author: CUTRER, Judge.

text:
    Earl T. JONES, Plaintiff-Appellee, v. LIBERTY MUTUAL INS. CO., et al., Defendants-Appellants.
    No. 8304.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1981.

      Bolen & Erwin, Gregory S. Erwin, Alexandria, for defendant-appellant-appellee.
    Julian E. Bailes, Natchitoches, for plaintiff-appellee-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, Judges.
   CUTRER, Judge.

This is a workmen’s compensation suit in which the plaintiff, Earl T. Jones, alleges that he injured his back on June 16, 1977, and again on August 16,1978, and that as a result of these injuries he is totally disabled. He was employed by the Natchitoches Parish Police Jury as a truck driver at the time of both alleged accidents.

The first accident occurred when the truck which the plaintiff was driving for the Police Jury overturned. He was hospitalized for two weeks with injuries, including abrasions, lacerations and pain in his back and neck. He returned to work with the Police Jury in January 1978. Plaintiff alleges that the second accident occurred when he was straining to close the tailgate on his truck after dumping a load.

At the time of the 1977 accident the Police Jury’s workmen’s compensation carrier was Travelers Insurance Company (Travelers), while Liberty Mutual Insurance Company (Liberty Mutual) was the Police Jury’s compensation carrier at the time of the second alleged accident.

The question then arises as to whether the first accident or second accident, or both, were a contributing cause of the plaintiff’s disability.

Following the 1978 accident Liberty Mutual began compensation payments, but terminated these payments on December 26, 1978.

The plaintiff initially brought his suit solely against Liberty Mutual. Liberty Mutual then filed exceptions of prescription, no right and no cause of action and a third party demand against Travelers. The plaintiff amended his petition to include Travelers as a defendant. Travelers then also filed an exception of prescription.

The trial judge overruled the exceptions and found that the plaintiff was totally and permanently disabled due to the August 16, 1978 injury. He also found that Liberty Mutual had acted arbitrarily and capriciously in terminating compensation payments. For these reasons he granted judgment in favor of plaintiff against Liberty Mutual for total and permanent disability benefits, medical expenses and penalties and attorney’s fees. He dismissed the plaintiff’s claim, as well as Liberty Mutual’s third party demand, against Travelers.

Liberty Mutual and the plaintiff appealed. Liberty Mutual argues that the trial court erred in finding that the plaintiff recovered from the June 16, 1977 accident, and that the plaintiff was actually disabled as a result of the earlier accident. Liberty Mutual further contends that there was no work related accident on August 16, 1978 and, finally, argues that they were not arbitrary or capricious in terminating compensation benefits. The plaintiff simply contends that the earlier accident was a contributing cause of his disability. Travelers did not appeal or answer the appeal and stands by the facts as found by the trial court.

Thus, three issues are raised on appeal:

(1) Whether there was a work-related accident on August 16, 1978;
(2) If so, whether that accident or the June 16, 1977 accident, or both, caused the plaintiff’s disability; and
(3) Whether the insurers acted arbitrarily or capriciously in terminating compensation payments.

These issues turn on the facts as found by the trial court. In the case of Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979), the Louisiana Supreme Court set forth the standard of review to be applied by an appellate court in reviewing the factual findings of the trial court as follows:

“On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are as reasonable.
“See: Cadiere v. West Gibson Products Company, 364 So.2d 998 (La.1978); Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974). See also Canter v. Koehring [Co.], 283 So.2d 716 (La.1973).
“As noted by these decisions, the reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

With this standard in mind we will examine the issues presented on this appeal.

The trial court was not clearly wrong in finding that plaintiff suffered a work-related injury on August 16, 1978. The plaintiff testified that on August 15, 1978, he was driving a truck, hauling loads of dirt and, after dumping a load of dirt, he had trouble closing the tailgate on his truck. He was pushing on the tailgate when the pain struck him and he fell. The plaintiff has not worked since this incident.

The plaintiff’s testimony was corroborated by Terry Kilgore. Kilgore was operating a backhoe at the location on Sisson Road to which the plaintiff was hauling dirt. He stated that he saw the plaintiff attempting to close the tailgate of the truck and, after closing same, saw the plaintiff fall. He took plaintiff to the shop and other persons then transported plaintiff to the hospital.

Dr. Joseph Thomas testified that his records reflected that the plaintiff related to him the tailgate incident of August 16th. However, the hospital records, taken by Dr. Thomas and dictated by him the day after the plaintiff’s arrival at the emergency room on August 16th, states that the plaintiff injured his back when he slipped and fell at home. He stated that the plaintiff had related the tailgate incident to him and that it may have been an oversight on his part that the tailgate incident did not appear in the hospital records.

While there is some conflict in the testimony as to the occurrence of the August 16, 1978 accident, the record supports the trial court’s finding that the August 16th accident and injury was worked related.

We next address ourselves to whether plaintiff’s present disability resulted from the accident which occurred in June 1977, whether same is due solely to the incident of August 1978, or whether both of those accidents contributed to the disability.

As stated previously, the trial judge found that the plaintiff was totally disabled and the disability was caused solely by the accident of August 16, 1978.

Dr. Joseph Thomas, a general practitioner, had treated plaintiff for a number of years prior to the 1977 accident. The plaintiff had a degenerative back condition which had pre-existed either of the accidents in question. Dr. Thomas testified that following the 1977 accident he saw plaintiff several times between the date of the accident and the date plaintiff returned to work. The plaintiff’s principal complaints were neck and back problems. After treating plaintiff from June 16, 1977, the date of the first accident, until January 1978, Dr. Thomas was of the opinion that by January 1978, plaintiff had returned to his pre-accident condition and was able to return to his work as a truck driver.

In this regard, Dr. Thomas testified as follows:

“Q. We go up then to 1977, when he had a truck accident, in which he suffered injury again, and recovered so that you could return him to work January 23rd, 1978, about in the same condition he was before this accident happened, wasn’t he?
“A. Yes.
“Q. Now, we go forward from there to this accident. Mr. Erwin is not sure that we have a date established. And I don’t know if we do or not. But, if I present you a hypothet that there was another episode of an accident and injury August 16, 1978, and you accept that as a hypothet, would .... this pain disabled him again, is that correct?
“A. Yes, sir.
“Q. And from that .... August 16, or whatever date we establish, if it’s, hypothetically, August 16, 1978, he has not recovered from that episode sufficiently for you to ever put him back, to work or recommend he go back to work?
“A. No, sir.
“Q. But, in all other instances, you did allow him to go back to work after a period of time for some recovery?
“A. That’s right.
“Q. But, from the August 16, 1978, you have never authorized him or, in your opinion, he should not be authorized to return to work.
“A. That’s right.
“Q. At this point, then, is it your medical opinion that Mr. Jones is disabled in connection with the hypothetical August 16, 1978 accident?
“A. Yes, sir.”

During the time that Dr. Thomas was seeing plaintiff for the June 1977 accident, plaintiff was also being seen by Dr. R. E. Dean, an orthopedic surgeon. Dr. Thomas had referred plaintiff to Dr. Dean. Dr. Dean testified that when he first saw plaintiff on September 23, 1977, plaintiff was complaining of neck problems. He again saw plaintiff on October 19, 1977 for complaints of back pain. Dr. Dean was of the opinion that plaintiff had a lumbar sprain with a degenerative lumbosacral disc. Plaintiff was given medication and bedrest was recommended. This physician saw plaintiff on November 2 and 29, 1977 and on January 9, 1978. On the latter date, Dr. Dean was of the opinion that plaintiff could return to his duties as a truck driver.

After the second accident of August 1978, Dr. Dean saw plaintiff during the months of September and October for back pain. He prescribed medication and a back brace. Plaintiff was examined by Dr. Dean in January 1979 and January 1980. On the latter date Dr. Dean felt that plaintiff was disabled to the extent that he could do only light work. Plaintiff could do no work that would require frequent bending. The doctor stated that plaintiff had a disability secondary to a degenerative disc disease which could be caused or aggravated by injury.

The plaintiff testified that he returned to work in January 1978, after the first accident, as a truck driver. He stated that he was having some pain for which he took medication. The payroll records of the Police Jury show that plaintiff worked regularly from January 1978 until the second accident in August 1978. He took nine days sick leave during this seven month period.

To correctly evaluate the testimony, the entire history of the plaintiff’s back problems must be borne in mind. The injuries complained of are superimposed on the degenerative condition of plaintiff’s spine. We note that he was generally successful in carrying out his duties for seven months following the first accident. Dr. Thomas’ testimony, which was corroborated by Dr. Dean, reflects that plaintiff was in the same condition when he returned to work in January 1978 as he had been prior to the June 1977 accident. There is no dispute that plaintiff has been totally disabled from performing his duties as a truck driver after the second accident of August 16, 1978. Given these facts, we find that the trial court was not manifestly erroneous in finding that the June 1977 accident did not contribute to the plaintiff’s present disability and that such disability is due to the August 16, 1978 accident.

