils down to.
Q. What was the paint used for?
A. I’m not really sure * * * just off hand I couldn’t tell you right here what the paint was for. If I knew the color or something * * * it more than likely was the paint that was used to finish painting a rail that we put out by the patio. We found we had a safety hazard there. A lady almost rolled down the hill one day, so, we put a patio rail up.
Q. Who put up the patio rail?
A. The maintenance crew. We put it up and painted it.”

The testimony establishes that the saw was purchased and given to a workman as a replacement for his tool that had been expended in the construction of the tract complex. As a type of payment or reimbursement to a worker we feel that this constitutes an item which can be secured by a lien.

The testimony of Ledoux reveals that the gallon of paint was used to paint a railing which had been constructed around a patio area by the maintenance crew. The paint was material furnished to be used in “construction” within the meaning of LSA-R.S. 9:4812. We find that the lien affidavit filed December 18, 1979, was timely filed within sixty days of the last furnishing of materials by Hosea Johnson. Additionally, we find that the lien affidavit serves to preserve Hosea Johnson’s claim for $4,159.06 representing the cost of materials furnished from June 29,1979, to October 18, 1979. We interpret LSA-R.S. 9:4812 to mean that as long as the lien affidavit is timely filed within sixty days of the last furnishing of materials that the lien secures the entire unpaid sum which represents the cost of the materials furnished. Albert K. Newlin, Inc., v. Weingarten’s Markets Realty, 253 So.2d 594 (La.App. 3rd Cir. 1971).

ATTORNEY’S FEES

LSA-R.S. 9:4821 provides in part:

“Any owner of immovable property against which a lien has been filed shall be entitled to judgment canceling such lien upon proof in a summary proceeding that the lien is invalid. In the event the owner by certified mail to the lien claimant requests the cancellation of the lien and states the reason why the lien is invalid, and the lien is not canceled within thirty days after receipt of such written request, the owner, upon successful prosecution of his suit and a showing that the refusal to cancel the lien was arbitrary, capricious, and unreasonable, shall be entitled to reasonable attorney’s fees.”

The trial judge awarded plaintiff attorney’s fees of $1,000.00. We reverse this award. Reasonable attorney’s fees are to be awarded upon successful prosecution of a suit when there has been a showing that the refusal to cancel the lien was arbitrary, capricious, and unreasonable. Plaintiff has not made this showing. We find that Heidt’s failure to cancel its lien was not arbitrary, capricious and unreasonable. Furthermore, since we recognize the validity of Hosea Johnson’s lien the failure to cancel this lien cannot be held to be arbitrary, capricious and unreasonable.

For the above and foregoing reasons the judgment of the trial court ordering cancellation of certain liens filed against the property of Linzay Downs, Inc., is affirmed in part and reversed in part. We affirm the judgment insofar as it declared the lien filed by R. E. Heidt Construction Company, Inc., to be invalid and ordered the cancellation thereof. We reverse and set aside the judgment and amended judgment of the. trial court insofar as it declared invalid and ordered cancelled the lien filed by Hosea Johnson Building Materials, Inc., with the exception of the lien for the sum of $44.47 filed October 18, 1979.

We further reverse that portion of the trial court judgment which awarded attorney’s fees.

IT IS NOW ORDERED, ADJUDGED, and DECREED that the lien of Hosea Johnson Building Materials, Inc., in the full sum of $4,159.06 be and it is hereby decreed to be valid and the demands of plaintiff-ap-pellee, Linzay Downs, Inc., with respect to this lien are rejected.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED that defendant-appellant, Hosea Johnson Building Materials, Inc., be relieved of the obligation to pay any portion of the costs of the proceedings in the trial court, such costs to be paid in equal shares by the remaining defendants.

Plaintiff-appellee Linzay Downs, Inc., and defendant-appellant R. E. Heidt Construction Company, Inc., are assessed with the costs of this appeal, one-half to be paid by each.

