author: BLANCHE, Justice. DENNIS, Justice. DIXON, Chief Justice MARCUS, Justice BLANCHE, Justice BLANCHE, Justice

text:
    Chester G. BOND, III, et ux. v. COMMERCIAL UNION ASSURANCE CO., et al. (Lumbermens Mutual Casualty Company) and Chester G. BOND, III, et ux. v. Cindy G. JACK et al. (Lumbermens Mutual Casualty Co.)
    No. 80-C-1965.
    Supreme Court of Louisiana.
    April 6, 1981.
    On Rehearing Nov. 16, 1981.
    Rehearing Denied Dec. 14, 1981.

      John G. McLure, McLure & McLure, Alexandria, for defendants-applicants.
    Gregory S. Erwin, Bolen & Erwin, Alexandria, Sylvia Cooks, Norman P. Foret, McBride & Brewster, Lafayette, Dorwan G. Vizzier, Gist, Methvin, Hughes & Munster-man, Alexandria, for plaintiffs-respondents.
   BLANCHE, Justice.

Plaintiffs, the parents of Chester G. Bond, IV, filed two lawsuits seeking wrongful death damages for the death of their major son, and a survival action for his pain and suffering, medical expenses and property damage.

In the first suit, filed in Lafayette Parish, plaintiffs sued the driver of the vehicle, Cindy G. Jack, and her insurer, State Farm Mutual Automobile Insurance Company (referred to as State Farm). In the second suit, filed in Rapides Parish, plaintiffs sued the deceased’s uninsured motorist carrier, Commercial Union Assurance Companies (referred to as Commercial), and their own uninsured motorist carrier, Lumbermens Mutual Casualty Company (referred to as Lumbermens). Commercial and Lumber-mens filed several pre-trial exceptions which were denied and a third party demand against Cindy Jack.

The suit in Lafayette Parish was transferred to Rapides Parish by order of the trial court and was consolidated with the suit against the two uninsured motorist carriers. Prior to the trial, Chester G. Bond, III, the deceased’s father, passed away. His wife and daughter were properly substituted in his place.

After a three day trial, the twelve person jury returned a unanimous verdict for the defendant, Cindy Jack; thus, all claims were dismissed. The plaintiffs appealed and the Third Circuit Court of Appeal reversed and rendered a judgment in favor of the plaintiff against all four defendants. Defendant Lumbermens has taken this writ, which we granted under the jurisdiction of the 1974 Louisiana Constitution, art. 5, § 5.

The facts of the case are relatively simple. On a clear, dry summer day at a little past noon the deceased, Chester G. Bond, IV, was riding his 750CC motorcycle in a southward direction on University Avenue, a four-lane avenue in the City of Lafayette. The defendant, Cindy Jack, a student at USL at the time, was driving her 1965 automobile in a northward direction on University Avenue. She executed a left turn off of University Avenue onto Azalea Street, a two-lane road, in front of the deceased. In his attempt to avoid a collision with the defendant, the deceased put on his brakes and swerved his motorcycle. He lost control of the motorcycle, flew through the air and landed on the pavement. Having no helmet, the deceased sustained severe head injuries which resulted in his death thirty-two hours later.

The jury heard several witnesses for each side recant the events of that day, and concluded unanimously that the defendant was not negligent or that the deceased had been contributorily negligent. None of the defendants were held responsible to the plaintiffs, and the third party demand of Lumbermens and Commercial against Cindy Jack was also dismissed.

The court of appeal reversed the trial court’s finding of no negligence on the part of the defendant Cindy Jack. The court was also of the opinion that a proper jury charge had not been given to the jury as the standard for a left-turning motorist was greater than “ordinary care”. Furthermore, it concluded that even had the jury been properly charged it would have been manifest error to reach a verdict for the defendants. Accordingly, the court awarded the plaintiffs: $10,000 for decedent’s pain and suffering; $20,000 per parent for his wrongful death; and $8007.58 for stipulated medical and funeral expenses, for a total award of $58,007.58.

In Suit # 7489, the defendant, Cindy Jack, was held responsible for the entire amount of the judgment. Defendant State Farm was held liable for the limit of her policy, $5,000, in solido with Cindy Jack. The judgment was consolidated with the judgment in Suit # 7488 concerning Lum-bermens and Commercial. Their liability was for the excess of State Farm’s liability. Since the limit on the Commercial policy was $5,000, and that on the Lumbermens policy was $100,000, their respective liabilities were adjusted in proportion to their coverages. Thus, Commercial was held responsible for $2,524.17, and Lumbermens for $50,483.41 which, combined with State Farm’s $5,000, made a total consolidated judgment of $58,007.58.

The court of appeal further ruled that the third party demand of Commercial and Lumbermens against Cindy Jack was still alive though they had not answered the plaintiff’s appeal, for they had prevailed at the trial court. However, the Third Circuit ruled Commercial and Lumbermens could not seek reimbursement from Cindy Jack, citing Niemann v. Travelers Ins. Co., 368 So.2d 1003 (La.1979). Thus, they affirmed the dismissal of the third party demands against Cindy Jack.

On certiorari to this Court, Lumbermens has raised four specifications of error:

(1) The court of appeal erred in holding the jury committed manifest error and was clearly wrong in finding for the defendant.
(2) The court of appeal erred in reciting the standard of care for left-turning motorists and finding the jury was precluded from reaching a proper verdict.
(3) The court of appeal erred in finding uninsured motorist coverage on the part of Lumbermens; and
(4) The court of appeal erred in holding that uninsured motorist carriers have no cause of action against an alleged third party tortfeasor.

Though tempted to address each of these allegations, particularly number 4, we decline, for we agree with the defendant that specification of error number 3 has merit and, accordingly, we reverse the court of appeal’s finding that the deceased was covered by the Lumbermens policy issued to the deceased’s father. We agree with the defendant Lumbermens that the deceased was not an insured under his father’s uninsured motorist policy as the deceased was not a resident of his father’s household.

Prior to the trial, Commercial filed exceptions of improper venue and lack of procedural capacity and Lumbermens filed an exception of venue. It was obvious to the trial judge that Lumbermens’ prime contention was that plaintiffs had no cause of action as the deceased was allegedly not a resident of his father’s household. The trial judge heard the evidence and overruled both defendants’ exceptions, including the exception of no cause of action. The defendants did not appeal.

At the trial, the trial judge refused to allow the defendants to pursue this issue of the deceased’s residency in front of the jury. By the use of proffer, both the defendant and the plaintiffs put in evidence substantial materials concerning the deceased’s residency.

However, once the jury found for the defendants, Lumbermens was not held liable to the plaintiffs irrespective of the deceased’s residence. When the plaintiffs appealed the decision to the court of appeal, none of the defendants answered or appealed the lower court’s decisions.

The court of appeal reversed the trial court’s holding and while addressing Commercial’s and Lumbermens’ third party demand against the tortfeasor, Cindy Jack, they did not regard the deceased’s residency. It appears they assumed the deceased was covered by his father’s uninsured motorist policy.

We now address that issue in spite of the plaintiff’s contention that the issue should be considered abandoned because the defendant Lumbermens did not appeal the overruled exception of no cause of action, nor raise the issue by answering the plaintiff’s appeal.

According to C.C.P. art. 2083:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

The overruling of Lumbermens’ exception of no cause of action was not a final judgment and did not cause irreparable injury. Rapides Cent. Ry. Co. v. Missouri Pac. R. Co., 207 La. 870, 22 So.2d 200 (1945). A trial court’s overruling of the defendant’s exception of no right or cause of action is an interlocutory judgment and is not ap-pealable, but it is reviewable on appeal from an adverse judgment on the merits. Maxie v. Hartford Acc. & Indem. Co., 212 So.2d 165 (La.App. 3rd Cir. 1968).

Thus, the defendants could not have appealed the overruling of their exception of no cause of action, but they could have raised it on appeal if they had received an adverse judgment on the merits.

However, the defendant was not under any necessity to appeal the overruled exception after having received a favorable judgment on the merits at the trial court. According to C.C.P. art. 2133:

“An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant ...”

Thus, it would appear from the clear provisions of this article that the defendant was not obliged to answer an appeal from a judgment he did not desire to have modified, revised or reversed in part.

In interpreting the predecessor articles, Code of Practice, arts. 888 and 592, to art. 2133, we have previously decided this issue. In Succession of Markham, 180 La. 211, 156 So. 225 (La.1934), we asked the question, “Have we the power to consider the exception, at the defendant’s instance, in the absence of an appeal by her or in the absence of an answer to the appeal taken by the plaintiff?” We answered in the affirmative.

Likewise, our courts of appeal have held that the prevailing party at the trial level may raise his exceptions on appeal even if he has not sought the appeal nor answered the loser’s appeal. The failure of the defendant to appeal or answer the plaintiff’s appeal did not procedurally bar the court of appeal from considering the defendant’s overruled exception urging no cause and no right of action. State v. Placid Oil Co., 274 So.2d 402 (La.App. 1st Cir. 1972).