Finally we turn to the question of penalties and attorney’s fees. Liberty Mutual relies on medical reports from Dr. Dean to justify their decision to terminate compensation payments. Liberty Mutual contends that those reports show that it was Dr. Dean’s opinion, prior to the termination of benefits, that the plaintiff could return to work as a truck driver without limitation.

Dr. Dean’s last report, prior to termination of compensation payments, is dated October 30, 1978. That report does state: “He is to return back to work . . .. ” However, that statement should be taken in context. Dr. Dean’s report of October 30th is as follows:

“At this time, patient still has some back pain. His Williams back brace seems to be doing well with him. Occasionally, he will have pain down his right leg. He has been on some aspirin or Bufferin at times for his pain.
“On examination, the Williams back brace seems to immobilize the lower lumbar spine well. There is some pain on motion. Straight leg raising causes pain on the right, but mainly some back pain, and some pain into his right leg. The reflexes show no abnormalities and sometimes he has slight sensory changes, but none at the present time. No motor dis-function at this time.
“X-ray examinations of the lumbar spine was repeated at this time which shows the narrowing in the lower lumbar spine, especially at the L5-S1 disc space and some degree at L4.
“I feel that this patient has a definite degenerative lower lumbar spine. He has responded to his Williams back brace. I do not feel that surgery is particularly indicated at this time. He is to try to return back to his work, wearing his back brace. I feel he would have some difficulties doing some heavy lifting and frequent bending. Possibly, he can perform some type of work or job at this time. He is to return back to work, but I would like to see him back in one month.”

The testimony at trial revealed that frequent bending was required in plaintiff’s job as a truck driver since the bed of the truck had to be shovelled clean following the dumping of each load of dirt. In the case of Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App. 3rd Cir. 1978), writ den., 362 So.2d 1119 (La.1978), this court held that the insurer acted capriciously in completely terminating benefits where a medical report indicated only that the claimant could return to light work. Here the plaintiff could not perform his former duties. A complete termination of benefits was not justified.

Liberty Mutual also argues that penalties and attorney’s fees should not be granted since there was a dispute as to which accident caused the disability. A dispute between the insurers as to which one owes compensation benefits is not justifiable grounds for withholding these benefits. Joyner v. Houston General Insurance Co., 368 So.2d 1149 (La.App. 3rd Cir. 1979).

For the above reasons the judgment of the trial court is affirmed. Costs of this appeal shall be paid by defendant-appellant, Liberty Mutual Insurance Company.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    S. J. LeBLANC, Plaintiff-Appellee, v. UNDERWRITERS AT LLOYD’S, LONDON and Norman Frederick Epps, Defendants-Appellants.
    No. 8315.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1981.

      Edward O. Taulbee, IV, Lafayette, for defendants-appellants.
    Simon & Dauterive, Ana S. Calhoun, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.

      . Underwriters at Lloyd’s, London was named as the insurer. This was error. The insurer was Certain Underwriters at Lloyd’s (Underwriters) with Norman Epps as apparently the agent for Certain Underwriters. The answer was filed on behalf of the latter parties.

   CUTRER, Judge.

This is a suit for the death of a thoroughbred yearling racehorse owned by the plaintiff. The colt was insured by Certain Underwriters at Lloyd’s. The plaintiff, S. J. LeBlanc, made a claim for $35,000.00. The defendants refused payment contending there was no coverage because the plaintiff failed to comply with certain conditions contained in the policy; and that the policy was an actual value policy and that the plaintiff’s loss was far less than $35,000.00.

The trial court rendered judgment in favor of the plaintiff for the full amount of the coverage, $35,000.00. The trial court also awarded the plaintiff attorney’s fees and penalties. Defendants appeal. We affirm.

The issues presented on appeal are: (1) Whether there was coverage under the policy; (2) if coverage existed, a determination of the value of the racehorse at the time of death; and (3) whether penalties and attorney’s fees were properly granted.

The testimony reveals that the sire of the bay colt was Bazaar and the dam, Turflike. He was foaled April 6, 1977. The bay colt was purchased as a weanling by the plaintiff’s father, Pierre LeBlanc, from Moss-leigh Farms. The plaintiff purchased the colt from his father in August 1977 for $5,000.00.

The plaintiff is a horse trainer who trains thoroughbreds. He also buys and sells horses for himself and other people as well as racing his own horses. He has been in this business for 25 years. He presently operates a farm with 41 stalls and owns 10 horses. On December 3, 1978, at about 2:00 or 3:00 P.M., one of the plaintiff’s employees, Peter DeRousselle, noticed that the bay colt appeared ill. DeRousselle stated that the colt was pawing and rolling and that he believed the colt had colic. Plaintiff was in New Orleans and was unavailable. DeR-ousselle reported the behavior to Mrs. Le-Blanc who gave him two pills and some “Bute” to administer to the bay colt. DeR-ousselle did so and the colt responded well. At 5:00 P.M. DeRousselle fed the colt and found that his appetite was good. DeRous-selle also testified that he had seen no signs that the colt was suffering from diarrhea.

The next morning DeRousselle found the colt dead. He reported this to the plaintiff who had returned during the night. The plaintiff reported the death to Bill North in Lexington, Kentucky. North had sold the insurance policy to plaintiff. At North’s instructions, the plaintiff then called a veterinarian, Dr. J. W. Lambert, and asked him to perform an autopsy.

Dr. Lambert testified that he arrived at the plaintiff’s farm shortly before dark and began his autopsy. He found pastings of fecal material around the rectum and on the tail, indicating that the colt had diarrhea, or enterities of some type, otherwise known as colitis. He also found congestion and inflammation in the digestive tract, and some congestion in the lungs. The doctor took tissue samples, packaged them in formaldehyde and sent them to Texas A & M University for analysis. No findings were made because the tissue was too decomposed.

Plaintiff’s claim was refused and this suit ensued.

POLICY COVERAGE

The defendant counsel asserts three grounds for denying coverage. First, he argues that the plaintiff was not the sole owner of the bay colt as required by the policy. The pertinent paragraph of the policy reads as follows:

“2. It is further warranted by the Assured that at the commencement of this Insurance he is the sole owner of each animal hereby insured or the specified shares. This Insurance shall cease to cover an animal immediately the Assured sells it or parts with any interest in it whatsoever, whether temporarily or permanently.”

To substantiate the assertion that the plaintiff was not the sole owner of the bay colt, the defense points to a condition in the agreement between Pierre LeBlanc and Cletus Brown, Jr., owner of Mossleigh Farms, by which the elder LeBlanc purchased the bay colt. That condition reads:

“4) Brown retains Vc interest in breeding purposes only, in the event any of above colts are Stake Class, but will have possession during breeding career and have full control of all management of breeding.”

The plaintiff stated that he had purchased the bay colt from his father subject to that condition. We find, however, that this did not prevent the plaintiff from being the “sole owner” within the ordinary popular sense of those words. Cletus Brown had only a contingent right to breeding the colt. In the event the bay colt proved to be “stake class,” Brown would have the right to use the colt for breeding purposes and retain one-half of the proceeds. This arrangement is properly characterized as part of the consideration for the sale. Brown is not a co-owner. The defendant’s argument is without merit.

The defense also argues that the plaintiff did not satisfy the conditions of the policy requiring that proper care and attention be given to each insured animal, that in the event of illness a veterinarian be employed and the insurer be notified. The provision relied on reads as follows:

“6. It is a condition precedent to any liability of the Underwriters hereunder that
(a) the Assured shall at all times provide proper care and attention for each animal hereby insured, and
(b) in addition, in the event of any illness, disease, lameness, injury, accident or physical disability whatsoever of or to an insured animal the Assured shall immediately at his own expense employ a qualified Veterinary Surgeon and shall, if required by the Underwriters, allow removal for treatment,
(c) in the event of the death of an insured animal the Assured shall immediately at his own expense arrange for a post-mortem examination to be made by a qualified Veterinary Surgeon, and
(d) in either event the Assured shall immediately give notice by telephone or telegram to the person or persons specified for the purpose in the Schedule, who will instruct a Veterinary Surgeon on the Underwriter’s behalf if deemed necessary,
and any failure by the Assured so to do shall render the Assured’s claim null and void and release the Underwriters from all liability in connection therewith, whether the Assured has personal knowledge of such events or such knowledge is confined to the representatives of the Assured or other persons who have care, custody or control of the animal(s).”

