text:
    STATE of Louisiana v. Elsie M. JONES.
    No. 81-K-0341.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Elsie M. Jones, applying for writs of certiorari, prohibition and mandamus. Parish of Evangeline. No. 24176.

Granted.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Robert J. RODRIGUE.
    No. 81-K-0370.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Robert J. Rodrigue, applying for remedial writs. Parish of Terrebonne. Nos. 92627 and 92628.

Writ granted. Ruling of trial judge set aside. Defendant is indigent. He is entitled to copies of transcript without cost for purpose of seeking relief in this Court.


text:
    Gloriadine B. GLADSTONE v. AMERICAN AUTOMOBILE ASSOCIATION and the State of Louisiana, Office of Employment Security.
    No. 81-C-0395.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re American Automobile Association, Inc., applying for remedial writs. Parish of Orleans. No. 80-3386.

Granted. The ruling of the Court of Appeal is set aside; remanded to Court of Appeal for ruling on questions of law presented.


text:
    STATE of Louisiana ex rel. Archie C. GUSS v. Warden Frank BLACKBURN, Louisiana State Penitentiary, and Honorable Alvin V. Oser, Judge, Criminal District Court, Section J.
    No. 81-KH-0171.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Archie C. Guss, applying for writ of mandamus. Parish of Orleans. Nos. 250-911 and 247-348.

Motion to dismiss granted.


text:
    STATE of Louisiana ex rel. Richard A. PASS v. STATE of Louisiana.
    No. 67060.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Richard A. Pass, applying for remedial writs. Parish of Orleans. Nos. 259-318 and 256-975.

Denied.


text:
    STATE of Louisiana ex rel. Frank GLODE v. Frank C. BLACKBURN, Warden et al.
    No. 80-KH-1644.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Frank Glode, applying for remedial writ. Parish of St. Bernard. No. 34-634 C.

Denied.


text:
    STATE of Louisiana ex rel. Craig E. WHITT v. STATE of Louisiana.
    No. 80-KH-2057.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Craig E. Whitt, applying for.remedial writs. Parish of Orleans. No. 269-398.

Denied.

DIXON, C. J., would grant the writ.


text:
    In re Leslie Frank HINTON Applying for Adoption of Sarah Elizabeth Parker and Jonathan Timothy Parker.
    No. 81-C-0043.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Leslie Frank Hinton, reconsideration of denied writ of February 6, 1981. Parish of Lincoln. No. 14322.

Not considered. Rule 9, § 6.

LEMMON, J., concurs and is of the opinion that application should be directed to district court.


text:
    STATE of Louisiana ex rel. Craig E. WHITT v. Charles C. FOTI.
    No. 80-KH-2133.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Craig E. Whitt, applying for remedial writ. Parish of Orleans. No. 269-398.

Writ denied. Relator must first apply for relief in district court.


text:
    STATE of Louisiana ex rel. Lonnie COOLEY v. Roland R. MITCHELL, Sheriff.
    No. 80-KH-2395.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Lonnie Cooley, applying for writ of mandamus. Parish of Madison. No. 80-310.

Denied.


text:
    STATE of Louisiana ex rel. Arthur JOHNSON v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2697.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Arthur Johnson, applying for remedial writs and memorandum of authorities. Parish of Jefferson. No. 74-690.

Denied. Relator’s contention is without merit because he is not currently in custody as a multiple offender.


text:
    Homer P. COFFIN v. Herman LaBORDE.
    No. 81-C-0384.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Herman LaBorde, applying for cer-tiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 393 So.2d 915.

Denied.

MARCUS, J., would grant. See La.Civ. Code Arts. 2531 and 2544.

LEMMON, J., would grant the writ.


text:
    In re Leslie Frank HINTON Applying for Adoption of Sarah Elizabeth Parker and Jonathan Timothy Parker.
    No. 81-C-6043.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Leslie Frank Hinton, reconsideration of denied writ of February 6, 1981. Parish of Lincoln. 390 So.2d 972.

Not considered. Rule 9, § 6.

LEMMON, J., concurs and is of the opinion that application should be directed to district court.


text:
    C. Edward KARST v. Joe E. FRYAR.
    No. 81-C-0011.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re C. Edward Karst, applying for reconsideration of denied writ of February 6, 1981, Court of Appeal, Third Circuit. Rap-ides Parish. 390 So.2d 238.

Not considered. See Rule 9, § 6.


text:
    Succession of Mary Maude Greenlee OSTERLAND v. Mary O. GATES et ux.
    No. 81-C-0301.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Stanley W. Gates and Mary 0. Gates, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Allen. 391 So.2d 855.

Granted.


text:
    Succession of Mary Maude Greenlee OSTERLAND v. Mary O. GATES et vir.
    No. 81-C-0309.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Alma O. Fey, Administratrix of the succession of Mary Maude Greenlee Oster-land, applying for writ of certiorari, or review, to the Court of Appeals, Third Circuit. Parish of Allen. 391 So.2d 855.

Granted.


text:
    Jerry L. KERR v. JEFFERSON TRUCK LINES, and Insurance Company of North America.
    No. 80-C-2927.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Jerry L. Kerr, applying for writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 389 So.2d 729.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Michael M. WAHLDER v. TIGER STOP, INC.
    No. 81-C-0310.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Michael M. Wahlder, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 391 So.2d 535.

Writ denied.

WATSON, J., would grant the writ.


text:
    Charles BROWN v. Hilda BOUDREAUX, Indiv. and Karen Boudreaux a/k/a Karen Boudreaux Through Her Legal Guardian, Hilda Boudreaux.
    No. 81-C-0390.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Charles Brown, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 393 So.2d 935.

Denied.


text:
    Joe MAGGIO, Jr. v. ST. FRANCIS MEDICAL CENTER, INC. et al.
    No. 81-C-0391.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re St. Francis Medical Center, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 391 So.2d 948.

Denied.


text:
    Carolyn E. DiLEO v. Henry WHITE, a/k/a Henry White, Jr., Andrew J. Roth, Liberty Mutual Insurance Company, American Fidelity Fire Insurance Company, and State Farm Mutual Automobile Insurance Company. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Henry WHITE, Liberty Mutual Insurance Company, Andrew Roth and American Fidelity Fire Insurance Co. Jimmy DEAL and Debbie Deal, His Wife v. Andrew ROTH et al. Larry NELSON v. Andrew J. ROTH, Henry White, American Fidelity Insurance Company, Liberty Mutual Insurance Company, Carolyn DiLeo, and State Farm Mutual Automobile Insurance Company.
    No. 81-C-0396.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Andrew Roth and American Fidelity Fire Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 391 So.2d 1374.

Denied.


text:
    STATE of Louisiana ex rel. Matthew DIXON v. Warden Hayden J. DEES, Dixon Correctional Institute.
    No. 80-KH-2690.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Matthew Dixon, applying for writ of certiorari. Parish of Orleans. No. 271-692.

Denied.


author: STOKER, Judge.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appellee, v. SANDERS DRILLING & WORKOVER COMPANY, INC., Defendant-Appellant.
    No. 8091.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.

      Landry, Watkins & Bonin, Alfred S. Landry, New Iberia, for defendant-appellant.
    Caffery, Oubre, Gibbens & Blackwell, Jerry A. Oubre, New Iberia, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   STOKER, Judge.

This is a suit to collect additional insurance premiums under policies of insurance issued by United States Fidelity and Guaranty Company (USF&G) to the defendant Sanders Drilling and Workover Company, Inc. (Sanders). Trial was by a jury which found in favor of USF&G and against Sanders. The judgment was for the sum of $32,497 plus interest at the rate of 7% per annum from date of judicial demand which was July 21, 1976, until paid and for all costs. Sanders appealed from the judgment.

USF&G issued the policies under the retrospective premium plan, sometimes referred to as a “retro-risk” policy plan. Under such a plan the insured pays a premium based upon what an ordinary standard premium would be for a business risk of that type and size. At fixed intervals the records of the insured are audited to confirm that the amount of the insured’s payroll and other data conforms to the periodic reports submitted by the insured. At the same time the insurer keeps records reflecting the sums expended by the insured during each of the policy periods. Under the retrospective premium plan, periodic audits are made to determine what the insured’s actual premium would be based upon experience under the plan.

Under the plan an insured initially pays a premium estimated to be what experience would require the insured to pay. However, actual experience will indicate that the risks encountered were either greater or lesser than originally projected. Based upon the actual experience the insured will either pay additional premiums or receive a refund. If the insured has a “good” year in which the insurer pays less than anticipated during the period being audited, the insured will receive a refund for a certain portion of premiums previously paid. On the contrary, if the insured has a “bad” year and more claims are paid than anticipated on behalf of the insured, then the insured will be required to pay additional premiums to the insurer. A minimum and maximum are applied to this procedure. Under the minimum and maximum provision, regardless of how little is paid on claims, a minimum amount of premium will be owed during an audit period. On the other hand, if the insured has a very bad year and a large amount is paid by the insurer on behalf of the insured, there is a maximum amount of additional premiums which will be due and owing to the insurer.