Employing the logic of Succession of Markham, supra, the Second Circuit succinctly resolved this issue, holding:

“Defendants seek no change in the judgment because the effect of sustaining on appeal their pleas of prescription would leave the demands of the plaintiff rejected just as they are now rejected in the judgment appealed from. The exceptions of prescription filed by appellees may be considered by this Court even though the defendants neither appealed nor answered the appeal.” Clark v. McDonald’s System, 383 So.2d 61, 62 (La.App. 2nd Cir. 1980).

We believe it would have been the better practice for Lumbermens to have answered the appeal, asserting its contentions that the deceased was not a resident of his father’s household and not covered by the policy. Had this procedural vehicle been utilized the court of appeal would have been squarely confronted with the issue and this Court would have had the benefit of that court’s considered judgment of the same. For this omission, we will assign costs of this writ to Lumbermens even though they will be the successful litigant herein. C.C.P. art. 2164.

However, we disagree with plaintiff’s contention that the defendant has abandoned this issue, and we agree with the Third Circuit that C.C.P. arts. 2083 and 2133 were not designed to require a successful party to insure his judgment below by appealing every adverse ruling on an interlocutory order simply because the appellate court may overturn the trial court’s final decision in his favor on the merits.

We now address the issue and conclude the deceased was not covered by his father’s Lumbermens policy.

According to the Lumbermens policy, “persons insured” included any “relative”. A “relative” is clearly defined as “a relative of the named insured who is a resident of the same household.” We agree the deceased was the son of the named insured; however, we do not believe he was a resident of the same household.

Residency is a question of law and fact to be determined from all the facts of each particular case. Taylor v. State Farm, 248 La. 246, 178 So.2d 238 (1965). The facts in this case are: After graduating from high school in Alexandria, the city in which his parents reside, Chester G. Bond, IV attended college for a short while and then joined the U.S. Navy for four years. He was married and divorced. He became employed in Southern Louisiana as an offshore anchor handler and, again, he was married for a short period and divorced. At the time of his death, he was employed as an anchor handler operating out of New Iberia. His job required him to be on call 24 hours per day and to live within 1 hour of the Port of New Iberia so he could promptly react to calls. He had an apartment in Lafayette where he resided. When he unfortunately died, Chester G. Bond, IV was 30 years old, twice divorced, living and working in Southern Louisiana. He was not a resident of his father’s household in Alexandria. Admittedly, he was close to his parents and did visit them in Alexandria, stay in his old room, keep some personal belongings there, and receive some mail and dividend checks there. We do not regard this as a convincing argument for it is a common experience that a large number of sons and daughters after leaving home remain close to their parents and maintain this type of contact with them, yet are not regarded as residents of their parents’ household.

Each case must be taken on its own facts, and one crucial fact convinces us that the deceased was not a resident of his father’s household. Prior to the accident, the father, Chester G. Bond, III, was sent an increase in his Lumbermens premium because of an accident or ticket his son, the deceased, had received. The father immediately notified his local agent that his son was not a resident of his household, that the son was not to be included under the policy, and that the increase in the premium was an error. The agent corrected the error and the father’s request was noted on the policy endorsement. Defendant’s Exhibit # 10.

Thus, we regard the facts of this case to reveal the deceased was not a resident of his father’s household — neither in the eyes of the law, nor in the eyes of his own father, the policyholder.

For these reasons, the decision of the Third Circuit Court of Appeal holding the defendant Lumbermens responsible to the plaintiffs for any amount is reversed. We affirm the decision as to the other defendants; thus, Cindy Jack is responsible for the entire amount of the judgment, State Farm is responsible for $5,000, and we amend the decision against Commercial to $5,000, as that is their policy limit. As discussed in this opinion, costs of this appeal are assessed to Lumbermens.

Reversed in part; affirmed and amended in part.

ON REHEARING

DENNIS, Justice.

In our first review we erroneously found that the deceased was not a resident of his father’s household in Alexandria. In this opinion we reverse that finding and consider the other issues pretermitted by our initial review, viz., whether the jury verdict was clearly wrong and whether the insurer is entitled to subrogation.

1. Deceased’s Residence

Primarily, we fell into error on original hearing because we gave decisive weight to the August 1, 1973 policy endorsement which stated that the deceased was married, had his own car and was no longer living in Alexandria. Upon reconsideration it is clear that the endorsement does not amount to conclusive disproof of young Bond’s residence in his father’s household at the time of his death. Shortly after the effective date of the endorsement, he was divorced from his wife, and the evidence tends to show that he reestablished his residence in his father’s house. His father testified that he did not remember ever telling his insurance agent that his son no longer lived in Alexandria. Rather, he claimed that he only informed the agent that his son should no longer be considered a primary driver of the vehicle because he had his own car and insurance.

The plaintiffs produced considerable evidence explaining the deceased son’s reason for maintaining an apartment in Lafayette in addition to his Alexandria residence. At the time of his death, the deceased was a thirty year old single man. He was employed as an anchor-handler, performing ninety-five percent of his work offshore. His work took him to locations throughout the western hemisphere for varying lengths of time. The deceased was on call twenty-four hours a day, unless specifically given time off. If called by his employer he was required to report to the employer’s New Iberia office within one hour. In order to fulfill this condition of employment the deceased rented an apartment in Lafayette. The deceased’s father testified, however, that his son kept only his work clothes and the bare essentials for apartment living in Lafayette.

Mr. Bond testified that his son lived at his home in Alexandria most of the time when he was not required to be on call for work. He had his own key to the house and came and went as he pleased. The deceased had his own room at the house in Alexandria and kept various items of personal property there, including a desk, most of his clothes, a gun collection, two dogs, stereo and camping equipment and other personal belongings. Young Bond was allowed free use of the family automobile to which he had duplicate keys. The deceased received various items of mail at the Alexandria address, including dividend checks from two different corporations, federal and state tax forms, car insurance payment notices, and mail from friends. Further, Mr. Bond testified that the deceased had a substantial relationship with the Alexandria social, commercial and professional communities involving bank accounts, retail charge accounts, dental and other medical consultations, and church membership.

The insurance policy’s definition of an insured includes any blood relative of the named insured “who is a resident of the same household.” Since this term has no absolute or precise meaning, see Cal-Farm Ins. Co. v. Boisseranc, 151 Cal.App.2d 775, 312 P.2d 401 (1957), añy doubt as to the extent or fact of coverage under it will be understood in its most inclusive sense, in accordance with the settled principle that ambiguity in an instrument is resolved against the draftsman. La.C.C. arts. 1957, 1958 (1870). See, e. g., Insurance Co. of North America v. Solari Parking, Inc., 370 So.2d 503 (La.1979); Credeur v. Luke, 368 So.2d 1030 (La.1979); Heiman v. Pan American Life Ins. Co., 183 La. 1045, 165 So. 195 (1936); Parker v. Provident Life & Acc. Ins. Co., 178 La. 977, 152 So. 583 (1934); Note, Insurance-Resident of the Same Household, 26 La.L.Rev. 724 (1966). Whether a person is or is not a resident of a particular place is a question of law as well as fact, and is to be determined from all of the facts of each particular case. Taylor v. State Farm Mutual Auto Ins. Co., 248 La. 246, 178 So.2d 238 (1965); Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App.3d Cir. 1976). Mere isolated facts cannot be relied on wholly to determine the issue. Ladner v. Andrews, 216 So.2d 365 (La.App.3d Cir. 1968); Vinet v. Hano, 281 So.2d 183 (La. App. 4th Cir. 1973). On appellate review, the trier of fact’s determination of the question is entitled to great weight and the reviewing court should not substitute its opinion when the trial court’s judgment is based on a reasonable interpretation of the evidence. Branam v. Traders & Gen. Ins. Co., 344 So.2d 1073 (La.App. 3d Cir. 1977).

Applying these precepts, we conclude there was ample evidence to support a finding that the deceased was a resident of his father’s household in the most inclusive reasonable sense of this term. Consequently, the trial court’s finding that coverage was afforded by the Lumbermens’ policy should be affirmed. Accordingly, our original decision of this question is reversed and set aside.

2. Reversal of the Jury’s Verdict

The court of appeal reversed the jury’s verdict for the defendants because the trial court incorrectly instructed the jury on the standard of care required of a left turning motorist and because the verdict was clearly wrong based on all of the evidence in the record. Bond v. Jack, 387 So.2d 613 (La.App.3d Cir. 1980). After reviewing the evidence we conclude that the intermediate court correctly decided these issues and affirm its judgment for the reasons stated in the court of appeal opinion.

3. Insurer’s Subrogation

The major question of law in this case is whether an insurer that makes payment to its insured under uninsured motorist coverage may enforce a conventional subrogation agreement contained in its policy. We conclude that upon payment an insurer, pursuant to a subrogation agreement contained in its policy, becomes conventionally subrogated to its insured’s right against the uninsured tortfeasor. Our general law governing subrogation, Civil Code articles 2159-62, has not been repealed or replaced by the uninsured motorist statute and applies to an uninsured motorist carrier’s subrogation to the right of its insured.