In support of their contention that the bay colt did not receive proper care and attention, the defense relies heavily on the testimony of Dr. Robert Singer, expert in thé field of veterinary medicine. He explained that colic is a serious, sometimes even fatal, condition in a horse. He felt that the horse should not have been left unobserved from the time of the evening feeding until the next morning, as revealed by his testimony set forth below:

“Q. Dr., in your experience, have you seen circumstances and occassions [sic] where a horse has been given some medication for colic, and the symptons [sic] had eased only to return again a short period later?
“A. That is not uncommon at all. Thats [sic] very common.
******
“Q. If we assume, for the moment, that an animal was showing evidence of colic at 2 or 3 o’clock in the afternoon, and was given some type of medication, and the symptoms seemed to have been easing around 5:00 in the afternoon, when the animal was taking feed, what would be your opinion of proper veterinary management of the animal from that point later in the day?
“A. Well, the veterinary management, I would say, the horseman should know through his own experience. A veterinarian would advise him to currently or periodically observe him through a period of time until they were sure it had been corrected. As I mentioned, a horseman knows this, that he must watch him through the night, under those circumstances. I might add, I have been in situations where after treatment at 2:00 in the morning, we have been called back out.
“Q. Would the simple act of observation itself have significantly improved the horses [sic] chances of survival?
“A. In my opinion, yes, definitely.”

Dr. Lambert testifying for the plaintiff, did not find the course of treatment substandard. Although he admitted that he would have advised further observation if he had been contacted, Dr. Lambert emphasized the fact that the bay colt was eating normally by 5:00 P.M. That portion of this testimony is as follows:

‘A. Now, he states that at five (5:00) o’clock, as you heard his testimony, the horse was calm, looked normal, ate his feed. Would there be anything there to cause alarm?
'A. No, sir. Normally, the important thing you go by is the eating. If the animal is eating, you can pretty well say he’s in good health. If he’s not eating, you can look for a febrile condition, or fever, and then, look for inflammation. I guess that’s the thing that not just myself, but a lot of veterinarians would ask their clients and say, ‘What is he eating?', so you can get'tin idea of the animals [sic] health in that one (1) question.”

Considering the conflict in the expert testimony we cannot say that the trial court erred in holding that the bay colt received proper care and attention.

The defendants also argue that under sections (b) and (d) of condition 6, plaintiff’s failure to immediately call in a qualified veterinary surgeon or to notify the defendants of the colt’s illness relieves them of liability.

The requirement of immediate notice in an insurance policy means notice within reasonable time or without unnecessary delay. Reagan v. Mid-Continent Underwriters, Inc., 150 So.2d 75 (La.App. 4th Cir. 1963), writ ref’d, 244 La. 220, 151 So.2d 692 (1963). Here the horse showed his only signs of illness at around 2:00 or 3:00 P.M. on Saturday, December 2nd. At 5:00 P.M. of the same day he was thought to have been cured. We do not think that the requirement of immediate notice can be construed to require action within two hours. It would be unreasonable to require notice of illness where the horse had regained his health. Here the plaintiff’s employee assumed that at 5:00 P.M. the bay colt had recovered and the reasonableness of this assumption was supported by the expert testimony of Dr. Lambert.

The requirement that a qualified veterinary surgeon be immediately employed in the event of illness must also be interpreted to mean such employment will take place within a reasonable time, or without undue delay. Given the particular circumstances of this case we find that there was no such unnecessary delay.

The plaintiff contends that the policy provision requiring immediate employment of a veterinarian was met since LeBlanc’s horses were under the continuing care of Dr. Lambert. Dr. Lambert testified that, although he was not the only veterinarian used by the LeBlancs, that he performed a large amount of work for them. He explained that he usually consulted with Mrs. LeBlanc on a continuing basis concerning the medical care of the horses at the Le-Blancs' farm. He stated that he dispenses medication to her and reviews its use with her. He further testified that it is usual in a large animal practice for a veterinarian to dispense medication for certain ailments to the owners. Frequently the medication is then administered, not by the veterinarian, but by the owners or their employees, such as grooms or dairy help. He stated that he had prescribed medication to the LeBlancs to be used in the case of colic, and that he had great confidence in DeRousselle’s knowledge of horses and felt that he could certainly discern colic and administer medication.

Considering the continuing relationship between Dr. Lambert and the LeBlancs, the fact that the symptoms were common, albeit serious, and that appropriate medication to deal with such symptoms, according to Dr. Lambert’s prior directions, was available, we find that it was not unreasonable for Mrs. LeBlanc to forego contacting a veterinarian until after she had tried the medication that had been prescribed by Dr. Lambert.

QUANTUM

Having determined that there is coverage, we next turn to the question of award. The trial judge awarded $35,000.00. In doing so the trial court relied heavily on the fact that $35,000.00 was indicated as the “Amount of Insurance,” and cited LSA— R.S. 22:667 as controlling. That statute reads:

“In any case in which a policy includes coverage for loss of or damage to personal property of the insured, from whatever cause, if the insurer places a valuation upon the specific items of covered property and uses such valuation for purposes of determining the premium charge to be made under the policy, the insurer shall compute any covered loss of or damage to such property which occurs during the term of the policy at such valuation without deduction or offset, unless a different method is to be used in the computation of loss, in which latter case, the policy, and any application therefor, shall set forth in type of prominent size, the actual method of such loss computation by the insurer.
“The provisions of this section shall not apply to insurance of the kind referred to in Paragraph (3) of R.S. 22:6 when the coverage pertains to land vehicles nor shall the provisions of this section apply to any property used primarily for business purposes.”

The evidence in this case clearly indicates that the bay colt was purchased primarily for business purposes. The plaintiff’s entire business career focused on horse racing. Part of that business was racing his own horses. The policy of insurance itself indicates that the colt was to be eventually used for flat racing. Thus we find that R.S. 22:667 does not apply.

In the absence of such a statutory rule the terms of the policy must control. The policy clearly provides that in the event of the animal’s death the assured will be indemnified for the actual value of the animal at the time of death but not exceeding the limit of liability which was $35,000.00.

As a consequence of our finding that this is an “actual value” policy we are faced with determining what the value of the bay colt was.

The plaintiff testified that he had been training thoroughbred horses for 25 years. He had trained horses for racing at the various tracks located in several states. As to the colt in question, he purchased same from his father who was also a horse trainer. The purchase was made in August 1977 for a price of $5,000.00. Plaintiff stated that the colt was being trained at the time of death in December 1977. The colt had reached the galloping stage of training.

Plaintiff testified that he was the trainer of the mother of the colt in question. The mother, Turflike, had earned $38,000.00. He also had trained a sister of the colt in question. This animal was named Turflike Tiger which, according to plaintiff was a “nice filly.” Plaintiff stated that he was well acquainted with the colt’s background and the fact that such breeding would lend itself to producing a fast colt for futurity races. He stated that the confirmation of this bay colt was the best; that is, the physical appearance of the colt was the best. The colt was free of any physical defects. Other appealing aspects of this colt were that the colt was intelligent, making it one of the best that he had trained. The plaintiff stated that the colt had a good attitude, he wanted to run. These attributes and the fact that the colt was Louisiana bred, made the colt a good prospect for the futurity races that are run in Louisiana. The colt, if it had lived, would have been eligible to run in races that paid as much as $50,000.00 to $100,000.00 for winning Louisiana bred horses.

Plaintiff had trained horses for Kenneth Chaisson for several years. He stated that Chaisson had lost a horse through a broken leg and was looking for a replacement of the horse. Chaisson went to plaintiff’s home in October 1977 looking for a colt to train for futurity racing. Plaintiff gave Chaisson the background statistics on the colt and showed the colt to Chaisson. After a discussion of the colt, Chaisson offered plaintiff $50,000.00 for the colt. Plaintiff stated that he would have to think over the offer. Two days later, plaintiff refused Chaisson’s offer.

Shortly after this offer, plaintiff called the agent for Certain Underwriters and informed him that he wanted to insure the colt for $35,000.00. He told the agent that he had purchased the colt for $5,000.00 but had recently received the $50,000.00 offer. The agent issued the policy as requested and was paid four percent (4%) of the $35,-000.00, or $1,400.00, as a premium.

Kenneth Chaisson, a floor covering contractor, testified that he is the owner of thoroughbred race horses. He had known the plaintiff for approximately 12 years. He stated that plaintiff had trained horses for him and he had a high regard for plaintiff’s ability in the racehorse field.

After losing a horse in 1977, Chaisson was looking for a young colt to replace the lost horse. Chaisson stated that he went to plaintiff’s home to inquire about purchasing the colt in question. Chaisson stated that he was well acquainted with the record of Bazaar, the colt’s sire. He stated that Bazaar had a record at Acqueduct race track that has never been broken. He was also familiar with the sister of the colt, Turflike Tiger, which impressed him after seeing her work. He stated that he was interested in futurity racing (short distance racing that paid well). This colt’s background showed that he would be well qualified for this type of racing. He also stated that the confirmation of this colt was perfect.