AFFIRMED IN PART; REVERSED IN PART.

      . LSA-R.S. 9:4812 reads in pertinent part:
      “When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the owner, for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required, the owner or his authorized agent may file an affidavit that the work has been completed, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation, if done within sixty days after the date of the affidavit of completion or if no affidavit of completion is filed within sixty days after the date of the last delivery of all material upon the said property or the last furnishing of services or the last performance of labor upon the same, by the said furnisher of material or services or the said laborer, shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear....”


author: SWIFT, Judge.

text:
    Charles L. HELAIRE, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 8114.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.
    Writ Denied June 12, 1981.

      Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for plaintiff-appellant.
    Bolen & Erwin, Gregory S. Erwin, Alexandria, for defendants-appellees.
    Before CULPEPPER, FORET and SWIFT, JJ.
   SWIFT, Judge.

The plaintiff, Charles L. Helaire, has appealed an adverse judgment rendered following a special verdict of the jury as to his claims against the defendants, William D. Nelson, his employer, Dee Explorations, Inc., and their insurer, Liberty Mutual Insurance Company, for damages allegedly resulting from an automobile-truck accident.

At approximately 7:30 A.M. on November 11, 1978, a rainy and foggy day, plaintiff was proceeding in his automobile in a northerly direction on Old River Road just outside the city limits of Natchitoches, Louisiana. The road surface was a pebbly blacktop with no center line marking. He-laire’s son-in-law, Renerick Dwayne Lad-' kins, was following some distance behind him in another vehicle.

As plaintiff approached the southern end of a curve to his left a truck owned by Dee Exploration and driven by Nelson in the course of his employment was coming out of the curve from the north. The left front end of the truck collided with the left front end of the automobile.

Helaire contends that Nelson crossed the center of the highway and the impact occurred in plaintiff’s lane. Defendants contend the opposite, denying negligence on the part of Nelson but pleading contributory negligence of plaintiff in the alternative.

Four days before the trial date Liberty Mutual and an erroneously named defendant filed a motion for a continuance. It was denied, but the trial judge granted defendants “a continuance . .. until such time as the application for supervisory writs ... by the defendants herein is acted upon.” This court subsequently denied the application.

At the conclusion of the trial the case was submitted to the jury and it brought in the following verdict:

“RESPONSIVE VERDICTS
“1. We, the Jury, find that the cause of the accident was:
A. Negligent act of Charles L. Helaire
_Yes _No
B. Negligent act of William D. Nelson
_Yes ^ No
“If you find Charles L. Helaire was negligent and such negligence contributed to the accident your verdict will be:
“VERDICT FOR DEFENDANT
“If you- find William D. Nelson was negligent and such negligence caused the accident and resulted in injuries to Charles L. Helaire, and that Charles L. Helaire was not- guilty of contributory negligence that contributed to the accident and resultant injuries, your verdict shall be:
Verdict for the plaintiff and against the defendants in the sum of $_Dollars.”

A motion for a new trial was filed and denied.

The first of four specifications of error asserted by plaintiff-appellant is that the jury and trial court were manifestly in error because the record as a whole clearly supports a verdict for the plaintiff.

It is well settled in our jurisprudence, of course, that when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility furnishes a factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Expressed another way, we should not disturb a finding of fact of a jury or trial judge unless it is clearly wrong. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

Briefly stated, plaintiff’s principal complaint is that the jury disregarded his account and that of two other eyewitnesses as to the happening of the accident and accepted that of defendant Nelson and an expert in accident reconstruction that was not present when it occurred. This is true, but the credibility of plaintiff and his witnesses was seriously attacked and the question of whether or not they were successfully impeached was for the jury to determine.