Subrogation is a legal fiction admitted or established by law by virtue of which an obligation, extinguished with regard to the original creditor by payment which he has received from a third person, or from the debtor himself but with funds that a third person has furnished to that effect, is regarded as subsisting in favor of this third person who is entitled to assert, in the measure of what he has paid, the rights and actions of the former creditor. 4 C. Aubry & C. Rau, Droit Civil Francais § 321 (6th ed. Bartin) in A. Yiannopoulos, 1 Civil Law Translations 187 (1965). See also International Paper Co. v. Arkansas & Louisiana M. R. Co., 35 So.2d 769, 771 (La.App.2d Cir. 1948); 2 M. Planiol, Civil Law Treatise pt. 1, nos. 474, 475 at 271 (11th ed. La.St.L. Inst, trans. 1959); Comment, The Role of Subrogation by Operation of Law and Related Problems in the Insurance Field, 22 La.L.Rev. 225 (1961); Comment, Fundamental Principles and Effects of Subrogation in French and Louisiana Law, 25 Tul.L. Rev. 358 (1951).

Conventional subrogation occurs when the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor; this subrogation must be “expressed and made at the same time as the payment.” La.C.C. art. 2160. However, when Article 2160 says of the conventional subrogation that “it must be made at the same time as the payment,” it does not mean that the agreement of subrogation cannot be entered into before, or in anticipation of, the payment, but simply that it cannot be entered into after the payment. Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La.1974); Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766 (1907); Southern Farm Bureau Casualty Insurance Co. v. Sonnier, 396 So.2d 996 (La.App.3d Cir. 1981); State Farm, Fire & Casualty Co., et a 1. v. Sentry Indemnity Co., et al., 346 So.2d 1331 (La.App.3d Cir. 1977).

In the present case, the Lumbermen’s policy contains an agreement of sub-rogation entered into before, or in anticipation of, payment. The combined uninsured motorist coverage exceeds the amount of damages suffered by the plaintiffs. Consequently, upon making payment pursuant to its uninsured motorist coverage, Lumbermen’s will be subrogated in the measure of what it has paid to the plaintiffs’ right against the tortfeasor.

The court of appeal fell into error in construing our opinion in Niemann v. Travelers, 368 So.2d 1003 (La.1979), as holding that the uninsured motorist statute impliedly repealed the subrogation articles of the Civil Code insofar as they apply to uninsured motorist carriers. The Civil Code precepts governing subrogation generally, La.C.C. arts. 2159-62, are consistent with the provisions and purposes of the uninsured motorist statute.

Automobile liability insurance issued in Louisiana must include uninsured motorist coverage unless it has been rejected by the insured. La.R.S. 22:1604(D)(l)(a). The principal elements of uninsured motorist coverage are prescribed by law. La.R.S. 22:1406(D). Any clause in an insurance contract in derogation of the mandatory requirements set forth in the statute is invalid insofar as it conflicts with law. Breaux v. Government Emp. Ins. Co., 369 So.2d 1335 (La.1979); Seaton v. Kelly, 339 So.2d 731 (La.1976); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972).

The legislative aim evinced by the original uninsured motorist statute was to afford protection to insureds when they became the innocent victims of the negligence of uninsured motorists. Booth v. Fireman’s Fund Ins. Co.„ 253 La. 521, 218 So.2d 580, 28 A.L.R.3d 573 (1968). In 1974 the statute was amended to provide that uninsured motorist coverage shall also apply as additional protection when the liability coverage on the tortfeasor’s vehicle is less than the amount of damages suffered by an insured. La.R.S. 22:1406(D)(2)(b) (Acts 1974, No. 154). Accordingly, the object of the uninsured motorist statute, as amended, is to promote full recovery for damages by innocent automobile accident victims by making uninsured motorist coverage available for their benefit as primary protection when the tortfeasor is without insurance and as additional or excess coverage when he is inadequately insured. See Niemann v. Travelers Ins. Co., supra; Whitten v. Empire Fire & Marine Ins. Co., 353 So.2d 1071 (La.App.2d Cir. 1977).

The uninsured motorist statute gives the insurer no greater subrogation rights than those provided by the Civil Code. The uninsured motorist statute provides that an insurer who makes payment under its uninsured motorist coverage is entitled to reimbursement to the extent of its payment from the proceeds of any settlement or judgment resulting from the exercise of its insured’s rights against any person legally responsible for his bodily injury for which such payment is made. La. R.S. 22:1406(D)(4). Beyond recognition of the insurer’s right to reimbursement, however, the statute does not attempt to delineate the complexities of the insurer-insured-tortfeasor relationship. Significantly, the statute does not specify whether the insurer who makes payment is subrogated to the insured’s action against the tortfeasor or whether the insurer’s right to reimbursement is subordinate to the insured’s claim for the balance of the damages he has suffered. Evidently, the legislative scheme contemplates that these matters shall be regulated by the Civil Code or other statutes not inconsistent with the purpose of uninsured motorist coverage.

The codal precepts governing sub-rogation appear to be in complete accord with the purpose of the uninsured motorist statute. Under the Civil Code the uninsured motorist carrier who pays all of its insured’s damages is completely subrogated to his claim against the uninsured or unde-rinsured tortfeasor, but when he pays for only part of the damages sustained, the insurer receives a partial, subordinate sub-rogation. La.C.C. art. 2162; Southern Farm Bureau Casualty Ins. Co. v. Sonnier, supra; see n. 1, supra. By allowing the insurer who either totally or partially pays the victim for the damages he has suffered a right of subrogation to his action against the uninsured or underinsured tortfeasor, the codal scheme promotes full compensation of accident victims by making the tort-feasors ultimately responsible for their del-icts and thereby encouraging motorists to maintain adequate liability coverage. By giving the insured who has been only partially compensated for his loss a lawful cause of preference over the insurer for payment out of his debtor’s property, the code further implements the object of the uninsured motorist statute, which is to promote full recovery for damages by innocent automobile accident victims by making both primary protection and excess coverage available.

This court decided in Niemann that an insurer may not enforce a clause excluding uninsured motorist coverage in the event of its insured’s failure to obtain its consent before entering a reasonable settlement with an underinsured tortfeasor and his insurer. This holding is fully justified on the ground that such a coverage exclusion conflicts with the uninsured motorist statute’s aim of promoting full recovery for all damages suffered by innocent, insured motorists. See also, Lebs v. State Farm Mutual Auto Ins. Co., 568 S.W.2d 592 (Mo.App.1978); Craig v. Iowa Kemper Mutual Ins. Co., 565 S.W.2d 716 (Mo.App.1978); Govt. Employees Ins. Co. v. Shara, 187 N.J. Super. 142, 348 A.2d 212 (1975); Annot. 25 A.L.R.3d 1275 (1969) (Supp.1981). In rejecting the insurer’s pretensions to actual or potential rights against the tortfeasor paramount to its insured’s interest in full recovery, this court made clear that the uninsured motorist statute does not create special or higher subrogation rights for insurers. Any discussion in Niemann of an insurer’s right to subrogation under the Civil Code in other factual contexts would have been premature and unnecessary, since the issue in that case was presented by summary judgment prior to any payment by the insurer. Accordingly, our failure to engage in speculation in Niemann as to an insurer’s right to subrogation under the Civil Code upon payment under its uninsured motorist coverage should not be interpreted to mean that the remedy does not exist.

In Bond v. Commercial Union Assurance Co., et al., the defendant-third party defendant Cindy Jack presented evidence during the trial of the case to show her inability to pay damages. The ability of a defendant to respond in damages is a proper subject of consideration in assessing-damages. Suhor v. Gusse, 388 So.2d 755 (La.1981). The jury found in Jack’s favor on the negligence issue and consequently did not assess plaintiffs’ damages. The court of appeal did not consider Cindy Jack’s alleged inability to pay because of its determination that the uninsured motorist carrier was not entitled to subrogation to plaintiffs’ rights against her. Because the court of appeal’s holding was in error it is now necessary to consider whether a tort-feasor may assert his inability to pay in mitigation of the uninsured motorist carrier’s recovery in subrogation.

With regard to this issue, in Henton v. Southeastern Fidelity Ins. Co., 364 So.2d 1383 (La.App.3d Cir. 1978) the court of appeal correctly held:

“[The insurer] is subrogated to only such rights as held by plaintiff. Since the jurisprudential rule allowing mitigation of damages applies to plaintiff, it likewise applies to [the insurer’s] claim in subrogation.”

Of course, the inability to pay doctrine cannot be asserted by the insurer against its own insured because the very purpose of uninsured motorist coverage is to protect insureds who become the innocent victims of tortfeasors who are without insurance or other means to fully compensate them for their damages. Cf. Tarver v. U-Haul Co., Inc., et al., 362 So.2d 1157 (La. App.2d Cir. 1978).

For the foregoing reasons, we conclude that the court of appeal’s judgments in favor of the plaintiffs are correct and should be affirmed. The judgment rejecting Lumbermen’s subrogation claim in Bond v. Commercial Union Assurance Company, 387 So.2d 617, must be amended, however, because upon payment to the plaintiffs the insurer is entitled to be subrogated to their rights against the tortfeasor. In reforming this judgment evidence of Cindy Jack’s inability to pay must be taken into consideration.

Accordingly, the judgment in Bond v. Jack, et al. is affirmed; the judgment in Bond v. Commercial Union Assurance Company, et al. is affirmed in part, reversed in part, and the case is remanded to the court of appeal for it to make factual findings from the record and to amend its judgment consistently with this opinion.