Chaisson explained that futurity races are quite lucrative and this is what influenced him to make the $50,000.00 offer. His testimony in this regard is as follows:

"THE COURT: Mr. Chaisson, fifty thousand ($50,000.00) dollars is a lot of money for a horse. And, of course, you hadn’t bought one in that — I mean, twenty thousand was the highest one.
“A. Right.
“THE COURT: What was it, in particular, about this horse that you were willing to offer that kind of money. And, furthermore, it didn’t seem to me that there was any trading, any negotiation. In other words, you could have started a whole lot lower.
“A. Right. They have this gig futurity every year. It averages anywhere from ninety, a hundred, a hundred and something. And this horse was qualified for it.
“THE COURT: Qualified — how do you mean? In other words, — (Interrupted)
“A. Because he was Louisiana bred, he could run in this futurity. With a little luck, he could have run first, second, third. If he wins, it, the horse is worth three (S) times that, plus you’d get all your money back in one (1) shot.
“THE COURT: You were looking for a horse to run in this particular futurity?
“A. That particular futurity there, yes, ma’am, because I had won the one the year before with another one of my horses.
“THE COURT: I see. How much did you win?
“A. Then, this was the breeder sales futurity, they were sixteen thousand eight hundred.”
>11 * * # * *
“Q. How many races this horse would have been eligible to run, and do you know what, maybe, the aggregate or the total of the purses that he would have been eligible?
“A. On the low side, three hundred thousand, and then, the owner gets sixty (60%) percent of that.
“Q. So, you relied on you had the pedigree, you saw the horse, you saw his sister, you were willing to risk fifty thousand ($50,000.00) dollars?
“A. Right. And the horse was developed young. That’s the kind of horse you can make money with fast at them short distances. It don’t take long.”

Several witnesses were qualified as experts in the evaluation of thoroughbred horses. Dr. Lambert, who testified as an expert in veterinary medicine, was also accepted as an expert in this field. When questioned in the area he testified as follows:

“Q. Now, what is the bottom line as to what a horse is worth?
“A. What you can get for him.
“Q. And by that, I understand, a willing buyer and a willing seller, and they agree on a price, that’s what a horse is worth?
“A. Yes, sir.”

Bud Thibodeaux testified that he has a pedigree service and is a blood stock agent. He has had extensive experience buying and selling thoroughbreds. He stated that a top priority in appraising a horse is his physical appearance. He stated other factors are involved, however, such as background, intelligence, etc. He testified extensively as to the bay colt’s blood lines and to performance of the horse’s relatives. He never actually set a value on the bay colt except to say that if there was a standing offer of $50,000.00 for the bay colt then it was worth $50,000.00 to the owner. He agreed with Dr. Lambert that a horse is worth whatever you can get for him. He stated that a price of $50,000.00 would have to put the bay colt among the top 2% in price for sales of Louisiana bred yearlings. He stated that a half-sister of the bay colt sold for $42,000.00. Thibodeaux stated that plaintiff was one of the top trainers in Louisiana and would accept his recommendations in regard to racehorses.

The defendants’ expert, Robert Erie Waldman, also testified that a price of $50,-000.00 would put the bay colt among the top 2% of Louisiana yearlings. After testifying regarding the bay colt’s blood lines, with particular attention to Bazaar’s record as a sire; that is, the prices and performances of other horses sired by Bazaar, Waldman stated that if the bay colt looked good he would value him at $5,000.00. He went further and said that given the other factors involved, if the bay colt’s confirmation was excellent; that is, if he was the “absolute best looking colt that one could imagine to see” he still wouldn’t have been worth more than $10,000.00. Mr. Waldman disagreed with the plaintiff’s experts, saying that a standing offer to purchase a horse at a particular price meant nothing to him in terms of appraising the value of a horse.

All of the experts agreed, however, that the process of appraising a race horse is extremely speculative. The plaintiff’s experts emphasized the gamble involved. They noted that some very moderately priced horses became worth millions, with successful racing careers. It was further explained that the bay colt had been developing very early, a trait typical of colts with the same sire. This, coupled with the fact that he was Louisiana bred, made him a prime candidate for several futurities within the State. The testimony revealed that these races for two year olds could be quite lucrative. Mr. Chaisson was particularly interested in the bay colt for just these reasons. He had been successful in futurity racing in the past and thought this colt might also prove a winner.

Due to the nature of the subject matter, we consider the standing offer of $50,000.00 by Chaisson to be of considerable significance. It is apparent that a race horse cannot be appraised according to comparable sales and, of course, there is no possibility of replacing the individual animal and replacement costs cannot be calculated as it would be for an inanimate object such as a home or an automobile.

In the case of Mercer v. St. Paul Fire & Marine, 318 So.2d 111, 114 (La.App. 3rd Cir. 1975), the question of evaluating lost property was discussed. In that case the court was faced with the task of evaluating property that had been bought as salvage and then lost in a fire. The fact that it was salvage and that the extent of the previously existing damage to the property was undeterminable made it virtually impossible to determine a market value. The court, quoting from 61 A.L.R.2d 711 at 713, summarized different approaches to arriving at actual value. After discussing the market data and replacement costs approached, the court then observed as follows:

“In recent years, a number of courts, seeking to effectuate more complete indemnity, have adopted a third method, the broad evidence rule, to determine actual cash value of property at the time of loss. Under this rule, the trier of facts may consider any evidence logically tending to the formation of a correct estimate of the value of the insured property at the time of loss.
“Generally, it may be said that the proper test or criterion of actual cash value in a particular case depends upon the nature of the property insured, its condition, and other circumstances existing at the time of loss.”

The court also held that:

"... The touchstone for the court in determining actual cash value is the basic principle that an adequately insured person should incur neither economic gain nor loss....”

After considering all the factors involved, the expert testimony and the tenuous nature of racehorse evaluation, we conclude that the plaintiff has proven that it is more probable than not that he suffered economic loss to the full extent of the policy limits of $35,000.00.

PENALTIES AND ATTORNEY’S FEES

The trial court awarded penalties and attorney’s fees pursuant to LSA-R.S. 22:658. Attorney’s fees were set at $2,500.00. The defendants’ denial of coverage was based on its interpretation of the conditions contained in the policy as applied to the facts of this case.

In the case of Carney v. American Fire and Indemnity Company, 371 So.2d 815 (La.1979), the Louisiana Supreme Court stated:

“An insurer’s liability to pay penalties and attorney’s fees is based on whether their action in denying coverage is arbitrary, capricious and without probable cause. LSA-R.S. 22:658. An insurer must take the risk of misinterpreting its policy provisions. If it errs in interpreting its own insurance contract, such error will not be considered as a reasonable ground for delaying the payment of benefits, and it will not relieve the insurer of the payment of penalties and attorney’s fees. Albert v. Cuna Mutual Insurance Society, 255 So.2d 170 (La.App. 3rd Cir. 1971), and cases therein cited.”

Under these principles, the defendants in this case took the risk of misinterpreting the insurance contract. They erred in their interpretation and such error will not be considered a reasonable ground for refusing to pay benefits. Such error cannot relieve the defendants from paying penalties and attorney’s fees.

The inquiry does not, however, stop with the question of coverage. The defendants point out that the trial court erred in applying LSA-R.S. 22:667 and therefore failed to make a determination of the actual cash value of the bay colt. They also state that there was a serious question as to the value of the colt. They then argue that there should be no award of penalties or attorney’s fees where there is an honest debate on the value of the loss. We disagree.

There was never any question that the plaintiff suffered a loss in this case. The policy itself revealed that the colt had been purchased for $5,000.00 and the defendants’ expert at trial stated that if the colt had good confirmation he would have been worth from $5,000.00 to $10,000.00. The defendants made no tender of any amount, however.

Where there is a reasonable dispute as to the amount of loss, the insurer can avoid the imposition of penalties and attorney’s fees by unconditionally tendering the part of the claim which is undisputed. Nations v. Excess Insurance Company, 377 So.2d 433 (La.App. 2nd Cir. 1979); Riverland Oil Mill v. Underwriters for Lloyd’s, 368 So.2d 156 (La.App. 3rd Cir. 1979), writ den., 369 So.2d 1365 (La.1979); Foster v. Western World Ins. Co., 339 So.2d 395 (La.App. 1st Cir. 1976). Due to defendants’ failure to tender the undisputed portion of the value assigned the colt, they cannot now rely on that dispute as to value to escape the penalties provided by LSA-R.S. 27:658. The trial court properly awarded penalties and attorney’s fees.

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

AFFIRMED.


author: GUIDRY, Judge.

text:
    Juanita McDonnieal ADAMS, Plaintiff-Appellant, v. Henry Earl ADAMS, Sr., Defendant-Appellee.
    No. 8357.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1981.

      Trimble, Randow, Percy, Smith, Wilson & Foote, Elizabeth E. Foote, Alexandria, for plaintiff-appellant.
    Jake Shapiro, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This is a divorce action. Plaintiff, Juanita McDonnieal Adams, filed the instant suit against defendant, Henry Earl Adams seeking an absolute divorce grounded on the alleged fact that the couple have lived separate and apart for a period in excess of one year. The trial court dismissed plaintiff’s suit concluding that the parties’ separation was not voluntary as required by law since the defendant was insane at the time the parties separated. Plaintiff appeals.