It was obvious that u plaintiff not only exaggerated his injuries and the symptoms, but it appears that he testified falsely in several respects. There was a serious question as to whether his son-in-law, Mr. Lad-kins, was close enough behind plaintiff’s automobile to determine which side of the road he was on or whether Ladkins even saw the truck prior to the impact because of the misty foggy atmospheric condition at the time. Mrs. LaCaze, the other witness who was supposed to have seen the accident, was standing in her yard 200 feet away from the point of collision and it is extremely doubtful that she was able to see the two vehicles immediately before impact because of the mist and fog. Contrary to the other witnesses, she testified that the weather was beautiful and sunny. Also, neither one of the latter persons was designated as having witnessed the accident in the plaintiff’s answers to the defendants’ pretrial interrogatories. This court was informed by plaintiff’s counsel, however, that he did not discover Mrs. LaCaze until the morning of the trial.

The plaintiff and several of his witnesses testified that after the accident the two vehicles were on the eastern portion of the road with their wheels on this side in the ditch. However, Nelson and his boss said that both vehicles were then on the east side of the road but entirely on the paved portion thereof. The state trooper who investigated the accident first positioned the truck as having its front wheels in the ditch on the east side of the road. However, upon reference to his accident report it was found that both vehicles were entirely on the paved portion of the highway when he arrived at the scene. They were moved shortly thereafter, however, apparently to let traffic go by.

Joseph H. Barnwell, a retired professor emeritus in mechanical engineering from Louisiana Tech University and an experienced accident reconstruction expert, inspected the scene of the accident and photographs of the two vehicles, consulted the police report and examined Nelson’s version of what took place and concluded after his study that the impact occurred on the west or south bound side of the highway wherein the truck was proceeding.

In Billiot v. Bourg, 338 So.2d 1148 (La.1976), our supreme court said:

“When as here the evidence is conflicting, an appellate court should not disturb the trier of fact’s reasonable evaluation of one set of witnesses as credible, and its consequent rejection of the testimony of the opposing set of witnesses; nor should the reviewing court disturb the trier of fact’s reasonable factual inferences drawn from such testimony found by it to be credible.”

From our review of the record we conclude there was a sufficient basis for the jury’s evident finding of fact, based on its reasonable evaluation of credibility, that defendant Nelson’s truck was not on the plaintiff’s side of the highway when the collision occurred and therefore the cause of the accident was not a negligent act on Nelson’s part. Certainly, the jury was not clearly wrong in this regard.

In the argument in his brief plaintiff seems to have combined Specification of Errors Nos. II and III, that the jury’s verdict was inconsistent and unresponsive and constituted a finding of an unavoidable accident based on an erroneous charge by the court on that subject.

Wé find no fault with the court’s charge to the effect that an unavoidable accident is one not due to the negligence of either driver, but to events or circumstances beyond their control. However, it is difficult to see how it could be applied under the evidence presented in this case. Be that as it may, we are unconvinced that the submission of this instruction to the jury along with the appropriate general and special charges resulted in the jury’s having found that an unavoidable accident happened in this instance and amounted to reversible error.

Initially, we must point out that the record does not disclose that any objection was made to the court’s instructions as required by Article 1793 of the Louisiana Code of Civil Procedure to provide the basis of an assignment of error on appeal. Counsel for plaintiff states that he objected “vociferously” to the proposed instruction on an unavoidable accident at the jury charge conference held in chambers. We have no reason to doubt this. However, the law requires more. This court must act only on what is contained in the record. Therefore, to preserve the right to appeal an erroneous jury instruction a litigant not only must enter an objection in the record before the jury retires but he must also enter in the record the specific matter to which the objection is made and the grounds therefor. Gryder v. Travelers Insurance Company, 193 So.2d 532 (La.App. 1 Cir. 1966); Watts v. Aetna Casualty & Surety Company, 309 So.2d 402 (La.App. 2 Cir. 1975), writ refused, 313 So.2d 601 (La.1975).