BOND V. JACK ET AL. JUDGMENT AFFIRMED.

BOND V. COMMERCIAL UNION ASSURANCE COMPANY, ET AL. JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.

DIXON, C. J., concurs with reasons.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents in part and concurs in part and assigns reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur.

That portion of the majority opinion which once more departs from the clear provisions of the Civil Code (Art. 2160) seems to me to be unnecessary. See the dissent in Cox v. Heroman, 298 So.2d 848, 857 (La.1974). In this respect, Louisiana looks much more like a common law jurisdiction than a “civilian jurisdiction, having well developed statutory rules of subrogation, ...” (fn. 3 in the majority opinion). Nevertheless, the court seems to be wedded to the notion that an agreement of subrogation need not be contemporaneous with payment, when made before the loss occurs. The results reached in this case are not unjust. The conceptual problem can await a contest between two subrogees, one with and one without an agreement contemporaneous with payment.

MARCUS, Justice

(dissenting).

I dissent on the question of coverage adhering to our opinion on original hearing Hence, I do not reach the subrogation issue. Nonetheless, I concur in the treatment of that issue by the majority. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting in part; concurring in part).

For reasons previously assigned, I respectfully dissent on the coverage issue, emphasizing that on two occasions, once on August 1, 1973 and again on January 14, 1973, the father notified the agent that his son was not a resident of his household. On both occasions, the father received a reduction of premium. The facts since those occasions, namely the conditions of his employment, convinces this writer that he lived in Lafayette, Louisiana in his own apartment and was not a resident of his father’s household.

This writer respectfully concurs as to the opinion’s treatment of the subrogation issue, but would overrule Niemann v. Travelers, 368 So.2d 1003 (La.1979) outright.

BLANCHE, Justice

(dissenting from the denial of rehearing).

This writer would grant a rehearing on the issue of coverage, being of the opinion that the plaintiff was not a resident of his father’s household.

      . Subrogation cannot injure the insured, however, if he has been paid but in part for his damages, he may exercise his right for what remains due in preference to his insurer. La. C.C. art. 2162; Southern Farm Bureau Casualty Ins. Co. v. Sonnier, 406 So.2d 178 (La.1981).

      . In cases in which the insurer’s payment is insufficient to compensate the insured for all of the damages he has suffered, the insurer is entitled to a partial, subordinate subrogation. As we observed in Southern Farm Bureau Casualty Ins. Co. v. Sonnier, 406 So.2d 178 (La. 1981), “[S]ubrogation cannot injure the creditor, since, if he has been paid but in part, he may exercise his right for what remains due, in preference to him from whom he has received only a partial payment. La.C.C. art. 2162. Thus, when the creditor has received from the subrogee a partial payment only, the credit is divided between them; the original creditor remains creditor for the unpaid portion and the subrogee becomes creditor to the extent of the payment he has made. 2 M. Planiol, Civil Law Treatise, pt. 1, nos. 515, 516 at 286 (11th ed. La.State L.Inst. trans. 1959).... According to French jurisprudence dating back as far as 1712, the original creditor or subrogor is always preferred to the subrogee in such a case; he comes before the latter, and the subrogee can only claim that which remains after the subrogor has been paid. This was the rule in the time of Pothier and the Civil Code (C.N. 1804, art. 1252) expressly recognizes this right of preference accorded to the subrogor against the subrogee. 2 M. Planiol, supra.

      “Accordingly, when an insurer pays his insured only part of the damages to which the insured is entitled from a tortfeasor, the insurer becomes only partially and subordinately sub-rogated to the insured’s right, and the insured is entitled to exercise his right for the balance of the partially paid claim in preference to the insurer-subrogee. See Carter v. Bordelon, 370 So.2d 113 (La.App. 1st Cir. 1979); Legendre v. Rodrigue, 358 So.2d 665 (La.App. 1st Cir. 1978). * * *”

      . La.R.S. 22:1406(D)(4) provides:
      “D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      “(4) In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.”
      Probably as a direct consequence of the common law prohibition of transfers of unliquidat-ed tort claims, the insurance industry has sought to have a subrogation right specifically enacted in any legislation requiring the inclusion of uninsured motorist coverage. A. Wid-iss, A Guide to Uninsured Motorist Coverage, § 3.10 (1969). As a result, provisions identical or similar to La.R.S. 22:1406(D)(4), have been enacted in many states. Id. The provision is modeled on a clause contained in the standard uninsured motorist endorsement. Id.; Note, 25 Loyola L.Rev. 798 (1979). The courts have been divided on the resolution of the question of the effect and enforceability of such subro-gation devices. Several have held that such clauses are not enforceable as long as the claimant has not been fully indemnified. Perez v. Ford Motor Co., 408 F.Supp. 318 (E.D.La.1975); Central National Insurance Group v. Hotte, 312 So.2d 235 (Fla.App.1975); Milbank Mutual Ins. Co. v. Kluver, 302 Minn. 310, 225 N.W.2d 230 (1974); Shamey v. State Farm Mutual Auto Ins. Co., 229 Pa.Super. 215, 331 A.2d 498 (1974). Others have held that the insurance company is entitled to reimbursements in all instances without regard to whether the claimant has been fully indemnified. Glidden v. Farmers Automobile Insurance Association, 57 Ill.2d 330, 312 N.E.2d 247 (1974); Cf. State ex rel. Manchester Ins. and Indemnity Co. v. Moss, Mo., 522 S.W.2d 772 (1975); Farmers Ins. Exch. v. Jones, 30 Utah 2d 211, 515 P.2d 1275 (1973); Cox v. Turner, 157 W.Va. 802, 207 S.E.2d 152 (1974). However, it is unlikely that the Louisiana Legislature intended in enacting the clause as part of the uninsured motorist statute to adopt any of the views expressed by these common law jurisdictions. Because Louisiana is a civilian jurisdiction, having well developed statutory rules of subrogation, the legislature most probably regarded its enactment of the provision as recognition of and reference to an insurer’s right to subrogation as provided by the Civil Code. Moreover, interpretation of the provision in a fashion that would cause injuries of innocent, insured motorists to go unremedied would frustrate the legislative aim evinced by the 1974 amendment to the uninsured motorist statute — to promote full recovery by such motorists by making both uninsured and underinsured motorist coverage available.

      . Because Cindy Jack did not apply for certio-rari in Bond v. Jack, et al, the judgment in that case cannot be amended to benefit her. Cf. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Ray Thomas WOODALL v. Honorable Oliver P. SCHULINGKAMP, Judge, Criminal District Court, Section “F”, Parish of Orleans.
    No. 81-KH-1003.
    Supreme Court of Louisiana.
    Nov. 30, 1981.
   In re Ray Thomas Woodall, applying for supervisory writs. Parish of Orleans. No. 259-043, Section F.

Denied.


text:
    In re J. A. “Bob” WILKES, Justice of the Peace.
    No. 81-0-0851.
    Supreme Court of Louisiana.
    Nov. 30, 1981.
   On the showing made in these contempt proceedings, Justice of the Peace J. A. “Bob” Wilkes, is disqualified from performing any judicial functions (without loss of salary) pending final action on this application. The matter is remanded to the Judiciary Commission for taking evidence, finding facts and making further recommendations to this court arising out of the alleged violation of this court’s previous disciplinary order.


text:
    STATE of Louisiana v. Raymond T. WOODALL.
    No. 81-K-2991.
    Supreme Court of Louisiana.
    Nov. 30, 1981.
   In re Raymond T. Woodall, applying for stay order. Parish of Orleans. No. 259-043.

Denied.


text:
    STATE of Louisiana v. Clenton Louis JOSEPH.
    No. 81-K-3065.
    Supreme Court of Louisiana.
    Dec. 2, 1981.
   In re Clenton Louis Joseph, applying for writ of certiorari and for writ of habeas corpus. Parish of Jefferson. No. 81-4057.

Denied. See C.Cr.P. 361.


text:
    STATE of Louisiana v. Lovair McCOY.
    No. 81-K-3029.
    Supreme Court of Louisiana.
    Dec. 3, 1981.
   In re Lovair McCoy, applying for writs of certiorari, prohibition, mandamus and stay order. Caddo Parish. No. 117642.

Writ denied. Stay order set aside.


text:
    STATE of Louisiana v. George GRIFFON.
    No. 81-K-3089.
    Supreme Court of Louisiana.
    Dec. 3, 1981.
   In re State of Louisiana, through the Attorney General, William J. Guste, Jr., applying for writs of mandamus, certiorari, review, and stay order. Parish of East Baton Rouge.