In the first two adjustment periods, Sanders had “good” years and received refunds. The first refund was $32,841 and the second was $56,905. The third adjustment period, keyed into the date October 3, 1975, indicated that Sanders’ loss experience during the previous period was not as good as that of prior periods. On this third adjustment Sanders owed USF&G additional premiums of $30,068. A final adjustment as of August 18, 1976, indicated an additional premium of $2,429 owed by Sanders to USF&G. Thus a total of $32,496 was owed by defendant to plaintiff. This amount Sanders refused to pay. As a result USF&G filed the present suit to recover $32,496 with legal interest and costs.

Sanders refused to pay the additional premiums on the ground that USF&G had settled a very large claim against Sanders which USF&G should not have settled. Essentially, the issue in this case is whether or not USF&G should have settled the claim and whether or not it was settled at a reasonable figure.

Sanders questions the propriety of one settlement made by USF&G. This was settlement of a claim asserted in a suit entitled “Curtís D. Book v. Sanders Drilling and Workover Company, Inc.” which was Civil Action Number 74,299 on the docket of the United States District Court for the Eastern District of Louisiana. USF&G, as the insurer, undertook the defense of this case. USF&G engaged counsel. Initially this counsel thought the claim had little value and could be successfully defended. USF&G ultimately settled the case three days before trial by jury for a settlement figure of $54,000.

In defense of the present suit Sanders contends that the settlement made by USF&G with Curtis D. Book was unreasonable. Sanders maintains that the case should have been tried and not settled at all. Sanders takes the position that it had a right to approve the Book settlement, that it had not done so and no settlement could be made without its approval.

When USF&G sued Sanders for the additional premium, Sanders filed a reconven-tional demand seeking damages which it allegedly sustained as a result of the action taken by USF&G.

As noted above, the claim of USF&G against Sanders and the reconventional demand of Sanders against USF&G was tried before a jury in the State Court, the Sixteenth Judicial District Court for the Parish of Iberia. In effect, the merits of the claim of Curtis D. Book against Sanders Drilling and Workover Company, Inc., were tried in the jury case between USF&G and Sanders. The jury in the State court determined that the settlement was reasonable. On that basis judgment was rendered in favor of USF&G for the premiums it claimed from Sanders. This appeal is from the judgment entered on that verdict.

SPECIFICATIONS OF ERRORS

Sanders as the defendant-appellant has assigned various specifications of error and listed the issues. We agree with counsel for plaintiff-appellee that these can be summarized into three broad categories as follows:

1. Was the consent of Sanders to the Book settlement required?

2. Was the settlement with Curtis D. Book reasonable?

3. Did the trial court err with respect to the verdict form submitted to the jury and did it err in the jury charges given?

The actual specification of errors as listed in the brief on behalf of defendant-appellant are appended to this opinion as Appendix I.

FACTS

Curtis D. Book was hurt on a rig belonging to Sanders alleged to be located in the Gulf of Mexico. Curtis D. Book alleged in his petition that the accident occurred when he slipped on ice in a freezer. The defendant argued that the rig was not designed for and never worked in the Gulf of Mexico. Also, defendant took the position that the freezer in the galley of the rig was a common upright freezer which a man could not get into. Consequently, Book could not have fallen on ice in the freezer. Based on such factors and others, the attorney representing USF&G as insurer of Sanders initially took the position that the claim should be defended and was not a dangerous case. As the case developed, it took a different posture.

To begin with, the petition filed in the federal suit was filed by Book’s counsel who was apparently not clear as to some of the facts. It appears that the employer’ first report of the injury prepared by Sanders dated October 16, 1974, described the accident as follows:

“Employee (Cook) was getting meat from freezer, small pieces of frost from freezer fell to floor, employee was handling packages of meat, slipped on damp-(frost) floor.”

It appears that Book was actually working as a cook at the time on Sanders’ rig at Bastían Bay near Empire, Louisiana. There seems to be little question but that Book actually slipped on frost that fell on the floor from the freezer. As his left foot slipped out from under him, he hit his knee on the floor, his head on the stove, and a box of meat fell onto his genital area.

Much of defendant-appellant’s argument centered around the fact that within days before going on the rig Curtis D. Book was advised by his physician that he required surgery for an old condition of the spine. This spinal area was injured in the fall. Therefore, Sanders takes the position that the back condition was already there and was not affected by the fall. Unquestionably Book was injured in his genital area. The jury in this case heard all of the medical evidence adduced for the federal trial. Preparations of defense of the case presented issues of whether or not the accident actually occurred and whether or not Book sustained injury. However, the progress of discovery disclosed witnesses whose testimony indicated that Book would unquestionably make a good case for the establishment of an accident. Also, the medical testimony developed a substantial case in plaintiff’s favor.

As a result of all of the foregoing USF&G, feeling that it was faced with a dangerous case, elected to make a settlement.

In the conduct of the case all communications between the attorney engaged by USF&G and Sanders continued to indicate that the case was not one which was either valid or of a serious nature. Sanders contends that it was never advised that the case was going to be settled and that its permission to settle was not sought or given. Sanders also maintains it instructed USF&G not to settle the case.

WAS THE CONSENT OF SANDERS TO THE BOOK SETTLEMENT REQUIRED?

Sanders’ first contention in this phase of the appeal is that under the contract with USF&G the latter was obligated to consult with Sanders and not to make any settlements without its approval. We fail to find that the contract grants any such right to Sanders. Nevertheless, Sanders contends that USF&G should not have made any settlement at all and should have defended the case.

Sanders cites no authority for its contention and points to no provisions of the policies in question which establish its right to control settlements. Sanders asserts that the only Louisiana case it has been able to find involving a policy of retrospective insurance is Insurance Company of North America v. Binnings Construction Co., Inc., 288 So.2d 359 (La.App. 4th Cir. 1974). Defendant-appellant does not build its case on this authority and it gives Sanders no comfort.

Absent authority for Sanders’ position that it has a right to control settlements, Sanders urges that the situation is akin to that where a liability insurer owes a duty not to unreasonably refuse to settle within policy limits and not to expose the insured to an excess judgment. Under defendant-appellant’s analysis the premium arrangement resulted in USF&G actually settling with the “insured’s money”. See the Binning case cited above for a judicial elaboration of this thesis. In brief Sanders asserts:

“There are many cases which hold that an insurer will be held to have acted in bad faith if a settlement agreement is reached which exceeds the policy limit and the insured was not informed of such offer prior to the settlement. Ward v. State Farm Mutual Automobile Insurance Company, 359 [539] F.2d 1044 (CA 5 1976); Roberie v. Southern Farm Bureau Casualty Insurance Company, 250 La. 105, 194 So.2d 713 (Supreme Court 1969); Wooten v. Central Mutual Insurance Company, 166 So.2d 747 ([La.App.] CA 3 1964); Ging v. American Liberty Insurance Company, 423 F.2d 115 (CA 5 1970).”

Assuming that the unique scheme established under retrospective premium adjustment policies does put the insurer in a position of having a conflict of interest and that the insurer owes a duty to act to the insured’s advantage, the ultimate inquiry becomes whether or not the settlement was in fact reasonable. This was the test applied in Binning. As in Binning we find here that the evidence does not establish an agreement, even as an addendum to the contract, orally or otherwise, to consult with Sanders prior to making a settlement. We certainly find no power granted to Sanders to veto a proposed settlement as a right to force the insurer to go to trial rather than settle. Having reached these conclusions, we proceed to consider whether the settlement made was reasonable under the circumstances.

WAS THE SETTLEMENT WITH CURTIS D. BOOK REASONABLE?

Defendant-appellant urges that any settlement was unreasonable considering the appraisal which counsel for USF&G made of the case. In this respect Sanders fails to recognize that the elements and circumstances of the case known to the attorney defending Book’s suit began to change in Book’s favor as discovery and trial preparations progressed. Sanders contends that the attorney’s opinion never changed. In brief counsel for Sanders asserts “Sanders objected to paying the money because USF&G capitulated to what was a fraudulent claim.” The issue is not what the attorney basically believed to be the actual facts but rather what facts were likely to be accepted on trial of the case by the trier of fact. This involves application of trial experience in estimating the likely outcome of a trial and balancing the value of a given compromise settlement against the uncertain risk of trial which might result in a higher award than settlement, especially where liability just prior to trial had begun to appear probable. There is ample evidence to support the conclusion that the position for the defense of Book’s claim had deteriorated by trial time to such an extent that it was prudent to effect a reasonable settlement.

On the basic question of whether or not the facts as they developed justified settlement in the amount of $54,000 justification was adequately established. The jury, in this case hearing all of the medical evidence and all of the deposition testimony of the witnesses to the accident and of those parties to whom the accident was reported, concluded that a settlement of $54,000 was reasonable. We are unable to conclude that the jury was clearly wrong based on the evidence presented to them.

We have not concerned ourselves in this case as did the Court of Appeal for the Fourth Circuit in Binning, with who bears the burden of proof on the issue of reasonableness or with the question of the shifting of the burden of proof. USF&G carried the burden of proof to our satisfaction. For that reason we do not concern ourselves with the question of who bore the initial burden or questions of - shifting of the burden.