Smith v. Tiblier, 374 So.2d 685 (La.App. 4 Cir. 1975), cited by plaintiff, is not to the contrary. The court simply held therein that LSA-C.C.P. Art. 1793 applies to jury instructions only and not to interrogatories submitted to the jury for a special verdict and under the circumstances presented the appellant’s failure to object to an erroneous jury interrogatory did not waive his right to assign such as an error on appeal. This court has ruled to the contrary in Williams v. City of Alexandria, 376 So. 367 (La.App. 3 Cir. 1979), writ denied, 378 So.2d 432 (La.1979).

There being no indication that the plaintiff in this case was deprived of an opportunity to do so, we conclude that his failure to enter into the record timely objections to the jury instruction complained of as well as the jury’s special verdict precludes him from raising questions in regard thereto on appeal. Nevertheless, we have considered his argument and are unable to agree that the jury found the accident involved herein was unavoidable.

The trial judge charged the jury in regard to negligence and contributory negligence and their effect as to the verdict. Included was a statement that in order for the plaintiff to recover he had to prove by a preponderance of the evidence that defendant Nelson was guilty of an act Of negligence that caused the accident. The jury was also told that the first question to be determined was whether or not such defendant was guilty of negligence that was the proximate cause of the accident. No detailed instructions were given as to the procedure to be followed in completing the verdict except that it was to be written by the foreman on the form provided and dated and signed by him. The record does not reflect any objections to this or to the form of the verdict.

Having been told by the court that to recover the plaintiff had to prove an act of negligence on the part of defendant Nelson, they obviously understood if they concluded that plaintiff had not done so the defendants were entitled to judgment. In other words, that ended their consideration of the case, because it made no difference whether or not the accident was caused by a negligent act of the plaintiff and therefore there was no reason for them to decide and answer that particular question. This being correct under the law, the trial judge accepted the jury’s special verdict and rendered judgment for the defendants accordingly. We agree with his actions and reject the plaintiff’s contention that the jury’s verdict was unresponsive as being based on a finding of an unavoidable accident.

In support of his motion for a new trial the plaintiff filed an affidavit from one of the jurors stating that he and nine other members of the jury found there was an unavoidable accident, neither Helaire nor Nelson being guilty of any act of negligence causing same. This court as well as our supreme court has held on a number of occasions that such an affidavit of a juror which purports to impeach the verdict is inadmissible and should not be considered. Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3 Cir. 1977), writ denied 354 So.2d 1050 (La.1978). We are unable to agree with the distinction submitted by plaintiff, that this affidavit does not attempt to impeach but merely explains the jury’s findings.

The plaintiff’s last specification of error is that he was prejudiced when the trial judge continued the trial so that the defendants could apply to this court for a review of his denial of their motion for a longer continuance on other grounds. The matter of granting a continuance in order to apply for writs to an appellate court is within the sound discretion of the trial judge. Vincent v. Grain Dealers Mutual Insurance Company, 134 So.2d 415 (La.App. 3 Cir. 1961); Aetna Casualty & Surety Company v. Braud, 327 So. 183 (La.App. 4 Cir. 1976). We cannot say that there was an abuse of discretion in this instance.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the appellant.

AFFIRMED.

      . That this question appeared second on the verdict form is of no significance.. St. Pierre v. General Am. Transp. Corp., 360 So.2d 595 (La.App. 4 Cir. 1978), writ denied, 362 So.2d 1386 (La.1978).


author: CULPEPPER, Judge. FORET, Judge, PER CURIAM.

text:
    W. J. BULLOCK, Plaintiff and Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant and Appellant.
    No. 8119.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendant-appellant.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff-appellee.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
    Before CULPEPPER, FORET and SWIFT, JJ.
   CULPEPPER, Judge.