Writ denied.


author: COVINGTON, Judge.

text:
    Bennie Frazier Thornton JACKSON v. STATE of Louisiana, TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA, etc.
    No. 14399.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 18, 1981.
    Robert D. Downing, Baton Rouge, for plaintiff-appellee Bennie Frazier Thornton Jackson.
    Kay Bates, Baton Rouge, for third party defendant-appellee Sandra 0. Thornton.
    William T. Reeves, Jr., Asst. Atty. Gen., Baton Rouge, for defendant-appellee State of Louisiana Teachers’ Retirement System of Louisiana through the Board of Trustees.
    Ellen R. Eade, North Louisiana Legal Assistance Corp., Monroe, for third party defendant-appellant Helen C. Thornton.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

Third party defendant, Helen C. Thorton, appeals the judgment on a motion for summary judgment in favor of third party plaintiff, State of Louisiana, Teachers’ Retirement System, through the Board of Trustees, against third party defendants, Helen C. Thornton and Sandra 0. Thornton, in the amount of $4,353.64, together with legal interest and costs. We affirm.

Matthew C. Thornton (Employee) became a member of the retirement system in 1963. He designated “Bennie Thornton,” who is now Bennie Frazier Thornton Jackson, the original plaintiff herein and formerly decedent’s wife, as his beneficiary, to receive his contributions to the system (System) in the event of his death before retirement. This was done on September 25, 1963.

Employee died on February 8, 1972. Shortly thereafter, his former wife, Bennie, his surviving spouse, Helen, appellant herein, and Sandra (Employee’s daughter) contacted System concerning any benefits.

System received, in April of 1976, a judgment of possession in the Succession of Matthew Thornton, No. 10,054, 28th Judicial District Court, Parish of Caldwell, dated October 10, 1972, recognizing Helen C. Thornton as the surviving spouse and owner of an undivided one-half interest in the community property with the late Matthew Thornton, and putting Sandra Thornton, as Matthew Thornton’s sole heir, in possession of his entire estate. Then, on June 9,1976, in a letter to the surviving spouse, the System acknowledged receipt of a copy of the Judgment of Possession and sent her a form for completion by her and Sandra. In the same month, the retirement system was furnished the completed form, “Application of Beneficiary for Return of Accumulated Contributions of Deceased Member”, signed by “Helen C. Thornton” and “Sandra 0. Thornton.” Thereafter, System issued its check No. 552174 dated 06/22/76 in the amount of $4,353.64, payable to the “Estate of Matthew C. Thornton, c/o Helen C. Thornton & Sandra O. Thornton, Beneficiaries.” The check was endorsed and cashed by Helen C. Thornton and Sandra 0. Thornton.

On May 3,1978, Bennie Frazier Thornton Jackson, alleging that she was the former wife of Thornton and the named beneficiary of his retirement benefits, sued the State of Louisiana, Teachers’ Retirement System of Louisiana. System responded to plaintiff’s petition, and filed a third party petition against Helen C. Thornton and Sandra O. Thornton, asserting that if System should be found liable to plaintiff Jackson, then the third party defendants should be held liable to System for the amount of any judgment rendered in favor of the original plaintiff.

In the course of those proceedings, the plaintiff moved for a summary judgment against System; and System, in turn, filed a motion for summary judgment against the third party defendants. Hearing on the motions was held on September 26, 1980, with the motion for summary judgment on behalf of the plaintiff being granted against System. System’s motion was taken under advisement. On December 17, 1980, for oral reasons assigned, the lower court rendered judgment in favor of the third party plaintiff, System, against Helen C. Thornton and Sandra 0. Thornton, and the present appeal followed.

This situation is controlled by LSA-C.C. arts. 2301 and 2302; and the case of Berry v. Equitable Life Assurance Society of the U.S., 316 So.2d 399 (La.App. 1 Cir. 1975). In Berry, we found that the decedent’s sister had received the disputed funds from the decedent’s employer’s saving and retirement plans without any right to the funds , and held that the recipient was obligated to return the funds which had been mistakenly paid to her, citing LSA-C.C. arts. 2301, 2302, and the jurisprudence interpreting the cited codal articles. In the instant case System mistakenly paid Helen C. Thornton and Sandra O. Thorton; the designated beneficiary, Bennie Frazier Thornton Jackson, was legally entitled to the funds in the retirement system. T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976); Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975). Hence, the third party defendants received the funds paid by System without any right to the funds. They are thus obligated to return the funds to System.

The appellant’s contention, that System should be barred from recovery of the funds mistakenly paid because of its negligence in paying the funds to the third party defendants, is without merit. Such negligence, if any, is no bar to System’s claim for payment in error or through mistake. DeVillier v. Highlands Insurance Company, 389 So.2d 1133 (La.App. 3 Cir. 1980); Central Surety & Ins. Corp. v. Corbello, 74 So.2d 341 (La.App. 1 Cir. 1954).

System and Helen C. Thornton filed affidavits, with attached exhibits with the motion and opposition thereto. The pleadings, answers to interrogatories, affidavits and exhibits clearly show that there is no disputed fact. There is no genuine issue as to a material fact. Third party defendants do not assert an issue of material fact concerning the payment of the funds and the circumstances surrounding such payment. Rather, the appellant argues that System’s conduct in first denying entitlement to the fund, then three years later encouraging the claimants’ participation, while knowing that Bennie Thornton had been named beneficiary, constituted negligence on System’s part. Appellant asserts: “Was the conduct of the system in paying Appellant so unreasonable and careless as to preclude recovery of funds?”

We have stated above that negligence is not a bar to recovery of funds mistakenly paid to the wrong claimant. It is clear that appellant does not base her contention of trial court error on a finding of no genuine issue of material fact in dispute. Appellant also argues that mover is not entitled to judgment as a matter of law, because reasonable minds could differ as to the legal conclusion resulting from the undisputed facts. We, of course, recognize that if the evidence presented on a motion for summary judgment is subject to conflicting interpretations or reasonable men might differ as to its significance, a summary judgment would be improper. LSA-C. C.P. art. 966. However, when reasonable minds must inevitably conclude the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted. Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1 Cir. 1980). We hold that this was a proper case for the rendition of a summary judgment. After consideration of the undisputed facts, reasonable men would necessarily reach the conclusion that System had mistakenly paid the third party defendants who had, through error, received funds which were not due to them, since they were not designated beneficiaries under the retirement plan. Hence, as the trial court held, System is entitled to return of the full amount of money which has been paid to Helen C. Thornton and Sandra 0. Thornton.

The third party defendant further argues that Helen C. Thornton, as surviving spouse is entitled to a portion of the funds in question under the community property laws. This argument has been answered adversely to her position in the case of T.L. James & Co., Inc. v. Montgomery, supra. The surviving partner in community (surviving spouse) may be entitled to an accounting of community contributions to the retirement system from the decedent’s estate or his heirs, Thrash v. Thrash, 387 So.2d 21 (La.App. 3 Cir. 1980), but not from the beneficiary or the retirement system. Thus, we reject the contention that, as surviving spouse, she is entitled to be recognized as owner of one-half of the benefits attributable to contributions made during the existence of the community between her and the decedent.

In its present posture this is not a contest between a surviving spouse and the decedent’s estate or heirs, or with the beneficiary of retirement benefits. There has been no appeal from the judgment awarding the retirement benefits to the named beneficiary. The appellant has only appealed the December 17, 1980, judgment in favor of the third party plaintiff, the retirement system. The surviving spouse has neither asserted a claim nor asked for an accounting against the estate or the decedent’s heirs.

Accordingly, for the foregoing reasons, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.

      . Sandra O. Thornton has not appealed.

      . The retirement system funds were not mentioned in the judgment of possession.


author: REDMANN, Judge.

text:
    Oliver J. DONAHUE d/b/a O. J. Donahue Construction Company v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT, et al.
    No. 11943.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 27, 1980.
    See also, La.App., 407 So.2d 421.
    H. Bruce Shreves, Lloyd N. Shields, Brian, Simon, Peragine, Smith & Redfearn, New Orleans, for plaintiff-appellee.
    Richard J. McGinity, The Board of Levee Commissioners of the Orleans Levee District New Orleans, for defendant-appellant.
    Arthur J. Lentini, Hall, Lentini, Moule-doux & Wimberly, Kenner, for intervenor-appellant.
    Before REDMANN, GARRISON and BARRY, JJ.
   REDMANN, Judge.

When plaintiff’s low bid was rejected by defendant levee board on the ground that defendant contractors licensing board had ruled that plaintiff’s Class 1 construction license would not license him to demolish a bridge over Bayou St. John at the New Orleans lakefront, plaintiff obtained an injunction on July 14, 1980, obliging defendant to award the contract to plaintiff.

The second-low bidder, Stephen Lambert, obtained on July 29 an order of intervention and for a suspensive appeal which defendant in October moves to dismiss. Thereafter both levee and contractor boards perfected devolutive appeals. Meanwhile, however, before Lambert appealed, the levee board had on July 16 acquiesced in the injunction and awarded the contract to plaintiff according to a resolution by the levee board attached to its motion to dismiss.

Under those circumstances, all appeals must be dismissed. The levee board could not have appealed (see La.C.C.P. 2085 ). The contractors board is but a surplus defendant, whose nominal interest in this matter has become moot. The second-low bidder’s intervention and suspensive appeal, coming after the principal defendant had acquiesced in the judgment and awarded the contract to plaintiff, came too late to keep this lawsuit alive. One can only intervene in a “pending action,” C.C.P. 1091, and this action was no longer pending. And a suspensive appeal cannot suspend the execution of a judgment which was already executed by the parties before the appeal was requested: there is nothing left to suspend.