DID THE TRIAL COURT ERR WITH RESPECT TO THE VERDICT FORMS SUBMITTED TO THE JURY AND IN THE JURY CHARGES GIVEN?

Consistent with its claim that no settlement at any price should have been made, Sanders contends that the trial court erred in the form of jury verdict submitted to the jury.

After trial on the merits before a jury, the following special jury verdict form was submitted to the jury and was answered as indicated:

“SPECIAL JURY VERDICT
1. Was the settlement made by the United States Fidelity and Guaranty Company with Curtis Book reasonable?
X
YES
NO
If the answer to the foregoing question is yes, you may stop there. If your answer is no, then answer only one of the following:
a. What amount would have been reasonable? $_
b. There should have been no settlement: _
July 17,1980 /s/ Ronald C. Bienvenu
JURY FOREMAN”

In brief on behalf of Sanders the following contention is made:

“By handling the special jury verdict as it did, the court isolated the question for the jury as a question of quantum, thereby misleading the jury into thinking that only the nature and seriousness of the plaintiff’s injuries were involved, whereas there was also involved a consideration of whether or not there should have been a settlement in view of doubts as to liability and a consideration of whether or not U.S.F.&G. fulfilled its duty to Sanders by making a settlement in disregard of the instructions by Sanders not to settle.
“In order to be clear, the special jury verdict should have read as follows:
(1) Should United States Fidelity and Guaranty Company have made a settlement with Curtis Book?
Yes_
No _
If the answer to the foregoing question is no, you may stop there. If the answer is yes, then answer the following:
(2) Was the amount of the settlement reasonable?
Yes_
No _
If the answer to the foregoing question is yes, you may stop there. If your answer is no, then answer the following:
(3) What amount would have been reasonable?
$_
“The special jury verdict as prepared by the court, by inviting the jury to give consideration only to the dollar level of the settlement and allowing it to pretermit the question of whether or not there should have been a settlement at all, was misleading to the jury and prejudicial to the defendant.”

We believe defendant-appellant’s argument in this regard is casuistic, or at least strained. Sanders urges that it was improper not to ask as the opening question whether or not any settlement at all should have been made. We fail to see that this argument has substance. Considering the special jury verdict form submitted, we do not see how the jury could have failed to have understood what it was called upon to decide.

The first question in the form submitted consisting of “Was the settlement made by the United States Fidelity and Guaranty Company with Curtis Book reasonable?” would obviously be answered “no” if the jury had been of the opinion that no settlement at all should have been made. Moreover, by reading the question on the special jury verdict form in its entirety, it was made clear to the jury that, if they thought no settlement should have been made, the form was specifically tailored so that such a verdict could be rendered. Under these circumstances, the jury would have checked the “no” blank under the first question and would have checked “b” under the second question.

For the reasons given we do not believe that the trial court erred in providing the jury with the particular special verdict form which it did.

Defendant-appellant claims that the trial court erred in failing to give its requested jury charges numbered 2, 3, and 4.

Defendant’s requested jury charge number 2 is as follows:

“The insurance policy in this case having been prepared by the plaintiff, United States Fidelity and Guaranty Company, all ambiguities should be construed against it.
“Doubtful language in the policy should be construed in favor of Sanders Drilling & Workover Company, Inc.”

On the basis of the record we do not feel that the requested charge number 2 was relevant. Defendant-appellant has not seriously argued that the policy as written proved any of the rights for which it contends. It has not indicated any ambiguities in the policy in that regard.

Requested jury charge number 3 reads as follows:

“United States Fidelity and Guaranty Company ultimately bears the burden of proving the unreasonableness of the settlements made by it in this case.”

In view of the fact that USF&G did carry the burden of proof in this case, we find that there was no error in the failure of the trial court to this requested jury charge.

Sanders’ requested jury charge number 4 has reference to relief sought in its reconventional demand in which it stated that it was “entitled to reformation to the policies issued by United States Fidelity and Guaranty Company to respondent to set down the understanding and agreement which respondent had with plaintiff’s agent, to the effect plaintiff would consult with and keep respondent informed with all phases of its insurance program and would not make any payments or settlements to claimants without respondents prior written approval.” Defendant-appellant’s requested jury charge number 4 reads as follows:

“If an insurance agent knows of the policyholder’s true intention as to coverage desired, insurance company is bound by the agent’s knowledge, and a policy erroneously issued will be reformed so as to conform to the original intention.
“If the insurance policy issued by United States Fidelity and Guaranty Company to Sanders Drilling and Workover Company, Inc. in this case did not truly state the agreement of Sanders Drilling and Workover Company, Inc. with the agents representing United States Fidelity and Guaranty Company, then the policy should be reformed to show the true intent of the parties.
“If you find that the policy should be reformed and under the policy as reformed United States Fidelity and Guaranty Company should have consulted Sanders Drilling and Workover Company, Inc. and obtained its authorization and approval before paying money under the policy to Curtis D. Book, then there can be no recovery in this case.”

In view of the state of the evidence the trial judge was correct in refusing to give this instruction. A charge, even if it is a correct statement of the law, must be based on evidence adduced in the case in order for the jury to make the conclusion permitted in the charge. Guerra v. W. J. Young Construction Co., Inc., 165 So.2d 882 (La.App. 4th Cir. 1964) writ refused, 167 So.2d 676 (La.1964); Jackson v. West Jefferson General Hospital, 245 So.2d 724 (La. App. 4th Cir. 1971); Prejean v. Hanover Insurance Company, 233 So.2d 606 (La.App. 3rd Cir. 1970), writ refused, 236 So.2d 32 (La.1970); Barrois v. Service Drayage Company, 250 So.2d 135 (La.App. 4th Cir. 1971), application denied, 253 So.2d 66 (La. 1971).

No evidence in support of the alternative reconventional demand for reformation was adduced which established an agreement to give Sanders control over settlements. The policies gave that control to the insurer, USF&G. Larry Sanders, who examined the policies for Sanders, testified merely that his company was to be “consulted” concerning handling of claims and specifically denied that there was any agreement that his company would have control over settlements. Tr. 1088 and 1089, Vol. 7. Tommy Sanders testified that USF&G did not obtain Sanders’ consent to settle, but he did not testify there was an agreement requiring such a consent. Tr. 1174, Vol. 8.

Under the circumstances the trial court did not commit error in failing to give Sanders’ requested jury charge number 4.

For the foregoing reasons the judgment of the trial court is affirmed. The costs of this appeal shall be paid by defendant-appellant.

AFFIRMED.

APPENDIX I

“SPECIFICATION OF ERROR

“Defendant-Appellant, Sanders Drilling and Company, Inc., contends that:

“The judgment is contrary to the law and the evidence, the insurer having failed to consider the substantial duty owed by an insurer to its insured in a case in which the insurer was dealing only with the insured’s money, the insurance company attorney believed that the claim was a fraud, and the insurer ignored its insured’s specific request not to settle the case.

“The judgment is contrary to the law and the evidence, the settlement made by United States Fidelity and Guaranty Company with Curtis Book being unreasonable in the light of the facts known to the insurer, United States Fidelity and Guaranty Company.

“The trial court erred in failing to give instructions requested by Sanders Drilling and Workover Company, Inc. concerning the construction against United States Fidelity and Guaranty Company of ambiguities and doubtful language in the policy of insurance.

“The trial court erred in failing to give requested jury charge number 3 and to place the burden of proof of reasonableness on the insurer, substituting instead a statement that there, is a presumption of reasonableness in favor of an insurer.

“The trial court erred in failing to give requested jury charge number 4 of Sanders Drilling and Workover Company, Inc. regarding the reformation of the policy of insurance issued by United States Fidelity and Guaranty Company.

“The trial court erred in its preparation of the special jury verdict, the verdict being misleading and inviting the jury to comment on the reasonableness of the settlement, rather than to consider first whether or not there should have been a settlement at all.”

      . The tenor of Sanders’ brief and oral argument is that aside from the right of control or veto of settlement with claimants there was an obligation owed by USF&G to “consult” with Sanders before making settlements with claimants. Definitely Sanders had no veto authority. While we doubt that a preponderance of evidence establishes a duty to consult, we are not certain as to what consultation would comprehend. Each of the policies contains a provision stating that “the company [USF&G] may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.” The evidence shows that Sanders was kept fairly well informed and even advised that settlement was contemplated. Since Sanders had no veto power and could not have blocked the settlement, and since the evidence is cloudy as to whether the right to consultation existed, we will not risk expressing dicta by attempting to define consultation. Defendant-appellant seems to feel that its rights were violated because it was not consulted. Assuming Sanders’ rights were violated in this respect, we are not sure just what injury or damage would arise from such a violation.

      . The vote was 9 to 3 in favor of USF&G, and judgment was rendered in accordance with the verdict on July 18, 1980, in favor of USF&G and against Sanders.