This suit arises out of an automobile accident occurring in Natchitoches, Louisiana. Plaintiff was proceeding east on a favored thoroughfare in the City of Natchitoches when his car was struck broadside by a vehicle which had failed to stop at a stop sign. The driver of the vehicle, Luther Nelson, was not made a party defendant. Plaintiff sued Commercial Union Insurance Company, the liability insurer of the vehicle operated by Luther Nelson, and by supplemental and amending petition sued his own insurer, Southern Farm Bureau Casualty Insurance Company (Southern Farm Bureau) under the uninsured motorist provision of the policy. Southern Farm Bureau brought a third party demand against the driver of the vehicle, Luther Nelson, seeking indemnification should it be cast in judgment.

Prior to trial, Commercial Union, Nelson’s liability insurer, settled with plaintiff for $5,556. The trial court found Nelson’s negligence to be the sole cause of the accident. Plaintiff was awarded $30,000 in general damages and $6,040.18 in special damages against the defendant, Southern Farm Bureau, uninsured motorist insurer of plaintiff’s vehicle. Southern Farm Bureau’s third party demand against Luther Nelson was dismissed. From this judgment, Southern Farm Bureau appeals.

On appeal, Southern Farm Bureau does not question the finding that Nelson’s negligence was the sole cause of the accident. The issues raised by Southern Farm are: (1)Did the trial court err in finding that the driver, Luther Nelson, was an uninsured motorist? (2) In the alternative, were the damages awarded excessive?

Southern Farm Bureau’s principal argument is that plaintiff failed to prove the offending driver was either uninsured or underinsured at the time of the accident under the provisions of LSA-R.S. 22:1406 D(2)(b).

In an uninsured motorist claim, plaintiff has the burden of proof that the owner or operator of the vehicle was uninsured or underinsured at the time of the accident. Prima facie proof of a driver’s uninsured motorist status may be established by the introduction of sworn notarized affidavits or other documents as provided by LSA-R.S. 22:1406 D(6). No such affidavits or documents were filed in the present case.

Proof may also be sustained by other evidence showing that the offending driver was uninsured. Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972); Launey v. Thomas, 379 So.2d 27 (La.App. 3rd Cir. 1979); writ refused, 381 So.2d 1233 (La.1980); Beck v. Allstate Insurance Co., 359 So.2d 1327 (La.App. 4th Cir. 1978). During the trial, Luther Nelson, the offending driver, testified he did not have any automobile liability insurance in effect at the time of the accident on December 14,1978, and that actually he had not carried such insurance for four or five years. He testified further that at the time of the accident he was driving an automobile owned by his brother, Carrie Nelson, and that Carrie Nelson did have automobile liability insurance on the vehicle involved in the collision. However, the name of this liability insurer or the extent of coverage under the policy is not shown by any evidence in the case.

As stated above, plaintiff originally filed this suit against Commercial Union Insurance Company, alleging that it was the liability insurer of the offending driver at the time of the accident. Commercial Union filed exceptions and an answer to which it attached copies of its liability insurance policy, and it admits in these pleadings that its liability coverage is the sum of $5,000 per person. However, as stated above, Commercial Union settled with the plaintiff prior to trial for the sum of $5,556, and this suit was dismissed as against Commercial Union. The Commercial Union policy is in the record, but it was never introduced into evidence by stipulation or otherwise.

Since plaintiff has failed to sustain his burden of proving that Luther Nelson, the offending driver, was either uninsured or underinsured at the time of the accident, the judgment of the trial court against Southern Farm Bureau Casualty Insurance Company, as excess insurer under the uninsured motorist provisions of its policy, must be reversed.

During oral arguments in our court, plaintiff was given additional time after submission of the case within which to take any action he desired in an attempt to furnish proof that the offending driver was uninsured or underinsured. Pursuant to this, plaintiff has filed a pleading entitled “Motion to Supplement Record”. He prays for an order that the record be supplemented by admitting into evidence in this Court of Appeal the policy of liability insurance issued to Carrie Nelson by Commercial Union Insurance Company, said policy having limits of $5,000 per person and $10,000 per accident. This motion must be denied.