The levee board in its motion to dismiss notes that the greatest interest in this matter lies with the public who will pay for the cost of public contracts and who meanwhile are forced to the inconvenience of a bridge’s being out and the consequent detour. For that reason, the levee board asserts that it intends to reject all bids and start anew so as to save the time that this appeal will otherwise consume. We sympathize with the levee board’s position, but we can not consider its actions subsequent to the appeal.

We dismiss the appeals of the second-low bidder and of the levee board and the contractors board on the ground that the levee board’s acquiescence in the judgment by awarding the contract to plaintiff terminated this injunction proceeding. The second-low bidder may have other rights to a review of the question of whether the low bidder should have been disqualified, but not in this injunction proceeding to which he was never a party prior to its termination.

Appeals dismissed.

      . “An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.. .. ”


author: REDMANN, Judge,

text:
    Oliver J. DONAHUE d/b/a O. J. Donahue Construction Company v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT et al.
    No. 11943.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1981.
   ORDER

A majority of the judges assigned to this matter grant rehearing in order to consider issues raised in the application for rehearing filed by intervenor-appellant, Lambert:

Having granted rehearing, reviewed all briefs submitted in this matter and considered all the issues now before us, the said majority concludes that no further argument nor briefs are required for them to reach the subsequent decision appearing to them to be dictated by the facts and the law to follow this step; and so concluding:

We hereby order that the appeal in this case be and it is hereby reinstated; and the right of all parties to file briefs relative to the appeal, and, in due course, to engage in oral argument with regard thereto is also reinstated.

REDMANN, J., dissents and assigns written reason.

REDMANN, Judge,

dissenting.

This appeal, impermissible procedurally and worthless on its merits, continues for more months to force the public to detour, as it has since May, 1979, around the bridge across Bayou St. John at Lakeshore Drive in New Orleans. Our earlier dismissal of this appeal was correct and allowed the defendant Board to pursue its duty.

The problem with Stephen Lambert, Contractor’s application for rehearing, as with its original appeal, is that Lambert is really seeking to force the Board to award the contract to Lambert. That cannot be done by appeal from the suit by Donahue against the Board. The only possible judgments in this suit were (a) one enjoining the Board to award the contract to Donahue or (b) one dismissing Donahue’s suit. The trial court had no authority whatsoever to order the Board to award the contract to a non-party such as Lambert, and it is impossible for us to say that the trial court erred by not doing so.

What in fact occurred is that the trial court ordered the contract awarded to Donahue. At that point, Lambert could have appealed just as the Board could have because to award the contract to low bidder Donahue would make it impossible to award it to second lowbidder Lambert (although— one basic premise of this dissent — to deny the contract to Donahue would not oblige the Board to award it to Lambert). But the Board acquiesced in the judgment by complying with it, and therefore the Board can no longer appeal. There is thus a perfectly good contract in force between the Board and Donahue.

What the Board should do is order Donahue to proceed under the contract both have executed. The so-called “suspensive appeal” of Lambert does not constitute an injunction against the Board, or against Donahue, or against anyone else. The Board never needed a judgment to be able to award the contract to low-bidder Donahue in the first place, but in a very prudent reaction to the licensing agency’s ruling did await a judgment and then awarded the contract. There is no way this court can tell the Board even to “disaward” the contract, much less to award the contract to Lambert, because Lambert never sued the Board. Lambert did not even attempt to intervene until the Donahue-Board suit was all over.

What the majority of this panel of this court should do, if it reinstates this appeal, is to set it immediately for argument and final disposition so as to minimize the further inconvenience of the too-long detoured public.


author: GARRISON, Judge.

text:
    Oliver J. DONAHUE, d/b/a O. J. Donahue Construction Company v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT and the State Licensing Board for Contractors.
    No. 11943.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 27, 1981.
    Rehearings Denied Sept. 17, 1981.
    Writs Granted Dec. 4, 1981.

      Simon, Peragine, Smith & Redfearn, H. Bruce Shreves and Lloyd N. Shields, New Orleans, for plaintiff-appellee.
    McGinity & McGinity, Richard J. McGinity, New Orleans, for defendant-appellant.
    Hall, Lentini, Mouledoux & Wimberly, Arthur J. Lentini, and Stephen T. Wimberly, Metairie, for intervenor-appellant.
    Thomas K. Kirkpatrick, Baton Rouge, for appellant State Licensing Board for Contractors.
    Before SAMUEL, GARRISON and BAILES, JJ.
   GARRISON, Judge.

This appeal was reinstated by a panel consisting of Judges Redmann, Garrison and Barry, upon an application for rehearing when it was discovered that the court’s prior opinion on a motion to dismiss failed to address the disposition of the claim of intervenor-appellant, Stephen J. Lambert.

On May 21,1980, the Levee Board passed a resolution stating: “BE IT HEREBY RESOLVED, That the Board accept the lowest applicable bid prior to the 90 day time limit if the State funds are not available.” (emphasis added).

At the time that the resolution was passed, the two lowest bidders had been O.J. Donahue Construction Co. and Stephen Lambert. The State Licensing Board for Contractors had concluded that Donahue did not possess the proper license for the job at issue. On July 14, 1980, the district court ordered the Board to award the contract to Donahue, finding that Donahue was properly licensed for the job. On July 29, 1980, Lambert intervened and was granted a suspensive appeal.

On August 20, 1980, the Board issued a resolution rejecting all bids. The August 20th resolution contains a statement that the Board had previously accepted Donahue’s bid on July 16, 1980, but there is no proof of any acceptance other than the August resolution and Donahue’s statement that the contract was awarded to them by telephone. The contract was never signed.

On appeal Lambert argues that:

1. When a contract is awarded, it must be awarded to the lowest responsible bidder. D. J. Talley & Sons v. City of New Orleans, 303 So.2d 195 (La.App. 4th, 1974).
2. The trial judge erred in failing to find Lambert the lowest responsible bidder.

R.S. 38:2214 gives the Board the power to reject bids, however, in the instant case the Board had already awarded the contract prior to rejecting the bids. In Disposal Systems, Inc. v. Calcasieu Parish School Board, 243 So.2d 915, 920 (La.App. 3rd, 1971) the Third Circuit found that once the contract had been awarded, the appointing authority could not reject the bid. In Disposal, no written contract had been executed. The Third Circuit Court ordered the President of the Calcasieu Parish School Board to sign the contract already awarded.

The instant suit, however, is distinguishable from Disposal. In Disposal, the contract was awarded prior to the institution of suit, whereas in the instant appeal, the contract was “awarded” after judgment so that the Levee Board would be in accordance with the trial court judgment.

The issue before this court is: Did the trial court exceed the scope of its discretion by ordering that the contract be awarded to Donahue? We find that it did. R.S. 38:2214 provides that “. .. The public entity may reject any and all bids.” In D.J. Talley & Sons, Inc. v. City of New Orleans, 303 So.2d 195 (La.App. 4th, 1974) the panel of Judges Samuel, Redmann and Boutall, stated as follows:

"... To require the governing authority to enter a contract simply because it has advertised for bids would certainly destroy its ability to achieve a fair price within the budgeted amount of the project.
When a contract is awarded, it must be awarded to the lowest responsible bidder, but the court has no power to require the acceptance of a bid, and the court recognizes the right of the governing authority to reject all bids. The Supreme Court in the case of Sternberg v. Board of Commissioners, 159 La. 360, 105 So. 372 (1925), in discussing a similar statute stated the following:
‘The case is clearly with the plaintiff on the merits. Section 2 of Act 249 provides that drainage and other public boards ‘“shall meet at the time and place set and in open session shall receive, open and read all bids and shall then and there award said bids to the lowest possible bidder, provided they shall have the right to reject any and all bids and proposals and readvertise for same.” ’ This section makes it the mandatory duty of a public board, at the time the bids are opened. ‘ “Then and there to award said bid to the lowest possible bidder.” ’
‘The only alternative that a public board has under the statute is to reject any and all bids and readvertise for same.’ 105 So. 373.
See also Housing Authority of Opelousas v. Pittman Construction Company, 264 F.2d 695 (5th Cir. 1959).”

Having thus concluded that the trial court abused its discretion in ordering that the contract be awarded to Donahue, we further find that the August 20,1980 action of the Board rejecting all bids must be maintained.

For the reasons discussed, the judgment of the district court is vacated, annulled and set aside.

VACATED, ANNULLED & SET ASIDE.

      . See Donahue v. Board of Levee Commissioners, et al., 407 So.2d 419 (La.App. 4th, 1980).


author: LOTTINGER, Judge.

text:
    Teri Lynn BAKER v. Carolyn S. JONES and her Insurer, Safeco Insurance Companies.
    No. 14372.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Julius F. Harrell and Doris Gates Rankin, Baton Rouge, for plaintiff-appellant Teri Lynn Baker.
    Charles A. O’Brien, III, Baton Rouge, for defendant-appellee Carolyn S. Jones and Safeco Ins. Companies.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by Teri Lynn Baker against Carolyn S. Jones and her insurer, Safeco Insurance Companies, for personal injuries as a result of an automobile accident. A jury rendered judgment in favor of plaintiff for $1,125.00. Plaintiff appealed contesting the amount of the award.