      . We express no opinion as to whether the requested charge represents a correct statement of law.


author: MARVIN, Judge.

text:
    Joseph D. REED, Plaintiff-Appellee, v. Frank W. LEWING, Defendant-Appellant.
    No. 14469.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      Touchstone & Wilson by David M. Touchstone, Shreveport, for defendant-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The appeal in this workers’ compensation case concerns the legal relationship and resulting liability under the law between a homeowner (Mrs. Lehr), who was constructing a residence, her perhaps agent, contractor, or overseer (Lewing), who was a house-builder and, for his services, was paid a percentage of the cost of labor and materials used in the construction, and the claimant-carpenter (Reed), an employee of another carpenter (Hammons), who sustained a football-type injury to his knee when he strained it while working on the roof of the house.

Reed sued Lewing, who made Mrs. Lehr a third-party defendant in an incidental demand. This demand was dismissed by summary judgment on Mrs. Lehr’s motion establishing that she was unemployed and was not engaged in the trade, business, or occupation of building homes, but was merely building for herself. LRS 23:1061.

The trial court rendered judgment for the claimant under the specific loss provision of the statute for 10 percent permanent partial loss of use of the left leg (LRS 23:1221(4)(hXo), plus medical expenses of $2,520, subject to credit for any amounts paid during the time of his total disability before and after knee surgery. The record indicates that nothing was paid claimant under the workers’ compensation law.

The trial court found that Mrs. Lehr and Lewing had joint control over the hiring and firing of workmen on the house and cast Lewing in judgment for only one-half of the amount because Reed had earlier settled and compromised his claims against Mrs. Lehr.

Lewing appealed, contending he was not Reed’s employer. Reed- answered the appeal, contending that Lewing should be cast for a greater amount of compensation without considering the one-half contribution factor, as well as for penalties and attorney fees because of Lewing’s arbitrary and capricious refusal to pay benefits and medical expenses. The trial court’s reasons for judgment and the judgment itself are silent with respect to claimant’s demands for penalties and attorney’s fees. Silence in this respect may be deemed to have been a rejection of this demand. See Creole Corp. v. McMillan, 379 So.2d 805 (La.App. 4th Cir. 1980) and Stringer v. Todd, 305 So.2d 696 (La.App. 4th Cir. 1974).

Lewing, unlike the son of the homeowner in Pratt v. Hartford Fire Ins. Co., 10 So.2d 252 (La.App. 2d Cir. 1942), is in the business of building homes, and in the front of Mrs. Lehr’s house, he placed his sign, “Custom Built by Frank Lewing”. Lewing’s relationship with Mrs. Lehr began when he contracted with her to build the foundation for the home of approximately 7,000 sq. ft. at a fixed price for labor and materials. Thereafter, he agreed to help her complete the construction for a percentage of the cost of labor and materials. Mrs. Lehr did not have detailed plans and specifications for the home and was necessarily involved in the day-to-day details of and changes in the work. Lewing ordered or obtained the material for the job and selected most of the workers, discussed with them their respective wage scale, kept books, and determined their wages. Mrs. Lehr paid the workmen through Lewing, usually by giving him a sufficient amount of cash for that purpose.

Mrs. Lehr and Lewing went to Hammons, who had carpenters working on another residence in the area. The claimant Reed was one of Hammons’ carpenters who came with Hammons to the Lehr job. Mrs. Lehr apparently discussed a pay scale with Ham-mons in the presence of Lewing, but Lew-ing himself discussed with Reed his pay scale and Lewing directed Reed’s work on the job. Workmen who testified stated that they considered Lewing as “directing” the job. Mrs. Lehr approved the hiring of most of the workmen, and also directed them on the job, making changes in the construction as it progressed. On at least one occasion she discussed with Lewing the firing of a worker whose work proved unsatisfactory. Lewing did the actual firing.

Under these circumstances, the trial court was not wrong in concluding that Lewing exercised sufficient [joint] control to be deemed an employer under the workers’ compensation law. § 1061. Although Lewing was not paid a fixed price and did not exercise exclusive control over the workmen, he was engaged in his business, he was paid by a fixed formula or percentage, he did exercise some control over the workmen, their hiring and firing, and even though with Mrs. Lehr’s money, he determined and “paid” wages to the workmen. See Malone-Johnson, “Workmen’s Compensation”, 2d Ed., La. Civil Law Treatise, Vol. 13, § 52; Franklin v. Haughton Timber Co., 377 So.2d 400 (La.App. 2d Cir. 1979); Alexander v. J. E. Hixson & Sons Funeral Home, 44 So.2d 487 (La.App. 1st Cir. 1950).

Mrs. Lehr, unlike Lewing, was not building the house as a part of her trade, business, or occupation. § 1035, § 1061. Notwithstanding the trial court’s finding of joint control by Lewing and Mrs. Lehr over the job, she is not liable to the claimant under the workers’ compensation law since the building of the home was not a part of her trade, business or occupation. See § 1035; Malone-Johnson, supra, § 94; Fonseca v. Marlin Marine Corporation, fn.3 (La.1981). Whatever may have been her liability to the claimant, it is well and long settled that her liability is not under the workers’ compensation law and is not a solidary liability with Lewing. Mrs. Lehr’s settlement with the claimant does not inure to the benefit of or affect the workers’ compensation liability of Lewing to the claimant. See §§ 1061, 1063, 1031, 1044; CC 2103; CCP 1111-1116. Her settlement with claimant did not have to conform to a lump sum settlement under the workers’ compensation law to be otherwise effective. The trial court did not err in granting summary judgment dismissing the third party demand against Mrs. Lehr.

Claimant suffered a “bucket handle” tear of the medial meniscus of the left knee in March 1978. When the injury occurred claimant was also employed (as he had been for the past 11 years) at Western Electric. Shortly after surgery, claimant was released to return to light duty at Western Electric on June 5, 1978. Claimant was released to resume full duty at Western Electric and all other activity on July 3, 1978, with a 10 percent permanent disability of his left leg. The maximum recovery in cases such as this, where the period of total disability does not provide as much compensation as the specific loss, is based on the specific loss provisions of § 1221(4Xh)(o). Minimum weekly compensation under the law computes to $38.95. § 1202. Claimant is entitled to compensation for 175 weeks for the partial loss of use of his lower left extremity at the statutory minimum of $38.95, plus medical expenses of $2,520. The trial court’s judgment was for $6,825, reduced by one-half because of the settlement by Mrs. Lehr of the claims of claimant. We amend the judgment to reflect the correct computation of the weekly amount due and to delete any reference to reduction of the amount.

In answer to the appeal, claimant also seeks attorney’s fees and penalties»based on defendant’s arbitrary refusal to honor his claim for benefits. In Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2d Cir. 1980), we stated:

“The question of attorney fees and penalties is not a question of discretion or a question of the seriousness and good faith of the asserted defenses. Brewton v. L. L. Brewton Lumber Co., Inc., 349 So.2d 1364 (La.App. 2d Cir. 1977). LRS 23:1201.2 provides that the employer shall be subject to penalties and attorney fees when the failure to make payment is arbitrary, capricious or without probable cause. If the asserted defenses are without a sound basis in fact or in law, penalties and attorney fees shall be assessed. Brewton, supra at p. 1367.”

Was Lewing arbitrary, capricious, without probable cause or a sound basis in fact or in law in contending that he was not an employer of claimant under the compensation law? §§ 1061, 1031, 1035, 1044. Lewing did not make Hammons a third party defendant or claim indemnity from Hammons. § 1063. Mrs. Lehr was not a subcontractor of Lewing in fact or in law. § 1063. Under the finding of joint control, Mrs. Lehr may have been an employer in the conventional sense, but she was not an employer “subject to this chapter” under § 1031 because the work she was undertaking was not a part of her trade, business, or occupation. § 1035, 1061. See Malone-Johnson, supra, § 94; Fonesca, supra. Lew-ing does not and did not contend that Mrs. Lehr was constructing her home as a part of her trade, business, or occupation, but instead he relied only on the contention that he was himself a mere agent or employee of, and was controlled by, Mrs. Lehr. Her control over him, however, does not remove him from his business of building houses or from exercising control over his employees, sub-contractors and their employees. A person who undertakes to execute any work which is a part of his business is liable for workers’ compensation benefits to any employee of another who is employed in the execution of the work as “if the employee had been immediately employed by him.” § 1061. See also Malone-Johnson, supra, § 59. Reed’s work was a part of Lewing’s business in any event. Lewing’s defense is without a sound basis in fact and in law. Penalties (12 percent) and reasonable attorney fees under these circumstances shall be assessed. § 1201.2; Campbell, supra. Considering the one-day duration of the trial, the record, the briefs on appeal, and the amount awarded, we deem $1,500 to be a reasonable attorney’s fee.

Accordingly, we amend and recast the judgment to read that

IT IS HEREBY ADJUDGED AND DECREED that there be judgment in favor of claimant Reed and against defendant Lew-ing

For $6,816.25 (being $38.95 weekly for the 175 week period from the date of the accident on March 1, 1978);

For $2,520 medical expenses;

For legal interest on the weekly amount due from the due date of each weekly amount past due, and on the medical expense, from the date of judicial demand;

For the additional amount of 12 percent on the total amount found due under the workers’ compensation law;

For $1,500 reasonable attorney’s fees, and

For all costs, including the cost of appeal.

As thus amended and recast, judgment is AFFIRMED.