The record reflects that the parties were married on February 29,1948. The defendant, Henry Earl Adams, has a history of mental illness. Mrs. Adams testified that during the last ten years of their marriage, the defendant exhibited irrational behavior characterized by extreme verbal abuse and threats of physical violence directed towards her and other family members. The defendant was hospitalized at Central Louisiana State Hospital in Pineville, Louisiana from May 1974 until June of 1974 for treatment of mental illness. In addition, the defendant was confined to the Springfield, Missouri, Federal Psychiatric Hospital for evaluation purposes in March of 1977 as a result of threatening to injure a United States postal worker. Following his release from that facility, the defendant was placed on federal probation for an eighteen month period in connection with that offense.

Mrs. Adams testified that the defendant kept a machete in their home which he frequently used to physically threaten the plaintiff. Plaintiff stated that she had often contemplated leaving her husband, but was afraid to leave because the defendant threatened to kill her and their son if she did so. In regard to the events which culminated in plaintiff’s departure from the matrimonial domicile, Mrs. Adams stated that on the night of July 21, 1977, the defendant upon returning to the family home became belligerent and verbally abusive towards her. At that time, the Adams’ son, Henry, Jr., was in Shreveport and the defendant demanded that plaintiff order their son to return home immediately. Mrs. Adams stated that she placated the defendant and he eventually went to bed. According to the plaintiff, the defendant arose the next morning and began verbally abusing her, again demanding that their son return from Shreveport. At that point, the defendant obtained the machete and began physically threatening the plaintiff. Thereafter, the defendant began choking the plaintiff. Mrs. Adams stated that she was able to escape from the defendant and fled to the home of her sister-in-law who lives next door. Mr. Adams followed her and attempted to gain entrance to his sister’s home, however, he returned to his house when his efforts proved futile. At approximately 8:30 a.m. that same morning, Mrs. Adams contacted her husband’s federal probation officer, Mr. Timothy Harrison, seeking his advice regarding the best way to handle the violent domestic situation. At that time, plaintiff informed Mr. Harrison of her intent to permanently separate from her husband. Harrison advised Mrs. Adams to remain at her sister-in-law’s house until he had the opportunity to speak with the defendant and evaluate his mental condition. Mr. Harrison testified that plaintiff told him of her desire to retrieve her personal belongings from the house and that he advised her to watch for the defendant’s departure after which she could return to the family home and remove her things. Following defendant’s departure, Mrs. Adams returned to the family dwelling and obtained her clothing. Mr. Harrison further testified that plaintiff made no specific request that the defendant be hospitalized at the time she initially contacted him. Thereafter, Harrison contacted the defendant and subsequently met with him at his office that morning. After speaking with the defendant, Harrison determined that some affirmative action had to be taken to protect the plaintiff and her family from the violent acts of Mr. Adams. Harrison stated that after meeting with the defendant, he contacted the Coroner’s office for information concerning the procedure to follow in obtaining an emergency mental commitment for the defendant. Upon obtaining the requisite information, Harrison contacted Mrs. Adams and recommended that she sign formal commitment papers that morning. On that same day, July 22, 1977, the defendant was taken to Central Louisiana State Hospital. Later that same morning, Mrs. Adams signed the required papers formally committing her husband to the state hospital for evaluation and treatment. Plaintiff and defendant have not lived together since July 22, 1977.

Plaintiff advances two arguments in support of her contention that the decision of the trial court is in error. First, plaintiff contends that the trial court erred in concluding that LSA-R.S. 9:301 mandates that the separation upon which the action for divorce is grounded must be voluntary on the part of one or both of the parties. LSA-R.S. 9:301 provides:

When the spouses have been living separate and apart continuously for a period of one year or more, either spouse may sue for and obtain a judgment of absolute divorce.”

Although the language of the statute contains no requirement that the separation be voluntary, it is a well established jurisprudential rule that the separation of the parties must be voluntary at its inception at least as to one of the parties to the separation for a divorce to be granted under authority of LSA-R.S. 9:301. See Otis v. Bahan, 209 La. 1082, 26 So.2d 146 (1946); Sciortino v. Sciortino, 209 So.2d 355 (La.App. 4th Cir. 1968), writ denied, 252 La. 461, 211 So.2d 328 (1968); Miller v. Miller, 378 So.2d 1040 (La.App.2d Cir. 1979). Therefore, we reject plaintiff’s initial contention.

Plaintiff next contends that since the defendant was neither adjudicated insane nor incarcerated at the time she decided to live separate and apart from him that the jurisprudential rule above set forth has no application and the trial court erred in concluding otherwise. We disagree.

In the early case of Galiano v. Monteleone, 178 La. 567, 152 So. 126 (1933) our Supreme Court concluded that there can be no divorce for voluntary separation during the statutory period where either spouse was insane. Through the years, our courts have focused upon the mental condition of the parties at the inception of the separation in order to ascertain whether or not such separation was in fact voluntary. In the later case of Ridell v. Hyver, 215 La. 358, 40 So.2d 785 (1949), the plain tiff-wife separated from the defendant-husband at a time when he was of sound mind. Approximately eleven months later, the defendant-husband was confined to a state mental institution for treatment. The court therein focused upon the mental state of the defendant at the inception of the separation, and finding that the defendant was not insane at that time, concluded that the plaintiff was entitled to an absolute divorce based upon the provisions of LSA-R.S. 9:301. In commenting upon the provisions of LSA-R.S. 9:301, the Court stated:

“As we interpret the statute, the separation intended by it is a separation which is voluntary at its inception and which puts at an end the marital association. It must be the intention of at least one of the parties to live separate and apart, or because one of the parties, with or without the acquiescence of the other, intends to discontinue and sever the marital relationship. In essence, we hold that the separation must be voluntary at its inception and that, if one of the parties becomes insane after such voluntary separation, the insanity does not preclude, prevent, or bar the granting of divorce.”

In his oral reasons for judgment, the trial judge notes that the converse of the court’s pronouncement in Ridell, supra, is that if one party to the action for divorce is insane at the time of the inception of the separation, then the requisite “voluntariness” is not present and a divorce grounded upon the parties living separate and apart for one year or more cannot be granted. We agree.

In the case of Clark v. Clark, 215 La.835, 41 So.2d 734 (1949), the court was confronted with a situation wherein the plaintiff-husband filed for divorce under the provisions of LSA-R.S. 9:301 against his wife who was “adjudged” insane at the time that the parties began living separate and apart. The court concluded that the plaintiff-husband was not entitled to a divorce based upon LSA-R.S. 9:301. Our jurisprudence uses the terms, “insane” and “adjudged insane” interchangeably when referring to that mental state of a spouse which precludes a LSA-R.S. 9:301 divorce. We conclude that it is not necessary that a party to an action under LSA-R.S. 9:301 be formally adjudicated insane by a court of competent jurisdiction before a divorce is precluded thereunder. Rather, it is sufficient that the trial court, charged with deciding the divorce action, determine from the testimony and evidence presented, that one of the parties to the action was, in fact, of unsound mind at the inception of the separation.

The record in the instant case clearly establishes that the defendant was of unsound mind when the plaintiff left the matrimonial domicile. Immediately prior to the plaintiff’s departure from the family home, the defendant exhibited extraordinary behavior characterized by violent physical attacks, extreme paranoia, and uncontrolled emotional outbursts. In addition, the record reflects that defendant’s mental condition resulted in his commitment to a state mental hospital the same day that Mrs. Adams separated from him. After concluding that the defendant was insane at the inception of the separation, the trial court, despite the seeming inequity of the result, had no alternative but to deny plaintiff’s petition for divorce under the provisions of LSA-R.S. 9:301. Discerning no clear error in the factual findings and conclusions of the trial court, such factual findings and conclusions must be affirmed. See Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975), writ denied, 310 So.2d 641 (La.1975).

For the above and foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiff-appellant, Mrs. Juanita McDonnieal Adams.

AFFIRMED.


author: LEAR, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. K. G. FARMS, INC. K. G. FARMS, INC. v. STATE of Louisiana DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    Nos. 14247, 14248.
    Court of Appeal of Louisiana, First Circuit.
    July 27, 1981.

      Stephen P. Dart and Robert 0. Butler, Jr., St. Francisville, for appellant.
    Johnie Branch, Bryan Miller, Richard N. Burtt, Baton Rouge, for appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

These consolidated proceedings concern two expropriation suits between the parties. Although consolidated for trial and on appeal, in order to avoid confusion, each suit is addressed separately.

IN RE: APPEAL NUMBER 14,247

This is a case of expropriation by declaration of taking under the authority of LSA-Const., Art. 1, Sect. 4, and LSA-R.S. 48:441-460.