The record reflects that plaintiff suffered injury to her neck and upper back as a result of the accident which occurred on December 1,1978. On December 4 plaintiff consulted Dr. Charles S. Kennon, an orthopedic surgeon, for treatment of her injuries. Dr. Kennon found plaintiff to have a 50 percent restriction in the movement of her neck. X-rays were taken and showed no abnormality in the disc spaces. Dr. Ken-non’s impression was that plaintiff had suffered a cervical or thoracic sprain or strain.

After the initial visit in December, plaintiff consulted Dr. Kennon eight more times over the next seven months. At most of these visits, plaintiff’s major complaints were a lump on the left side of her neck and pain in her neck. On the last visit, June 1, 1979, Dr. Kennon discharged plaintiff, having found that her condition was significantly improved. He concluded that plaintiff would have no permanent disability.

Plaintiff did not again consult a physician until she returned to see Dr. Kennon in January of 1980. During the interim between June 1, 1979, and January of 1980, plaintiff was involved in another accident in August of 1979. When plaintiff returned to Dr. Kennon in January of 1980 she was again complaining of neck pain. Her neck had apparently been doing all right until a few weeks before this visit. During plaintiffs visit of June 1980, Dr. Kennon arranged for her to consult with a neurosurgeon. Dr. Clifford, a neurosurgeon, stated that it was a toss-up as to whether or not plaintiff had a disc injury.

The trial jury was apparently impressed with the fact that plaintiff was not seriously injured in the December 1 automobile accident. At the time of the accident plaintiff was not employed, but subsequently obtained employment for approximately two months. She testified that she left this employment because of personal reasons as well as her neck pain.

Once again we are called upon to determine whether the trier of fact has abused its discretion in an award of general damages. After a thorough and detailed review of the record, we conclude that there has been no abuse, and though this award may seem conservative, it is not so excessively low as to shock our conscience. Hanzy v. Sam, 385 So.2d 355 (La.App. 1st Cir. 1980), writ denied 386 So.2d 357 (La.1980).

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


text:
    Philip L. CENAC, M. D. v. DUPLANTIS MOVING & STORAGE COMPANY, INC. and Highlands Insurance Company.
    No. 14375.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      Joseph G. Kopfler, Houma, for plaintiff and appellee.
    E. Phelps Gay, New Orleans, for defendants and appellants.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit for property damages filed by Philip L. Cenac, M.D., against Duplantis Moving & Storage Company, Inc. (Duplan-tis) and its insurer, Highlands Insurance Company. From a judgment in favor of plaintiff, defendants have appealed.

From the record and the trial judge’s written reasons for judgment, we glean that Dr. Cenac contracted with Duplantis to move a building from a barge onto plaintiff’s property. In the process of lifting and moving the building from the barge, the building was dropped and destroyed beyond repair. The trial court awarded a total of $38,540.00, which award included $3,240.00 for damages to a bulkhead, and $35,300.00 as replacement cost of the building.

In appealing the defendants argue that the trial judge erred in failing to include depreciation of the building in his calculation of damages. The issue of liability is not before the court.

The building in question had been previously used by a drilling company as a crew quarters aboard a drilling barge. Dr. Cenac had acquired the ownership of the building in consideration for the use by a salvage company of a slip and bulkhead owned by Dr. Cenac. The intended use of the building was as an office building for a farm and ranch operation owned by Dr. Cenac in Bourg, Louisiana. The age of the building was undeterminable. Additionally, there was no evidence introduced as to the building’s market value at the time of the accident. The trial judge concluded the building was in “good condition and could certainly for many years serve the purposes for which Dr. Cenac would use it.” Three experts testified as to the replacement cost of the building with a new building. Plaintiff’s expert estimated that it would cost $60,427.66 to build a similar building, whereas each of the defendants’ experts agreed that a new building could be built for $35,000.00.

In making the award for the building, the trial judge in his oral reasons for judgment in denying an application for new trial in part said:

“You see, depreciation as I look at it is merchandise in the hands of the owner over the years that has lost certain value. [Dr. Cenac had only recently acquired ownership to this building.] * * * It served its purposes. * * * So we have got to look to other things in determining the value of the building to Dr. Cenac. True, it was not a new building, but everything that I can recall in the record it was to the effect that it was in good condition and could certainly for many years serve the purposes for which Dr. Cenac would use it. Now, to replace it, to give him something that would be, we’ll say, equal in utility, what he had before, would cost $35,300.00. That’s what it would cost to put him in a position to where he was before to where he would have something to use. * * * Certainly I couldn’t give him the $60,000.00, but the $35,000.00, I felt was the only thing that we had to work with and I could not feel that depreciating the building would put him in a position to where he was before. Certainly it would not. What you are going to come back and say is we are giving him something better than he had before. Well, unfortunately under the law there is no other way we can solve this situation. Something was destroyed. It was something that had the utility, the value of $35,000.00. To give him less than that would be to penalize him for the negligence of someone else, which I can’t do.”

It is clear that the trial judge discarded the use of depreciation in attempting to arrive at a damage award, and instead used a theory which he apparently termed “value of utility.” What the trial judge was apparently saying was that the use of the existing building as to Dr. Cenac had the same value or utility as a brand new building.

The problem with the trial court’s award is that it is not supported in law. The jurisprudence is replete with a plethora of cases holding that where property is destroyed beyond repair and the market value is not ascertainable, the proper measure of damages is replacement cost less depreciation. The most common example today of property damage cases is the automobile accident. Where an automobile has been damaged beyond repair, the most the plaintiff is allowed is the market value of the vehicle before the accident less its salvage value, if any. Bernard v. Fidelity & Casualty Company of New York, 186 So.2d 904, 18 A.L.R.3d 493 (La.App. 1st Cir. 1966). Market value of course takes depreciation into consideration.

It should be apparent that an automobile that is one year old is certainly not worth the same on the open market as a new car. But as to the owner of that car, a vehicle one year old in good working condition has the same utility as a new car. For plaintiffs in these situations, the award is never enough to buy a new car. However, the award is only intended to afford plaintiff the opportunity to buy a similar car in similar condition as plaintiff’s vehicle was immediately prior to the accident.

This court in Davis v. Roberts, 194 So.2d 772, 774 (La.App. 1st Cir. 1967) pointed out that:

“In arriving at the amount of damages to property, our courts have in the past followed generally three approaches. The cost of restoration, if the thing damaged can be adequately repaired. Hayward v. Carraway, La.App., 180 So.2d 758; Lambert v. American Box Co., 144 La. 604, 81 So. 95, 3 A.L.R. 612. The difference in value prior to the damage and the value following the damage. Maryland Casualty Co. v. Rittiner, La.App., 133 So.2d 172. If the value before and after the damage cannot be reasonably determined or if the cost of repairs exceed the value of the thing damaged, the measure of damages to the owner has been the cost of replacement new, less reasonable depreciation. Palmetto Moss Factory v. Texas & P. Ry. Co., 145 La. 555, 82 So. 700; Reisz v. Kansas City Southern R. Co., 148 La. 929, 88 So. 120; Gray v. Security Storage & Van Co., La.App., 26 So.2d 399.

Plaintiff argues that in Coleman v. Victor, 326 So.2d 344 (La.1976) the Supreme Court criticized the three prong test utilized by the Courts of Appeal as summarized in Davis v. Roberts, supra, and specifically held that “no mechanical rule can be applied with exactitude in the assessment of property damages under Article 2315.” We interpret what the court said in Coleman to mean only that a court should not be ironclad bound to some mechanical formula in arriving at a damage award, and that each case must rest on its facts and circumstances. The Supreme Court was not disapproving the approaches previously used, for it then proceeded to award the amount necessary to repair the vehicle damaged in Coleman rather than award the difference between the value of the vehicle prior to the accident and a sum for which it was sold by plaintiff after the accident.

Regardless of how the court arrives at the amount of the damage award, the intent of the law is to place plaintiff in the same position he was in prior to the accident — not in a better position. The approaches mentioned in Davis, supra, are merely a means at arriving at some monetary amount which will compensate plaintiff for the damage he has suffered.

It is clear from the record that the building was damaged beyond repair, no fair market value could be placed on the building immediately prior to the accident, and the difference in value prior to and after the accident, was not determinable. Therefore, the only reasonable approach left to determine plaintiff’s damages is by using replacement cost less depreciation. This method is merely a means of attempting to determine what was the value of the building immediately prior to the accident.

Though trial judges are granted great discretion in determining damage awards, the awards made must be in accordance with law. We know of no cases in Louisiana, nor have we been cited any, which have allowed an award based on the “utility” of the object damaged, thus we find the trial judge in error in his award.

Accordingly, we choose to use the replacement cost less depreciation method of determining the damages suffered by plaintiff, and assess a 20 percent depreciation figure to the building. See Womack v. Travelers Ins. Co., 258 So.2d 562 (La.App. 1st. Cir. 1972) writ refused 261 La. 774, 260 So.2d 701 (1972) wherein we assigned a 10 percent depreciation value to a house in excellent condition.

We use the trial judge’s figure of $35,-300.00 as the replacement value of the building and depreciate same by 20 percent or $7,060.00, for an award of $28,240.00 for the building.