      . In the settlement, Reed and Mrs. Lehr expressly agreed that there was no employment-workers’ compensation relationship between them and that Mrs. Lehr had no liability under the workers’ compensation law to Reed.

      . Claimant was paid $4 per hour. His wages should be determined on the basis of 40 hours per week. §§ 1202, 1021(7). He was disabled, either wholly or partially, from March 1 to July 3, 1978. The total compensation due for disability (662/3 percent of $160, or $106.66 X 18 weeks) is less than the total compensation due for the scheduled loss (statutory minimum of $38.95 for 175 weeks, or $6,816.25). In such cases the employee is entitled to the greater amount. See Malone-Johnson, supra, §§ 282-285.


author: PRICE, Judge. FRED W. JONES, Jr., Judge,

text:
    Gary K. GALBRAITH, Plaintiff-Appellant/Appellee, v. Sally Jane McCown GALBRAITH, Defendant-Appellant/Appellee.
    No. 14475.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    En Banc. Rehearing Denied May 1, 1981.

      Whitmeyer & Glassell by Claudius Whit-meyer, Shreveport, for plaintiff-appellant/appellee Gary K. Galbraith.
    Kennedy, Goodman & Donovan, by Robert J. Donovan, Jr., Shreveport, for defendant-appellant/appellee Sally Jane McCown Galbraith.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

At issue on this appeal is the validity of the marriage between plaintiff, Gary K. Galbraith, and defendant, Sally Jane McCown Galbraith. Plaintiff contends that their purported marriage is an absolute nullity since they were “married” before the divorce judgment dissolving his previous marriage had been signed. Both parties have appealed from a district court judgment decreeing their marriage a nullity, finding both spouses to be in good faith, and denying permanent alimony to the putative wife.

Plaintiff was awarded a judgment of divorce from Barbara Schaffer Galbraith in the First Judicial District Court, Caddo Parish, Louisiana, on April 13, 1976, which judgment was not signed by the court until the next day, April 14. On the afternoon of April 13, plaintiff and defendant exchanged marriage vows in Denton, Texas. The couple returned to Shreveport where they established their matrimonial domicile.

This circuitous and protracted litigation began on August 16, 1979, when plaintiff sued defendant in Caddo Parish District Court for a separation on the grounds of abandonment and cruelty. Defendant reconvened seeking a separation and penden-te lite alimony on August 21, 1979. The district court rendered judgment on defendant’s motion in a judgment filed September 11, 1979, awarding to her $350 alimony per month pending the outcome of the litigation. Defendant appealed that judgment to this court, and in a judgment rendered March 31, 1980, we amended the trial court’s judgment in order to raise the monthly alimony payments to $500. Galbraith v. Galbraith, 382 So.2d 1042 (La. App.2d Cir. 1980).

While the defendant’s appeal on the judgment for alimony was pending, plaintiff first questioned the validity of the marriage when he filed an action seeking to have the marriage of the parties declared an absolute nullity since they were purportedly married on April 13, 1976, a day before plaintiff’s prior marriage was dissolved by the signing of a judgment of divorce on April 14, 1976.

Plaintiff’s allegations of nullity were answered by defendant on November 19,1979, when she averred her good faith and the concomitant deception of plaintiff and sought to be recognized as a putative spouse. La.C.C. Arts. 117, 118. Plaintiff amended his nullity action on January 7, 1980, to allege that defendant was in bad faith by marrying plaintiff on April 13, 1976, in Denton, Texas, in contravention of a Texas law which required a 30-day delay between divorce and remarriage. (Defendant’s prior marriage was dissolved in Harris County, Texas by oral decree on March 12, 1976, and a written judgment was signed and filed on March 24, 1976.)

After the exchange of numerous motions and the rendering of two district court judgments on the motions ordering plaintiff to pay alimony which had accrued under the September 11, 1979, judgment, the district court decreed the marriage of the parties to be a nullity. In this judgment rendered June 6, 1980, the district court also decreed that both parties were in good faith in entering the purported marriage, and that defendant was entitled to the status of a putative wife. The pendente lite alimony awarded by the September 1979 judgment was ordered reduced as of October 16, 1979 (the date of plaintiff’s petition for reduction) and terminated as of May 22, 1980 (the date of trial on the nullity action). Although found to be in good faith, defendant was denied permanent alimony because of the trial court’s determination that she was not in necessitous circumstances.

Defendant moved for a new trial alleging that the trial court erred in terminating the temporary alimony before the nullity judgment had become final. This motion was granted and the district court amended and recast the judgment on August 20, 1980, in order to delete the order to terminate the temporary alimony. It is from this judgment that both plaintiff and defendant have appealed.

Defendant seeks a reversal of the nullity judgment and a remand for trial on the issues of separation and divorce. Defendant contends that public policy considerations necessitate upholding the validity of this marriage which was entered into after oral pronouncement of divorce but before signing of the judgment which followed some 24 hours later.

Plaintiff contends the trial court erred in finding defendant in good faith and in excluding plaintiff’s evidence of defendant’s alleged bad faith based on Texas law and seeks a remand for the purpose of determining whether defendant was in bad faith. Even if the defendant was in good faith, plaintiff alternatively contends that the trial court erred in reserving to defendant the right to claim permanent alimony at a later date. This argument is based on plaintiff’s contention that alimony is not payable to a good faith putative wife from a putative husband who is also found to be in good faith. Plaintiff also contends the trial court erred in failing to discontinue the previously awarded temporary alimony past the date the defendant became aware of the impediment to their marriage. Plaintiff contends the trial court erred in failing to consider the issue of fault as it relates to defendant’s right to seek permanent alimony. An additional specification of error assigned by plaintiff is that the trial court erred in assessing costs to the putative community.

The following issues are pertinent to the resolution of this appeal:

(1) Were the parties legally able to contract a valid marriage on April 13, 1976?

(2) If the purported marriage was invalid, was it nevertheless contracted in good faith?

(3) Is the wife entitled to alimony as a civil effect of the putative marriage?

(4) What effect do the nullity proceedings have on the previously awarded alimony pendente lite?

VALIDITY OF THE MARRIAGE

According to the Civil Code an essential requisite to the validity of a marriage is the capacity to contract. La.C.C. Art. 90(2). This required capacity is absent when there exists an impediment to a marriage in the form of a previously existing marriage of one of the parties not dissolved by death, divorce, or declaration of nullity. La.C.C. Arts. 93,136. A marriage contracted in contravention of the rules against bigamous marriages may be impeached by any interested person. La.C.C. Art. 113.

Even though the judgment of divorce which dissolved plaintiff’s previous marriage was rendered in open court before his purported marriage to defendant, the judgment was not signed until after this remarriage. Defendant argues that to rule invalid a marriage under circumstances where the signing of judgment followed oral rendition by only 24 hours would in effect be allowing a mere technical procedural matter to triumph over substance. She cites by analogy cases in which an appeal is granted and perfected after rendition, but before signing. In such cases the jurisprudence has held that the signing of a judgment close in time to rendition cures the prematurity. See Nomey v. State, Dept. of Highways, 325 So.2d 732 (La.App.2d Cir. 1976).

We find those cases inapposite to the instant situation. One of the underlying policy considerations in allowing the maintenance of an appeal (if not the principal consideration) from an unsigned judgment when the judgment is signed close in time to rendition is the protection of a party’s right to have an adverse judgment reviewed by an appellate court. Such considerations would play no part in a decision declaring the marriage between plaintiff and defendant to be valid. On the contrary, we note that plaintiff’s former wife could have appealed the judgment of divorce after the purported marriage between plaintiff and defendant since the delays for appealing would not begin to run until after the divorce judgment was signed on April 14, 1976. See La.C.C.P. Arts. 2087, 1974, 1911.

The jurisprudence closest in point leads us to conclude that plaintiff’s prior marriage was not dissolved by a final judgment until the signing of that judgment on April 14, 1976. See Farrell v. Farrell, 275 So.2d 489 (La.App. 1st Cir. 1973) and authorities cited therein.

Since the judgment dissolving plaintiff’s prior marriage could have no effect until it was signed, the purported marriage between plaintiff and defendant on April 13, 1976, is in direct contravention of Art. 93 of the Civil Code. In Farrell, the First Circuit was faced with a situation in which a divorce judgment was rendered in open court but not signed until two years later. The court there held that a marriage entered into between oral rendition and signing was an absolute nullity:

... A person who is married to one person not only is incapable of contracting another marriage, but the attempted second marriage is not susceptible of ratification or confirmation, whether express or implied. Clark v. Clark, 192 So.2d 594 (La.App.3d Cir. 1966) and Melancon v. Sonnier, 157 So.2d 577 (La.App.3d Cir. 1963). The trial court was correct in annulling defendant’s marriage to plaintiff on the evidence shown. C.C. Arts. 113, 114.

Likewise, in the instant case the judgment of the trial court decreeing the marriage between plaintiff and- defendant to be an absolute nullity is correct.