LSA-C.C.P. Article 2132 permits the correction of the record, even after the record is transmitted to the appellate court, by stipulation of the parties, by the trial court or by order of the appellate court. However, this permits the correction of evidence, or the furnishing of omitted evidence, which was actually introduced at the trial. It does not permit the introduction of new evidence after the transcript of appeal is filed in the appellate court. The Court of Appeal has only appellate jurisdiction and supervisory jurisdiction over cases in which an appeal would lie to it. LSA-La.Const. 1974, Article 5, Section 10. The Court of Appeal has no jurisdiction to receive new evidence. See Barber v. Testa, 331 So.2d 139 (La.App. 3rd Cir. 1976).

Although we have concluded the judgment appealed must be reversed, we find this case is appropriate for the exercise of our discretion to remand the case in the interest of justice, LSA-C.C.P. Article 2164. We will remand for the limited purpose of permitting plaintiff to attempt to prove that the offending driver, Luther Nelson, was either uninsured or underinsured at the time of the accident. If plaintiff successfully meets this burden of proof, the trial judge may render any appropriate judgment.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that this case be remanded to the district court for the limited purpose of permitting the plaintiff to prove that the offending driver, Luther Nelson, was either uninsured or underinsured at the time of the accident, following which the district court may enter any appropriate judgment in accordance with law and the views expressed herein. All costs of this appeal are assessed against the plaintiff-appellee. Assessment of costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.

FORET, J., concurs in result with written reasons.

FORET, Judge,

concurring.

The main issue discussed by the majority is whether or not plaintiff proved the unde-rinsured status of the tortfeasor driver, to such a degree that plaintiff can recover under the underinsured motorists provisions of his own insurance policy, which was issued by Southern Farm Bureau. The trial court rendered judgment in favor of the plaintiff.

On appeal, and only on appeal, Farm Bureau urges that plaintiff did not prove the underinsured status of the offending driver. The vehicle driven by the tort-feasor driver was covered by a 5/10 policy issued by Commercial Union Insurance Company. Commercial Union, however, settled with the plaintiff, and when the matter came to trial, was no longer a party to the suit. However, prior to the settlement by Commercial Union, Commercial Union’s insurance policy was filed in the record in response to a court order obtained by the plaintiff. The policy is properly in the record before us, although the record does not show that plaintiff specifically moved to mark, identify, and introduce into evidence Commercial Union’s insurance policy. Further, I might mention that in a peremptory exception filed by Commercial Union, it admits that it had issued a policy of public liability insurance, with limits of 5/10, covering the tortfeasor vehicle.

The majority proposes to reverse the trial court judgment and remand the case to the trial court solely to allow the plaintiff to properly introduce the insurance policy. I do not agree that the case should be reversed and remanded. I believe that for this Court under C.C.P. Articles 2132 and 2164, not to take this policy into consideration, but rather to remand the matter to the trial court for a mere perfunctory introduction thereof into the record, is rather super-technical. I believe that under Articles 2132 and 2164, we can and should consider this insurance policy and decide the case on the merits.

However, a dissent herein would cause a five-judge reargument, which would entail redocketing for argument, possibly a rewriting of the decision, possibility of an application for rehearing, the possible granting of same, application for writs, etc., all of which may very well require more additional delay than simply remanding to the trial court. Further, it is quite likely that the matter will be terminated finally at the trial level. In short, there may be as much delay in one course of action as with the other. Accordingly, it appears that no prejudice will come to the plaintiff as a result of the remand. Accordingly, for practical reasons, I can concur in the result arrived at by the majority, although I cannot agree, in theory, under our scope of appellate review.

ON APPLICATION FOR REHEARING

PER CURIAM.

In an application, for rehearing, the defendant insurer points out we made a typographical error in our original opinion. We stated the district judge awarded “$30,000” in general damages. Actually, the award by the district court for general damages was “$20,000”. We correct our original opinion accordingly. Otherwise, the application for rehearing is denied.