By order of the Twentieth Judicial District Court and the deposit into the registry of the court of the estimated just compensation, the plaintiff, State of Louisiana, Department of Transportation and Development (DOTD), expropriated in full ownership from defendant, K. G. Farms, Inc., certain properties described in its petition. Defendant then moved to have the expropriation order vacated. After a hearing, the trial court held that “the extent of the taking should be limited to a servitude outside the traveled portion and shoulder.”

On appeal, plaintiff contends that the trial court was in error in not affirming its taking of all the expropriated property in full ownership. Defendant answered the appeal, contending that the district court erred in affirming plaintiff’s taking of the proposed traveled portion in full ownership and that plaintiff should be allowed only a permanent servitude of all of the expropriated property.

While a number of legal issues were addressed and determined in the trial court, in its brief, defendant concedes the constitutionality of the taking and that our judicial review is limited to the questions of: (1) whether the property was taken for a highway purpose; (2) whether the expropriating agency acted arbitrarily, capriciously or in bad faith in determining the necessity of the taking; and (3) the adequacy of the compensation. However, defendant does not contest that the taking was for a highway purpose nor the adequacy of the compensation, but argues only that “a policy of requiring a highway right of way in full ownership, rather than a servitude, is arbitrary, capricious or in bad faith.” We disagree, and find that plaintiff’s policy and the taking herein in full ownership are not arbitrary, capricious or in bad faith.

Defendant bears a heavy burden of proof in attempting to have plaintiff’s taking, under the authority of the above referred to constitutional and statutory provisions, declared to be arbitrary, capricious or in bad faith. State, Dept. of Highways v. Jeanerette Lumber & Shingle Co., Ltd., 350 So.2d 847 (La.1977).

Without reiterating all of the underlying facts and rationale of the state’s policy, as discussed in State, through Department of Highways v. Olinkraft, Inc., 350 So.2d 865 (La.1977), it is sufficient to state that in that case our Supreme Court reviewed and approved the state’s policy of taking in full ownership, rather than as a mere servitude.

In explaining this policy, Mr. William Hickey, an assistant road design engineer, testified for plaintiff as follows:

“In this particular case the additional right-of-way was necessary for the full construction of the highway typical section as required by these minimum design standards including shoulders, ditches and appropriate slopes. . . .
“Normally, when the department makes an improvement to a highway, any right-of-way that’s necessary to build a full typical section is acquired in fee or right-of-way, not in servitude. .. .
“[T]he limits of construction fall in the area between the existing and the required right-of-way line so that the roadside ditch and the back slope from the ditch to the natural ground will be constructed in that area. . . .
“There are certain requirements for clear zones that we have to maintain for safety purposes and in many cases the existing right-of-way along the route is on the shoulder of the road or as [is] close to it. Without ownership of the property it is difficult to maintain these areas as clear zones....
“The chief engineer has set up a directive that we should normally acquire a minimum of 10 feet outside the limits of construction to use in constructing the road and to maintain the slopes .... You need this extra area where you are doing major construction in order to build the road and slopes adequately and then to have room to maintain it.”

We believe that defendant has not carried its heavy burden of proof and has failed to prove that the state’s actions, taken in accordance with its policy of expropriating in full ownership, are arbitrary, capricious or in bad faith. We find that the evidence in this record supports the state’s continued reliance on this policy.

For the above reasons, the judgment of the trial court is hereby reversed and judgment is hereby rendered granting to the State, through the Department of Transportation and Development, full ownership of the expropriated property, described as follows:

“Two (2) certain tracts or parcels of land, together with all the improvements thereon, and all of the rights, ways, privileges, servitudes and advantages thereunto belonging or in anywise appertaining, situated in the Parish of West Feliciana, State of Louisiana, and in Section 85, Township 1 South, Range 3 West, Greens-burg Land District, identified as Parcel Nos. 3-3 and 4-5, on a white print of a plat of survey, consisting of sheets nos. 3 and 4, made by W. Ray Ortego, Registered Land Surveyor, dated June 12, 1978, revised, annexed to the above numbered and entitled suit, said tracts or parcels being outlined in red and being more particularly described in accordance with said plat of survey, as follows:
“PARCEL NO. 3-3:
“Being all that portion of defendant’s property lying within a width of approximately 60.00 feet to the left or easterly side of the centerline of State Project No. 251-02-28 beginning at defendant’s most northerly property line, the extension of which in a westerly direction would intersect said center-line at approximate Highway Survey Station 546 + 97; thence proceed in a southerly direction at said width of approximately 60.00 feet to the left or most easterly side of the centerline to defendant’s southeasterly property line, the extension of which in a northwesterly direction would intersect said cen-terline at approximate Highway Survey Station 551 + 70; said parcel of land contains a net area of 0.60 acre, more or less, exclusive of the existing right of way of Route La 66. “PARCEL NO. 4-5:
“Being all that portion of defendant’s property lying within a width of approximately 60.00 feet to the left or northeasterly side of the centerline of State Project No. 251-02-28 beginning at defendant’s westerly property line, the extension of which in a southerly direction would intersect said center-line at approximate Highway Survey Station 571 + 70; thence proceeding in a southerly direction at said width of approximately 60.00 feet to the left of the centerline to approximate Highway Survey Station 575 + 22.88; thence proceeding in a southerly direction at said width of approximately 60.00 feet to the left of the centerline to approximate Highway Survey Station 577 + 00; thence proceeding in a southerly direction and gradually increasing to a width of approximately 50.00 feet to the left of the centerline to a point co-existent with the existing right of way of Route La 66 and the southern line of Section 85, and defendant’s southern property line, the extension of which in a westerly direction would intersect said centerline at approximate Highway Survey Station 578 + 00; said parcel of land contains a net required area of 0.16 acre, more or less, exclusive of the existing right of way of Route La 66.
“Being a portion of the defendant’s property acquired January 27, 1964, in COB 56, Folio 512, as recorded in the Conveyance Records of West Feliciana Parish, State of Louisiana.”

This matter is hereby remanded to the trial court for further proceedings with regard to the payment of compensation to defendant.

IN RE: APPEAL NUMBER 14,248

Plaintiff, K. G. Farms, Inc. filed suit against the State of Louisiana through the Department of Transportation & Development (DOTD), seeking to revoke a prior (1964) judgment of expropriation. After a trial, the court denied plaintiff’s petition and dismissed its revocation suit. Plaintiff then appealed. After the record was lodged in this court, defendant DOTD, filed peremptory exceptions of no right of action and no cause of action.

In Docket No. 3283, the predecessor of DOTD, the Department of Highways, expropriated a certain portion of plaintiff’s property to realign, widen and improve portions of LA 66 (Angola-Bains Highway). On November 27, 1964, the parties in that expropriation suit entered into a “consent judgment”, settling and compromising their differences and thereby putting an end to said lawsuit.

In this present suit, plaintiff alleges that defendant has not used the property in any way, that, had plaintiff known at the time of the consent judgment that the contemplated improvements would not be made for fifteen years, it would not have entered into the consent judgment and that this constitutes a mistake of fact, which vitiates plaintiff’s consent to the agreement. Plaintiff also alleges that its primary cause for entering into the agreement and consent judgment was the proposed construction, and defendant’s failure to perform said construction constitutes a failure of cause/consideration, which renders the agreement null.

In its peremptory exceptions, defendant argues that plaintiff has not pled the required allegations nor produced the required proof necessary to revoke (annul) the 1964 judgment in accordance with the provisions of La.C.C.P. arts. 2001, et seq. Plaintiff’s argument, however, is based on its assumption that the judgment at issue, a “consent” judgment, is no different than all other final judgments, of which nullity must be sought in accordance with arts. 2001, et seq. We disagree.

A consent judgment, which is in effect a bilateral contract between the parties, must be based on consent; an essential element of every contract. Parkerson v. R-5, Inc., 305 So.2d 592 (La.App. 4th Cir., 1974), writ refused 309 So.2d 679 (La.1975); LSA-C.C. art. 1819. Thus, a “consent” judgment, as opposed to other final judgments which are rendered against a party without their consent, may be annulled (rescinded) for an error of fact (LSA-C.C. art. 1841) or of the principal cause of the agreement (LSA-C.C. arts. 1824, et seq.). We find that plaintiff has a right and has stated a cause of action, and defendant’s peremptory exceptions are, therefore, overruled.

Under the provisions of the above referred to civil code articles, a contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract, where the other party knew or should have known it was the principal cause. Nugent v. Stanley, 336 So.2d 1058 (La.App. 3rd Cir., 1976); Scoggin v. Bagley, 368 So.2d 763 (La.App. 2nd Cir., 1979). While plaintiff has alleged that the proposed road construction was its primary cause for entering into the consent judgment, it produced no evidence in the trial court supporting this contention, nor was any evidence producéd by plaintiff indicating that defendants knew or should have know that the proposed road construction was plaintiff’s primary motive for entering into the consent judgment. We find that plaintiff failed to carry its burden of proof below, and that the trial court’s judgment dismissing plaintiff’s suit to revoke the consent judgment is correct.