GOOD FAITH OF THE PARTIES

The trial court specifically found both plaintiff and defendant to be in good faith and thus the annulled marriage was held to nevertheless produce the civil effects of a valid marriage. Good faith in the context of this putative marriage doctrine is defined as an honest and reasonable belief that the marriage was valid and that no legal impediment to it existed. See Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502 (1949). The question of whether a party is in good faith in entering into an invalid bigamous marriage is a subjective inquiry, Succession of Marinoni, 183 La. 776, 164 So. 797 (1935), and depends on all the circumstances presented in any given case. Succession of Chavis, 211 La. 313, 29 So.2d 60 (1947).

Plaintiff contends that the trial judge erred in refusing to allow him to introduce evidence which would have shown that defendant had been advised that she should not many plaintiff on April 13,1976, due to the Texas law which required a 30-day period between divorce and remarriage. This evidence was placed in the record under an offer of proof. Again, the important inquiry is whether defendant had an honest and reasonable belief that no impediment existed to her marriage to plaintiff and to that end her knowledge of the Texas statute may have had a bearing on her good faith in entering into the marriage with plaintiff.

The issue of good faith of the parties to an invalid marriage presents a question of fact which must be determined by the trial judge and his findings are entitled to great weight. Gathwright v. Smith, 368 So.2d 679 (La.1978). Even after considering the excluded evidence, we are of the opinion that the trial court’s conclusion that defendant was in good faith is adequately supported by the record and is not clearly wrong. There are no additional allegations by plaintiff which would suggest that defendant had any reason to believe that her marriage to plaintiff was anything but a valid and legal marriage.

Plaintiff alleged that he did not discover until shortly before filing his nullity action that the divorce judgment of April 13,1976, was not signed until the day after he and defendant married. Although defendant originally asserted that plaintiff was in bad faith in her answer to plaintiff’s action of nullity, no evidence was presented to support that allegation and she does not now dispute the trial court’s holding that plaintiff was in good faith.

We therefore conclude that the trial court properly found that the annulled marriage of April 13, 1976, between plaintiff and defendant was entered into in good faith on the part of both parties to the marriage.

PUTATIVE WIFE’S RIGHT TO CLAIM ALIMONY

Defendant sought by reconventional demand to plaintiff’s petition for nullity “all the benefits of a putative wife, including ... permanent alimony .... ” Plaintiff sought to introduce evidence of defendant’s “fault” as that term is employed in reference to La.C.C. Art. 160 alimony in order to preclude defendant’s right to claim this award. The trial court was of the opinion that fault was not at issue in a putative marriage situation and refused to allow plaintiff’s evidence. On the other hand, the trial court held that the “rules of permanent alimony” apply in a putative situation such as this and denied the wife’s claim upon a finding that she was not in necessitous circumstances. Plaintiff contends that it was error to exclude evidence of fault when a determination of fault on the part of a divorced wife of a valid marriage would preclude an award of alimony. C.C. Art. 160. Plaintiff further contends that reserving to defendant in this case the right to seek permanent alimony at a later date regardless of her fault would be placing defendant in a better position than a divorced wife of a valid marriage.

It is established that alimony is a civil effect of the marriage flowing to a good faith wife of the putative marriage when the other party is in bad faith. Cortes v. Fleming, 307 So.2d 611 (La.1973). Since in the present case both parties are in good faith, we are presented with the “more difficult question” not before the Supreme Court in Cortes, i. e., does the wife have a right to claim alimony from a good faith husband.

The Supreme Court in Cortes discussed the possible codal bases for awarding alimony to a good faith wife from a bad faith husband when it compared French authorities to our own provisions of the Civil Code. In such situations the award could be viewed as damages under Art. 2315; as a pension analogous to Art. 160 alimony; or simply as a fruit of a putative marriage flowing as a civil effect under Arts. 117-118. The issue before us is what should be the basis for the award of alimony to a putative spouse when both parties are in good faith.

In Cortes, the Supreme Court stated that the mutual obligation of support owed by married persons to each other (La.C.C. Art. 119) was a civil effect of the marriage. If the obligation of support established by Art. 119 is an effect of the marriage established at its confection, then it is a civil effect flowing to a good faith spouse under Arts. 117 and 118. Such is not the result in France, however, when both spouses to the putative marriage are in good faith as is pointed out in Cortes. The French deny the good faith putative wife the right to claim alimony from a good faith husband under the theory that the obligation of support growing out of the marriage disappears when the marriage is annulled. I Planiol, Civil Law Treatise, No. 1111 (La.St.L.Inst. trans. 1959).

The trial court in the instant case analogized putative alimony to permanent alimony after divorce (C.C. Art. 160) by reserving to the wife the right to claim this pension-type award at a later time. This was the analysis employed by the Third Circuit in Austin v. Ok Hui Pak, 378 So.2d 623 (La. App.3d Cir. 1979), in a situation where the putative husband was in bad faith.

Although the issue was not before the Supreme Court in Cortes and we find no cases discussing a situation such as we have before us, we are of the opinion that alimony after annulment as a civil effect of a putative marriage when both spouses are in good faith should be dealt with according to the rules for alimony after divorce under Art. 160. A wife could have an honest and reasonable belief that no impediment existed to her absolutely null marriage and yet be guilty of Art. 160 fault. Such a putative spouse should not be placed in a. more advantageous position than a divorced spouse of a valid marriage. Therefore we conclude that the good faith spouse claiming permanent alimony from the other good faith spouse after the marriage is annulled will be precluded from doing so if guilty of fault.

Defendant does not contest the trial court’s factual determination that she is not at the present time in necessitous circumstances. If at a future time defendant presents the question of permanent alimony to the court her pre-annulment fault will properly be at issue.

EFFECT OF NULLITY JUDGMENT ON PREVIOUS PENDENTE LITE AWARDS

As previously discussed, the September 1979 judgment on a rule to fix pendente lite alimony was appealed by defendant to this court where the judgment was affirmed as amended. Galbraith, supra. Plaintiff now contends that since the nullity judgment has in effect decreed that the parties’ marriage was void ab initio, then all incidental relief should fall. This argument has no merit for the reason that the prior award of pendente lite alimony is now a definitive judgment and plaintiff’s attempt to have such award set aside amounts to a collateral attack reprobated by established jurisprudence. See Allen v. Commercial National Bank in Shreveport, 243 La. 840, 147 So.2d 865 (1962).

While it is true that the judgment of nullity has the effect of terminating the prior pendente lite award, such prior award will continue and payments accrue until this judgment becomes definitive. La.C.C.P. Art. 1842; Austin, supra.

The judgment appealed reduced the pen-dente lite alimony previously fixed to $350.00 effective October 16,1979, the filing date of the first petition for reduction or elimination. This reduction is not questioned on appeal.

The trial judge assessed all of the costs of this suit to the putative community. Plaintiff contends this was error, however, counsel for plaintiff cites us no authority for this proposition. We consider this an equitable solution and find no abuse of discretion on the part of the trial judge in assessing these costs to the putative community. See La.C.C.P. Arts. 1920 and 2164.

For the reasons herein assigned the judgment appealed is affirmed. Costs of this appeal are assessed to plaintiff. Fred W. Jones, Jr., Judge, concurs in part and dissents in part and will assign written reasons.

FRED W. JONES, Jr., J., concurs in part and dissents in part.

FRED W. JONES, Jr., Judge,

concurring in part and dissenting in part.

I agree with the disposition by the majority of all issues presented by this appeal except that involving the putative wife’s claim to permanent alimony. On this question the majority holds that, when both parties to a putative marriage are in good faith, one of them who was not at fault may claim permanent alimony from the other upon meeting evidentiary requirements relating to financial circumstances. I believe that this is an unwarranted expansion of the ruling of Cortes v. Fleming, 307 So.2d 611 (La.1973).

It should be first noted that the Cortes ruling was extremely narrow and restricted to the finding that “alimony is a civil effect of the marriage in favor of a good faith wife of that putative marriage when the other party is in bad faith” (Emphasis added) This limited holding is consistent with the French concept of alimony in a putative marriage situation. The court carefully excluded from the ambit of its decision the “more difficult question which will be presented when both parties are in good faith.”

Next, although the court in Cortes posited several codal articles as authority for its ruling, the most logical basis for allowing one putative spouse to recover alimony because of the bad faith of the other is La. Civil Code Art. 2315 — analogizing the alimony award to damages suffered through the deception of the other party. Viewed in this context, the Cortes holding could not be logically extended to our case in which the party from whom alimony is claimed was in good faith. For this reason, I believe that the majority erred in concluding that a good faith putative spouse may recover alimony from the other good faith putative spouse.

The conceptual difficulties presented by the majority basing its holding on this issue on La.C.C. Art. 160 are apparent. To begin with, this article is placed in the Civil Code chapter entitled “Of the Effects of Separation from Bed and Board and of Divorce.” There is no indication whatsoever that it was meant to provide for permanent alimony in a putative marriage situation. Furthermore, applying the fault concept of Article 160 leads into a legal quagmire. However, this was an inevitable consequence of the erroneous reliance by the majority upon Article 160, since it was unwilling to bestow upon the putative spouse an advantage not enjoyed by the legal spouse, i. e., to receive permanent alimony even though at fault.