Further, as was stated in the case of LaHaye v. LaHaye, “A compromise agreement [judgment] needs no other cause or consideration than an adjustment of differences and a desire to set at rest all possibility of litigation.” LaHaye v. LaHaye, 361 So.2d 1351 (La.App. 3rd Cir., 1978). At the time it entered into the consent judgment, plaintiff received from defendant the amount of $2,416.00 as compensation, as well as a termination of the pending litigation between itself and defendant. In the absence of evidence to the contrary, we find that this termination of litigation, together with the receipt of the above referred to amount, was plaintiff’s primary motivation for entering into the consent judgment. We, therefore, find that the 1964 consent judgment was adequately supported by consideration. The judgment of the trial court in this matter is affirmed.

All costs of these appeals, in both No. 14,247 and No. 14,248, shall be paid by K. G. Farms, Inc.

IN APPEAL NO. 14,247: REVERSED, RENDERED AND REMANDED.

IN APPEAL NO. 14,248: AFFIRMED.


text:
    In the Matter of D. A. DELAHOUSSAYE d/b/a Top Crop Seed and Supply Company, et al.
    No. 14516.
    Court of Appeal of Louisiana, First Circuit.
    July 27, 1981.
    Frank Maraist, Baton Rouge and Desho-tels & Deshotels, Kaplan, for plaintiff-appellant, D. A. Delahoussaye, d/b/a Top Crop Seed & Supply Co.
    Robert Leake and Winston W. Riddick, Baton Rouge, for defendants-appellees, Com’r of Agriculture, Fertilizer, Com’n, and state chemist.
    Carmack M. Blackmon, Asst. Atty. Gen., Baton Rouge, for defendant-appellee, Louisiana Dept, of Justice.
    Before ELLIS, COVINGTON and LEAR, JJ.
   ON THE MOTION TO DISMISS APPEAL

LEAR, Judge.

This suit arose from a joint petition for a declaratory judgment, which was filed by (1) Gilbert M. Dozier (Commissioner of Agriculture); (2) the Fertilizer Commission of the State of Louisiana; (3) Dr. E. A. Epps, Jr. (the Louisiana state chemist); and (4) D. A. Delahoussaye d/b/a Top Crop Seed and Supply Company. The first three petitioners are hereinafter referred to as the “Ag Group.”

The Ag Group administers LSA-R.S. 3:1311, et seq., regulating the licensing of manufacturers and distributors of fertilizer and the testing and sampling of fertilizers made and/or sold in Louisiana. Delahous-saye manufactures and sells fertilizers in Louisiana.

There was a dispute between the Ag Group and Delahoussaye regarding the validity of the procedures used by the Ag Group in both licensing and testing and sampling, the issue being whether or not these procedures violate the due process provisions of both the state and federal constitutions and/or exceed the authority granted to the Ag Group by the above cited statutory provisions.

During April-June of 1978, Delahoussaye was assessed penalties of over forty-five hundred dollars for alleged violations of the law regulating the sale and distribution of fertilizers. Under threat of license revocation, he paid the penalties, without prejudice to his contention that they were invalid, and reserving “his rights to recover said sums in the event this court determines that the procedures which were utilized were improper . . .. ”

The relief requested is a declaratory judgment resolving the issues and declaring the rights and liabilities of the petitioners.

As required by LA-CCP art. 1880, a copy of the petition was served on the attorney general, who then filed dilatory exceptions or prematurity and vagueness and a peremptory exception of no cause of action. The trial court granted the prematurity exception, finding that there had not been an administrative hearing as required by the administrative procedure act, LSA-R.S. 49:951, et seq. Judgment was signed dismissing the suit without prejudice, and De-lahoussaye appealed. The Ag Group then filed the instant motion to dismiss the appeal on the ground that the issue was now moot, alleging that new rules and regulations for the licensing and testing and sampling of fertilizers had been promulgated. Alternatively, the Ag Group filed a peremptory exception of no cause of action based on the same ground.

The Ag Group’s argument is that the present rules and regulations now cure any problem previously complained of by Dela-houssaye. Conspicuously absent in the Ag Group’s motion to dismiss, however, is any statement or allegation by them that they have returned or will return the penalties assessed against Delahoussaye under the old rules. In the absence of a return to Dela-houssaye of the assessed penalties, we find that he has a right to continue to contest the validity of said rules in order to seek the return of these assessed penalties and whatever other relief the law may afford him.

Under these circumstances, we find that the issues herein are not moot, and the motion to dismiss the appeal is therefore denied.

MOTION TO DISMISS APPEAL DENIED.


text:
    Mary Ann GUILLORY v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, et al.
    No. 14525.
    Court of Appeal of Louisiana, First Circuit.
    July 27, 1981.

      E. C. Hunt, Jr., Thomas L. Lorenzi, James A. Watson, Lake Charles, for plaintiff-appellant, Mary Ann Guillory.
    David Frohn, Lake Charles, for defendant-appellee, Ethicon, Inc.
    Walter Horrell, Baton Rouge, for defendant-appellee, Dept, of Health and Human Resources.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   ON THE MOTION TO DISMISS APPEAL

LEAR, Judge.

Separate judgments were rendered in favor of the three defendants, Ethicon, Inc., State of Louisiana through the Department of Health and Human Resources and Felicia Leday Esprit, dismissing, with prejudice, plaintiff’s action against each defendant. These judgments were all signed on November 10, 1980, and notice of judgment was sent to the parties on that date. On November 17, 1980, plaintiff filed a motion for a new trial from “the jury verdict of October 31, 1980, judgment signed November 10, 1980 . . .”, which judgment dismissed plaintiff’s suit against Ethicon, Inc. On February 6, 1981, plaintiff’s motion for a new trial was heard and denied, and the judgment denying the new trial was signed that day. On February 25, 1981, plaintiff filed a petition for appeal, seeking an appeal from all three of the above referred to judgments, and an order of appeal against all three defendants was signed on February 26, 1981.

A motion to dismiss plaintiff’s devolutive appeal was filed on June 5, 1981, and a show cause order was issued on June 9, 1981, as to why this appeal should not be dismissed for untimely filing as to defendants-appellees Department of Health and Human Resources and Felicia Leday Esprit. On June 24, 1981, plaintiff filed a stipulation to show cause order, in which she “consents and stipulates to judgment of this Honorable Court maintaining the motion to dismiss appeal . . . . ”

We hold that the appeal taken on February 26, 1981, was untimely and must be dismissed insofar as it affects the State of Louisiana through the Department of Health and Human Resources and Felicia Leday Esprit.

We find that the filing of the motion for a new trial by plaintiff against one defendant, Ethicon, Inc., did not suspend the operation of the judgment as to the other two co-defendants against whom the motion was not filed. And, there is no evidence in the record of any request by plaintiff or order of the trial court holding in abeyance the judgment relating to DHHR and Esprit, pending the disposition of the motion for a new trial. See Dantagnan v. Mancuso, 262 So.2d 580 (La.App. 4th Cir., 1972).

LSA-C.C.P. art. 1974 provides that the seven day delay for a new trial application commences to run on the day after the signing of the judgment or the mailing of the notice of judgment, if required. Arts. 2123 and 2087 of the Louisiana Code of Civil Procedure provide, respectively, that the thirty and sixty day delays for taking sus-pensive and devolutive appeals begin to run on the day following expiration of the delay for applying for a new trial if no such application has been timely filed.

Accordingly, as regards the defendants against whom a motion for a new trial was not filed, the deadline for a devolutive appeal from the November 10,1980, judgment expired on January 19, 1981. For these reasons, and considering the above referred to stipulation by plaintiff, plaintiff’s appeal as to DHHR and Esprit, obtained by order signed on February 26, 1981, was untimely and is therefore dismissed.

MOTION TO DISMISS APPEAL AS TO DEPARTMENT OF HEALTH AND HUMAN RESOURCES AND FELICIA LE-DAY ESPRIT GRANTED.


author: PONDER, Judge.

text:
    Bridgette Butcher WATKINS v. David O. WATKINS.
    No. 14652.
    Court of Appeal of Louisiana, First Circuit.
    July 27, 1981.
    Stephen M. LaRussa, Houma, for plaintiff and appellant.
    Randall Alfred, Houma, for defendant and appellee.
    Before CHIASSON, PONDER and LEAR, JJ.
   PONDER, Judge.

ON RULE TO SHOW CAUSE

This court ordered appellant, Bridgette Butcher Watkins, to show cause why her appeal should not be dismissed for the reason that this court lacked jurisdiction, there being no signed judgment. The rule to show cause was issued by this court on its own motion on June 16, 1981.

Our review of the record indicates there was no signed judgment at the time the appeal was taken.