It is axiomatic that Article 160 fault is “misconduct of serious nature which is also an independent contributory or proximate cause of the separation.” Pearce v. Pearce, 348 So.2d 75 (La.1977). Unlike most divorce suits, an action for nullity of a marriage would not be expected to pose a fault question. If this matter of permanent alimony is again presented to the trial judge here, under the majority’s ruling in what respect must the claimant putative spouse prove that she was free of fault? Certainly not for the marital breakup, since there was never a legal marriage. If the question is directed at the cause of the physical separation parties may be placed in a “Catch-22” bind. For example, after having lived together for some time believing that the marriage was valid, one of the parties discovers its invalidity. Absent a prompt remarriage, conventional morals would dictate an immediate physical separation. Under the majority’s holding the party who acted properly and left would be guilty of abandonment and considered at fault in connection with the permanent alimony issue.

Exigencies of a unique factual situation may compel courts to “legislate” interstitially pending consideration of the question by an elected, deliberative body. This case is not one of those rare instances. If in Louisiana a good faith putative spouse is entitled to permanent alimony from the other good faith putative spouse, that decision should be the result of legislative action rather than judicial fiat.

For these reasons, I respectfully dissent from the holding of the majority that one good faith putative spouse may claim alimony from the other good faith putative spouse, but concur with the other holdings of the majority. I would amend the judgment of the trial court pertaining to the issue of permanent alimony and would rule that, since both putative spouses were in good faith, the putative wife’s claim for permanent alimony is disallowed.

      . La.C.C. Arts. 117 and 118 provide:
      Art. 117. The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.
      Art. 118. If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children bom of the marriage.

      .As pointed out by the majority, in France when both spouses to a null marriage are in good faith, alimony cannot be claimed by either party. I Planiol, Civil Law Treatise, No. 1111 (La.St.L.Inst. trans. 1959).

      . See Footnote 8, p. 616.

      . La.C.C. Arts. 119, 160, 2315.


author: HALL, Judge.

text:
    Annie Lou BRANCH et vir., Plaintiffs-Appellants, v. Edward J. O’BRIEN et al., Defendants-Appellees.
    No. 14479.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Writ Denied May 18, 1981.

      Donald R. Miller, Shreveport, for plaintiffs-appellants, Annie Lou Branch and Glen Branch.
    Lunn, Irion, Switzer, Johnson & Salley by Bernard S. Johnson, Shreveport, for defendant-appellant, State Farm Mutual Automobiles Insurance Co.
    Before PRICE, HALL, and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Issues of uninsured motorist insurance coverage, medical payments coverage, causation of injuries and amount of damages are presented by these appeals taken by the plaintiffs and the defendant in this action arising out of an automobile accident. The appeals are from a judgment of the district court in favor of Annie Lou Branch and her husband against State Farm Mutual Automobile Insurance Company, the Branches’ uninsured motorist insurer, for $15,844.50 special damages and $40,000 general damages, representing $50,000 awarded for Mrs. Branch’s injuries less $10,000 policy limits previously paid by the liability insurer of the underinsured driver of the other automobile. For the reasons expressed in the district court’s excellent reasons for judgment and in this opinion, the judgment is affirmed.

Background Facts

The accident giving rise to this action occurred on May 22, 1978. While stopped at an intersection, the automobile owned and driven by Mrs. Branch was struck from the rear by another automobile, causing relatively light damage to the Branch automobile. Mrs. Branch had previously been involved in a similar accident on March 13, 1978, some two months earlier. On that occasion an automobile in which Mrs. Branch was riding as a passenger was struck from the rear by another automobile, causing heavy damage.

Mrs. Branch, who had seen an orthopedic specialist prior to the first accident for neck and shoulder pain, was treated after the first accident by the same doctor who diagnosed her injury received in the first accident as a cervical strain. Following the second accident, out of which this suit arises, the doctor continued to treat Mrs. Branch for back problems, which worsened over a period of months. Ultimately, a laminectomy was done by a neurosurgeon, revealing a ruptured and displaced disc in the lower back.

Suit was originally filed against the drivers and insurers involved in both accidents. Since the first accident happened in another parish, an exception of improper venue filed by the defendants involved in the first accident was sustained and that part of the suit was transferred to the district court for the other parish. Plaintiffs settled their claims against the driver of the other car involved in the second accident and his liability insurer for the insurer’s policy limits of $10,-000.

The case went to trial against State Farm as the only remaining defendant. State Farm had issued four liability insurance policies to plaintiffs covering four separate vehicles. Each of the policies provided uninsured motorist coverage. Three of the policies, including the one covering the automobile which Mrs. Branch was driving in the second accident, contained liability and uninsured motorist limits of $10,-000/20,000. One policy, covering a truck, contained liability and uninsured motorist limits of $100,000/300,000. Negligence on the part of the driver of the other automobile was stipulated.

After trial, the district court dealt with the causation, quantum, and coverage issues in a comprehensive opinion. Reviewing the evidence in detail, the court concluded, primarily based on the development of low back pain and disc-related symptoms after the second accident and the orthopedic specialist’s opinion that the disc injury was caused by the second accident, that Mrs. Branch’s injuries and disability were due to the second accident. The court awarded $50,000 general damages.

On the coverage issue, the court held that since uninsured motorist coverage is personal to the insured and is not related to a particular automobile the insured might be occupying at the time of an accident, each of the policies provided coverage and plaintiff was entitled to select the policy under which to seek recovery and could reach the policy with the highest limits.

Specification of Errors

Defendant specifies that the trial court erred: (1) in failing to give effect to LSA-R.S. 22:1406 D(l)(c) as amended by Act 623 of 1977 which prohibits stacking and, therefore, in failing to enforce a valid insurance contract between plaintiffs and defendant; and (2) in finding that plaintiffs proved by a preponderance of the evidence that Mrs. Branch’s injuries and damages were caused by the accident giving rise to this suit.

Plaintiffs specify that the trial court erred: (1) in not awarding Mrs. Branch $100,000 general damages in view of the nature and extent of her injuries and pain and suffering; (2) in failing to award Mrs. Branch damages for loss of future earning capacity; (3) in not awarding plaintiff damages for future medical expenses; (4) in failing to allow recovery under the medical payments provisions of three liability insurance policies issued by defendant to plaintiffs covering vehicles other than the automobile she was driving at the time of the accident; and (5) in failing to award plaintiffs penalties and attorney fees for defendant’s arbitrary and capricious refusal to pay benefits due under the insurance policies. Uninsured Motorist Coverage

Defendant contends the policy issued covering the truck with $100,000/300,000 limits does not provide coverage for this accident in which the plaintiff insured was driving an automobile owned by her and not listed in the policy, under the following exclusionary clause contained in the policy:

“This policy does not apply . . .
(a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured ...”

Defendant further contends that under LSA-R.S. 22:1406 D(l)(c) plaintiff cannot stack multiple uninsured motorist policies and is limited to recovery under the policy issued covering the automobile plaintiff was occupying at the time of the accident. Plaintiffs argue that the exclusionary clause in the policy is not applicable or is void and that they are not attempting to “stack” policies, but are only “selecting” one of the four policies, all of which provide coverage, and are entitled to select the policy with the highest limits.

LSA-R.S. 22:1406 D(l) provides:

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
“(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.
“(b) Any insurer delivering or issuing an automobile liability insurance policy referred to herein shall also permit the insured, at his written request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount.
“(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
“With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
“(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
“(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.”

LSA-R.S. 22:1406 D(l) was amended by Act 623 of 1977 to add the language contained in subsection D(l)(c) for the purpose of preventing “stacking” of policies and coverage, which had been allowed under decisions interpreting the statute prior to the amendment.

LSA-R.S. 22:1406 D(l)(a) requires an insurer who issues a liability policy to provide uninsured motorist coverage with limits equal to the liability limits. Uninsured motorist coverage does not depend on use of a listed insured automobile, but is to protect the insured from damage caused by a negligent uninsured motorist regardless of whether the insured is occupying an automobile listed in the policy, another automobile owned or unowned, or is not occupying an automobile at all. Barbin v. United States Fidelity & Guaranty Company, 315 So,2d 754 (La.1975); Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968); Griffin v. Armond, 358 So.2d 647 (La.App. 1st Cir. 1978); Guillot v. Travelers Indemnity Company, 338 So.2d 334 (La.App. 3d Cir. 1976), writ refused 341 So.2d 408 (La.1977); Thomas v. Nelson, 295 So.2d 847 (La.App. 1st Cir. 1974), writ refused 299 So.2d 791 (La.1974); Elledge v. Warren, 263 So.2d 912 (La.App. 3d Cir. 1972), writ refused 262 La. 1096, 266 So.2d 223 (1972).

Because of this statutory requirement, and the public policy it expresses, clauses excluding or reducing coverage while an insured is occupying an automobile not listed in the policy, whether owned or unowned, have been held to be contrary to the statute and public policy and void. An exclusionary clause identical or substantially identical to the one relied on by defendant in this case was declared void in the Elledge, Thomas, Guillot and Griffin cases cited above. Nothing in the 1977 amendment to LSA-R.S. 22:1406 dealing with “stacking” changed the statutory requirement and public policy or the rule of the cases interpreting the statute in this respect. The exclusionary clause here is void.