The appeal, not complying with C.C.P. art. 1911, is an utter nullity.

Accordingly, the appeal of Bridgette Butcher Watkins is dismissed and the matter remanded to the trial court, all costs of this attempted appeal to be borne by Bridgette Butcher Watkins.

APPEAL DISMISSED.


author: GARRISON, Judge.

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    Nancy Lonardo REICHENPHADER v. ALLSTATE INSURANCE COMPANY.
    No. 11930.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 27, 1981.
    Writ Granted Sept. 28, 1981.

      Corey, Reed, Bethay, & Kogos, Edward J. Lassus, Jr., New Orleans, for plaintiff and appellant.
    Drury & Lozes, Felicien P. Lozes, New Orleans, for defendant and appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiff’s suit on an exception of prescription under R.S. 9:5629. From that judgment, which we affirm, plaintiff appeals.

On September 13, 1975, plaintiff, a guest passenger was injured in a “hit and run” accident. She sued on her uninsured motorist policy and suit was filed on February 27, 1980. On the date of the accident, the applicable prescriptive period was 10 years under C.C. Art. 3544. In 1977, however, the legislature passed Act No. 444 which limited the prescriptive period to 2 years. The effective date of Act No. 444 was July 1, 1978.

plaintiff contends that the trial judge committed an error of law when he applied R.S. 9:5629 (Act No. 444 of 1977) retroactively and granted defendant’s exception of prescription, arguing that the retroactive application unconstitutionally divests her of a vested right. Defendant argues that when the legislature specified the effective date of Act No. 444 to be July 1, 1978 instead of September 9, 1977 — which was the effective date of the majority of the acts passed in the 1977 session — the additional time was meant to operate as a “reasonable time” exception so that the statute might be retroactively applied.

Plaintiff is correct in her contention that a cause of action is a vested property right. Where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (La.1978).

Plaintiff is also correct in her contention that some retroactive applications of procedural laws violate due process. Procedural and remedial laws are not accorded retrospective application where the retroactivity would operate to disturb vested rights inasmuch as this would be viola-tive of due process under both U.S. Const. Amend. XIV and La. Const. Art. 1 § 2 (1974). OPSB v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972).

However, the Louisiana courts have also held that where the statute provides a reasonable time in which to assert those rights, no due process violation occurs. A statute which shortens existing periods of limitations will not violate the constitutional prohibition against divesting a vested right so long as it provides a reasonable time for those affected by the act to assert their rights. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950); State v. Recorder of Mortgages, 186 La. 661, 173 So. 139 (1937); Lott v. Haley, 370 So.2d 521 (1979).

Thus the major issue before this court is whether a delayed effective date is a “reasonable time” allowance so that R.S. 9:5629, as amended by Act No. 444 of 1977, may be retroactively applied.

We note that there is a potential split among the circuits. In Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st, 1980), our brethren on the First Circuit found that R.S. 9:5629 could not be retroactively applied. Although the majority opinion in the Johnson case did not discuss the delayed effective date aspect, Judge Watkins briefly noted, but did not discuss the “reasonable time” aspect in his concurrence.

In Tilley v. GEICO, 396 So.2d 525 (La.App.1981) the Third Circuit held that R.S. 9:5629 could be retroactively applied in that case, finding that plaintiff’s time for filing suit under retroactive application was reduced from May 27,1978 to May 27, 1979 or a period of 10 months and 27 days. Our brethren on the Third Circuit further stated as follows:

“We do not agree with the holding in the Johnson case, supra. Rather, we adopt the trial judge’s scholarly analysis of this issue. When presented with the same arguments by plaintiff on the trial level, the trial judge, after carefully reviewing the facts and the holding of the Supreme Court in Lott v. Haley, supra, concluded:
‘The case now before the Court is distinguishable. Here the cause of action arose on May 27, 1977. In July of 1977 the statute shortening the period within which suit could be filed was adopted. By its own terms, the statute became effective July 1, 1978. As previously pointed out, Act 444 of 1977 was published in the official journal of August 8, 1977. A period of eight months and twenty-four days elapsed between publication and the effective date of the statute. Under the terms of the statute, plaintiff’s suit would have been timely if it had been filed on May 27, 1979. Between May 27,1979 and the date of publication of the act one year nine months and nineteen days elapsed. Although the writer might have approached the matter differently, the Legislature undoubtedly felt that allowing a lapse of approximately nine months within which persons affected by the act could assert their rights was adequate. As a matter of fact the plaintiff here had a period of more than one year and nine months within which to assert his rights following the adoption of the act. The Legislature is properly the judge of the reasonableness of the time allowed. Although the result may be harsh, the writer is unable to say that the time was so short as to amount to a denial of justice.’
It is our view that the time period allowed by the Legislature within which persons affected by the LSA-R.S. 9:5629 could assert their otherwise divested contractual cause of action was adequate and reasonable and not in violation of the due process of guarantees of the state and federal constitutions.” (p. 5).

In the instant appeal, the accident occurred on September 13, 1975, hence under the prior prescriptive period of C.C. Art. 3544 the suit would have prescribed in 1985. Under the 2 year term of the statute, the case would prescribe on September 13,1977, however, delaying the effective date 'from September 9, 1977, until July 1, 1978, provided plaintiff with an additional 9 months and 21 days. We find that 9 months and 21 days constitute a “reasonable time.”

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Wayne MACKIEWICZ v. WESTINGHOUSE ELECTRIC CORP., et al.
    No. 12622.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1981.
    Nelson, Nelson & Lombard, Ltd., John P. Nelson, Jr., New Orleans, for appellant.
    Christovich & Kearney, Lawrence J. Ernst, New Orleans, for appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

Defendants-appellees have moved to dismiss plaintiff's appeal on the grounds that “he has taken no action or steps in the prosecution of this appeal in more than two years and has failed to lodge the record of this case in this court. ...”

Following dismissal of his suit in the trial court, plaintiff appealed and filed a motion seeking permission to continue the prosecution of his action in forma pauperis. On October 25, 1978, the trial court allowed plaintiff to continue without prepayment of costs or security, but required him to pay the cost of the transcript of testimony and evidence recorded at trial. Plaintiff thereafter applied to this court for writs, and on May 4,1979 we held that he was entitled to litigate without the payment of any costs, including the preparation of the record for appeal. We ordered the trial judge to furnish plaintiff with the transcript of testimony and a record of appeal.

Attached to defendants’ motion to dismiss is a copy of the trial court’s order of May 1, 1979, extending the return day for filing the transcript to May 31, 1979. This order, which was signed pending disposition of the aforementioned application for writs in this court, was based on the deputy clerk’s sworn statement that the testimony had not been transcribed by the court reporter awaiting ruling by this court on the plaintiff’s writ application. Also attached to defendants’ motion to dismiss is a sworn statement by the clerk of the trial court certifying that the order extending the return date to May 31, 1979 was the last action taken in the matter. According to defendants, plaintiff has abandoned his appeal by more than two years inactivity in failing to see that the transcript was prepared and filed in the record or to take any action to insure that something was done to move his case forward on appeal.

We reject defendants’ contention. It is true that Rule 7, Section 5(a) of the Uniform Rules of this court provides that we may dismiss as abandoned any appeal in which one year has elapsed without any steps having been taken in the prosecution thereof, in accordance with LSA-C.C.P. arts. 561, and 2165. However, LSA-C. C.P. art. 2127 imposes the affirmative duty on the clerk of court to prepare the record on appeal and cause it to be lodged with the appellate court on or before the return day or any extension thereof, and provides that failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal. LSA-C.C.P. art. 2161 further provides that an appeal shall not be dismissed for irregularities, errors or defects unless they are imputable to the appellant.

There is no showing that the clerk’s failure to lodge the record in this court is imputable to plaintiff or due to his fault. Moreover, our ruling on the earlier writ application relieved the plaintiff from paying for the cost of the transcript and effectively placed the onus on the clerk of the trial court to prepare the record and lodge the appeal. As pointed out in Willis v. State Ex Rel. Louisiana Dept. of Highways, 321 So.2d 817 (La.App. 1st Cir. 1975), an appellant has no affirmative duty to mandamus the clerk in order to meet the requirements of the Code of Civil Procedure and interrupt the running of the one year period.

For the foregoing reasons, the motion to dismiss the appeal is denied.

MOTION DENIED.

      . George Blanco, Ray Tinnin, A1 Yeager, Robert Mitchell, John Todd, Gary Schegel, and The Continental Insurance Company.

      . Docket No. 10,364 of this Court. 371 So.2d 388.

      . LSA-C.C.P. art. 561 reads as follows:
      “Art. 561. Abandonment in trial and appellate court.
      An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
      An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year. As amended Acts 1966, No. 36, § 1.”

      . LSA-C.C.P. art. 2165 reads as follows:
      “Art. 2165. Appeals deemed abandoned.
      An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year. As amended Acts 1966, No. 36, § 1.”