Thus, all four policies provide uninsured motorist coverage to plaintiff. Under prior law and cases, plaintiff could have “stacked” the policies and recovered the combined limits of each. Barbin v. United States Fidelity & Guaranty Company, supra; Graham v. American Casualty Company of Reading, Pennsylvania, supra; Deane v. McGee, supra. Did the 1977 amendment change this?

The first paragraph of LSA-R.S. 22:1406 D(l)(c) clearly prohibits increasing the limits of a policy where more than one vehicle is included in the policy. The language in that paragraph about not increasing the limits where more than one policy is available to the insured is not clear because “stacking” in that situation has never involved increasing the limits of a policy but has allowed collecting the stated limits of each policy. However, the Supreme Court in Courville v. State Farm Mutual Automobile Insurance Company, et al., 393 So.2d 703 (La.1981) held: “. . . the first paragraph of the Act provides the general rule that an insured who has insurance available to him under more than one uninsured motorist policy may not stack, ... ”, subject to the limited exception dealt with in Courville where the insured occupies a nonowned automobile, which is not the case here. The Supreme Court pronouncement is a reasonable interpretation of the not-so-clear language of the 1977 amendment and is in keeping with the recognized legislative intent to prohibit “stacking” of policies or coverages.

Plaintiff here cannot stack the four policies and collect the limits of each and does not attempt to do so. As previously stated, however, the 1977 amendment did not change the fact that each of the policies provides coverage to the full amount of each policy’s limits. Nothing in tljie amendment makes coverage under any one of the policies exclusive of that provided by the others. Nothing in the amendment says the policy or coverage on the vehicle in which the injured party was an occupant is the only policy which provides coverage. In fact, the language of the statute as amended is to the contrary; it recognizes that more than one policy or coverage may be available to the insured, and prohibits “stacking” in that instance. It does not purport to regulate which policy is primary or exclusive, except in the case of an insured occupying a nonowned automobile, which is not the situation here. Since each policy provides coverage, there is no statutory reason why plaintiffs should not be able to select the policy under which they seek recovery, even though they are prohibited from recovering the combined full limits of all available policies.

As applied to the circumstances of this case, there is no provision in any of the four policies, all of which contain identical provisions, providing that the coverage of one policy shall be primary to or exclusive of that provided by the others. The excess insurance paragraph of the “Other Insurance” clause is not applicable here because it deals with injury to an' insured while occupying a nonowned automobile. The pro rata paragraph of the “Other Insurance” clause would seem to be applicable because it provides that where the insured has other similar insurance available to him, the highest limits of the available policies govern, and each policy is to bear its pro rata share of the loss. Application of the clause here is inconsequential, however, because the available insurance policies were all written by the same company.

Plaintiff is entitled to recover up to the highest limits of the available policies. It matters not in this case, where all policies were issued by the same insurer, whether plaintiff is said to recover under the one policy providing $100,000 limits, or pro rata under each of the four policies. Plaintiff is entitled to judgment against the uninsured motorist insurer, State Farm, for the full amount of her damages, not to exceed the $100,000 policy limits.

Medical Payments Coverage

Plaintiffs contend they should recover the full amount of medical payments coverage provided by each of the four insurance policies. Defendant contends, and the trial court held, that only the policy covering the automobile being driven by Mrs. Branch at the time of the accident provides medical payments coverage for expenses incurred in this accident.

Each policy provides for payment of all reasonable medical expenses to an insured who sustains bodily injury caused by an accident while occupying “the owned automobile” or while occupying a nonowned automobile. “Owned automobile” is defined as “a private passenger ... automobile described in this policy for which a specific premium charge indicates that coverage is afforded.” Therefore, medical payment coverage is provided only in the policy covering and describing the automobile the insured was occupying at the time of the accident. She was not occupying an owned automobile or a nonowned automobile within the definitions contained in the other three policies, which described and covered vehicles owned by the insured other than the one she was occupying at the time of the accident.

There is no statutory or policy requirement relating to medical payment coverage which overrides or negates the express provisions of the policies, which should be given effect as written. The other three policies do not provide medical payment coverage. See Phillips v. Hartford Accident & Indemnity Co., 325 So.2d 638 (La.App. 1st Cir. 1976).

Causation

Defendant contends the trial court erred in concluding that the disc injury was caused by the second accident, arguing there is not substantial evidence to support that conclusion and that it is more likely that the injury existed before either accident or was caused by the first accident which involved heavy damage to the vehicles.

Substantial evidence supports the conclusion that Mrs. Branch’s disc injury was caused by the second accident. Although she had congenital spondylolisthesis and some arthritic changes prior to either accident, her problem and symptoms at that time were confined for the most part to the upper back, neck and shoulders, and were fairly minimal. After the first accident, the diagnosis was cervical strain, and although there was casual mention in one report of lower back pain, the problems were related almost entirely to the upper back and neck. Mrs. Branch continued to work.

After her second accident, over a. period of months, Mrs. Branch’s symptoms worsened, with pain associated more with the lower back, and disc-related symptoms such as radiating pain in the legs developed. The operation disclosed the disc injury in the lower back.

The orthopedic specialist who treated Mrs. Branch from before either accident to the time of her surgery expressed a firm medical opinion that the disc injury was caused by the second accident. Defendant attacks his opinion as not being supported by medical facts. To the contrary, the doctor’s opinion is supported by the facts, particularly the time sequence of the development of Mrs. Branch’s symptoms. The neurosurgeon who performed the operation declined to express an opinion as to the cause of the disc injury, other than to say it was caused by trauma, but stated that the orthopedic specialist who had followed the patient over a period of time would be in better position to give an opinion.

Defendant emphasizes that the first accident involved much more extensive damage to the automobiles, indicating a greater impact, and making it more probable that the disc injury was sustained in the first accident. Both doctors stated firmly that the extent of damage to automobiles alone bears little or no relationship to the likelihood of a disc injury being sustained by a person occupying a vehicle because so many factors unrelated to physical damage to the vehicles are involved.

As previously stated, the conclusion of the district court that the disc injury was caused by the second accident is supported by substantial evidence — the preponderance of the evidence — and is correct.

Quantum

Plaintiff contends the $50,000 award for general damages is inadequate and should be increased to $100,000. Plaintiff further contends the trial court erred in failing to make awards for future medical expense and for loss of future earning capacity.

At the time of the accident in May 1978, Mrs. Branch, then 40 or 41 years old, was employed at Western Electric. She was also a busy mother, wife, and homemaker. Her pain and disability due to her injury progressively worsened and she had to quit work in August. She was hospitalized three times between August and October, first for conservative treatment including traction, second for a myelogram and more treatment, and last for the surgical procedure. She spent about seven months at home recuperating before returning to her employment on April 30, 1979. During much of that time she was unable to tend to her usual household duties, or to enjoy the other activities she normally engaged in with her husband and family. At the time of trial, in January, 1980, she was still unable to do many of the more strenuous activities. The neurosurgeon gave her a 20 percent disability of the body as a whole. She wears a corset or brace, which is uncomfortable and is embarrassing to her. The neurosurgeon is of the opinion she will require a fusion of the vertebrae in her back in the future, but ascribes the fusion and the wearing of the brace to her congenital problem, not to the disc injury.

In support of plaintiffs’ argument that the award for general damages should be increased to $100,000, several cases are cited which involved similar injuries and larger awards. On the other side of the coin, defendant cites several cases involving similar injuries and smaller awards.

There is no mass of previous similar cases which indicates the $50,000 award made by the trial court is below the range of its discretion. There was no abuse of the trial court’s much discretion in fixing the award of general damages in that amount.

Plaintiffs argue on appeal that the trial court should have made an award for loss or impairment of future earning capacity.

In this case the evidence shows that Mrs. Branch made a good recovery from the disc injury and surgery. She went back to work and had been working regularly for about eight months at the time of trial. The evidence does not establish that her capacity to work in the future is impaired by reason of the accident. There was no abuse of discretion by the trial court in refusing to make a separate award of damages in this respect.

Plaintiffs contend also that the trial court erred in failing to make an award for future medical expenses, particularly in view of the testimony of the neurosurgeon that she would probably need to have a fusion of the vertebrae in her unstable back at some time in the future. The trial court found, based on the medical testimony, that the possible future surgery was not related to the disc injury but was related to Mrs. Branch’s congenital back problems which were likely to be aggravated in the future by the aging process and future trauma. We find no error in this factual determination by the trial court.

Penalties and Attorney Fees

Plaintiffs are not entitled on appeal to have the judgment amended to award penalties and attorney fees because they did not pray for recovery of penalties and attorney fees in their original and supplemental petitions filed in this action. Further, there was no arbitrary or capricious failure to pay on the part of defendant.

Decree

The judgment of the district court is affirmed. Costs of the appeal are assessed to State Farjn Mutual Automobile Insurance Company.

Affirmed.

      . “Other Insurance. With respect to bodily injury to an insured while occupying an automobile not owned by the principal named insured, the insurance under this endorsement shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
      “Except as provided in the foregoing paragraph, if the insured has other similar insur-
      anee available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”