Therefore, for the above and foregoing reasons, the judgment of the trial court is amended to reduce the total judgment to $31,480.00, and as amended it is affirmed at plaintiff-appellee’s costs.

AMENDED AND AFFIRMED.


author: PONDER, Judge.

text:
    Joseph RICHEY v. John HUNTER, et al.
    No. 14381.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      Joseph Richey, in pro. per.
    Joseph H. Macaluso, Jr., Trial Atty., Staff Atty., Dept, of Justice, Baton Rouge, for defendants-appellees John Hunter, Kate B. Bankston, Margaret A. Bolton, Johnny Jackson, Sr. and H. H. Eddington.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the dismissal of his petition for judicial review of the denial of a hearing on his pardon application.

When plaintiff filed an application with the Board of Pardons, it sent him notice that his application had been received and given a docket number and that he would be informed later of the hearing date. Thereafter it notified him that the Board was using its discretionary powers to deny a hearing. Plaintiff filed suit against the Board of Pardons and its members, seeking declaratory judgment, injunctive relief and compensatory and punitive damages. The lower court dismissed the suit on a peremptory exception of no cause of action.

Plaintiff asserts that LSA-R.S. 15:572.4, as amended by Acts 1979, No. 490, allowing the Board of Pardons to adopt its rules for considering clemency applications, violates his constitutional right of due process because the lack of objective standards gives rise to such abuse as racial prejudice, caprice and other similar injustices, that the rule allowing denial of an application without a hearing violates the ex post facto clause of the Federal and State Constitutions, that the Board of Pardons should be governed by the Administrative Procedure Act, and that plaintiff’s First and Fourteenth Amendment rights have been violated.

We affirm.

A pardon, a matter of grace from the state, is a function of the executive branch of government not subject to the limitation or control of other branches. Bryant v. Louisiana State Pardon Board, 378 So.2d 180 (1st Cir. 1979). Article IV § 5 (E) of the Louisiana Constitution gives to the governor the power to grant reprieves upon recommendation of the Board of Pardons. Acts 1979, No. 490 § 1, LSA-R.S. 15:572.6 provides:

“No person shall have a right of appeal from a decision of the board of pardons or the governor regarding clemency.”

Plaintiff attempts to distinguish Bryant in that he was denied a hearing under the discretionary powers of the Board.

To determine if the due process requires a hearing, we must consider the nature of the interest at stake rather than the weight; the person asserting the interest must have a legitimate claim of entitlement rather than an abstract need or desire. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

A prisoner who has been properly convicted has no constitutional or inherent right to a pardon or early release from a valid sentence. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). However, the state may create an expectancy entitled to constitutional protection. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Louisiana has provided only for the possibility of a pardon, not an expectancy. LSA-R.S. 15:572 (A). The Board is given the power to adopt rules and regulations, as necessary, to perform its duty, LSA-R.S. 15:572.3(1), 572.4(A) and 574. A law that imposes no specific criteria or procedural limits on the Board but merely provides for the existence of the power to pardon does not give a prisoner a constitutionally protected right. Connecticut Board of Pardons v. Dumschat, - U.S. -, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981).

Plaintiff claims that the rules passed by the Board enabling it to use its discretionary power to deny a pardon without a hearing are in violation of the ex post facto clause. Louisiana Constitution, Article 1 § 23. United States Constitution, Article 1 § 10.

A statute is considered ex post facto when it is enacted after an offense is committed and alters the situation to the disadvantage of the accused. State v. Sepulvado, 842 So.2d 630 (La.1977). The prohibition is intended to secure substantial personal rights from retroactive deprivation; it does not limit legislative control of remedies and modes of procedure which do not affect matters of substance. Portley v. Grossman, 404 U.S. 1311, 100 S.Ct. 714, 62 L.Ed.2d 723 (1980).

The statute regarding the hearing of a clemency application, LSA-R.S. 15:572.4, as amended, replaced a provision requiring the Board to consider the applications chronologically, to send out reasons for a denied application and to review each denial with any additional evidence at least once.

The change in the law does not increase the punishment imposed or deprive the plaintiff of any substantive rights. Even if no hearing be held, there is no evidence that the Board does not give each application careful consideration. The ex post facto argument is without merit.

We find no reason for requiring the Board of Pardons to comply with all the provisions of the Administrative Procedure Act. LSA-R.S. 49:951 et seq. The denial of the right to judicial appeal of a Board decision is in direct conflict with that Act. LSA-R.S. 15:572.6. The Board is given the power to administer its own regulations and must comply with the Administrative Procedure Act only when adopting rules. LSA-R.S. 15:572.4(A).

The Board of Pardons and its members are not liable for compensatory or punitive damages. Bryant v. Louisiana State Pardons Board, supra; Cruz v. Skelton, 502 F.2d 1101 (5th Cir. 1974).

For these reasons, the judgment is affirmed and costs are assessed to the plaintiff.

AFFIRMED.

      . LSA-R.S. 15:572(A):
      “A. The governor may grant reprieves to persons convicted of offenses against the state and, upon recommendation of the Board of Pardons as hereinafter provided for by this Part, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses.”

      . LSA-R.S. 15:572.3(1):
      “In addition to the other powers, duties, and functions set forth in this Part, the board may:
      (1) Adopt rules and regulations necessary to carry out the provisions of this Part and its duties and functions in connection therewith.”
      LSA-R.S. 15:572.4(A):
      “A. Written rules, regulations and procedures for consideration or clemency applications shall be adopted by the Board of Pardons by January 1, 1980. Such rules, regulations and procedures shall be adopted in accordance with the procedures of R.S. 49:953(A)(1) and (2) and shall become effective upon approval of the governor.”
      LSA-R.S. 15:574:
      “The board of pardons may adopt for its governance such rules as they may deem proper, not contrary to law; provided that the board shall not take up for consideration any application for a pardon, until the district attorney of the parish in which the person applying for the pardon shall have been convicted, shall have been notified and shall have had ample opportunity to attend the session at which said application shall be considered.”

      . Rule 4 Louisiana Board of Pardons, Discretionary Powers:
      “An application may be considered by the Board any time after it is received, but no application will be considered by the Board until it deems the application to be complete.
      In determining which cases are ready to be heard, the Board may, in its discretion, refuse to grant a hearing if an applicant has not served one-fifth (Vs) of his sentence. In cases of life sentences and sentences of forty-five (45) years or longer, the applications may be heard at the discretion of the Board. Additionally, the Board may refuse a hearing to an applicant because of his past criminal record or his poor conduct while incarcerated. However, if good cause is shown, nothing in this article shall prevent the Board from hearing the types of cases mentioned hereinabove.
      In any matters not specifically covered by these rules, the Board shall have discretionary powers to Act.”

      . La.Const., Art. 1 § 23:
      “No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be enacted.”

      . U.S.Const., Art. 1 § 10:
      “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
      ******

      . LSA-R.S. 15:572.4(B):
      “Before considering the application for pardon of any person the board shall give written notice, at least thirty days prior to the hearing, to the district attorney and sheriff of the parish in which the applicant was convicted, to the applicant and any other interested persons of the date and time at which the application will be heard and considered. The district attorney and any other persons who desire to do so shall be given a reasonable opportunity to attend the meeting and be heard.
      Added by Acts 1975, No. 593, § 2, eff. July 1, 1975. Amended by Acts 1979, No. 490, § 1.”

      . In Smith v. Dunn, 263 La. 599, 268 So.2d 670 (1972), the Supreme Court denied relief in similar claims against the Parole Board.


text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. TEXACO, INC., et al.
    No. 14382.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Writ Granted Jan. 25, 1982.

      Victor Sachse, III, Baton Rouge, for plaintiff.
    David Dugas, New Iberia, for Texaco. John E. Conery, Franklin, Robert Peyton, New Orleans, for McKerall Oil Co.
    Dale H. Hayes, Morgan City, for Ama Siracusa, et al.
    Nicholas Gaehassin, Jr., Lafayette, for Matile Dragna, et al.
    Phillip E. Henderson, Houma, for Lucien Cutrera.
    Before ELLIS, LOTTINGER, and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by South Central Bell Telephone Company (Bell) against Texaco, Inc. and several other defendants for damages to underground cables caused by leaking gasoline. From a judgment maintaining an exception of prescription, Bell has appealed.

Suit was filed on October 16, 1975. All parties agreed that Bell had notice of damage to its telephone cables prior to one year of filing of suit.

Bell maintains a nine duct conduit containing several telephone cables which run along Brashear Avenue in Morgan City. The splices for these cables are located in a manhole near the corner of Brashear and Sixth Street. The manhole is used as an access to service upon the splices, cables and wire pairs. Texaco and Shell service stations are located at the intersection of these two streets. Bell claims that leaks from the underground storage tanks of these stations caused an accumulation of gasoline in the manhole. Bell further alleges that this accumulation of water and gasoline in the manhole caused the deterioration of polyethylene sheaths covering Bell’s telephone cables. As a result of this deterioration, air pressure maintained within the cables caused the softened sheaths to rupture, allowing water to enter the cable and thereby interrupt service to customers. Bell was forced eventually to totally replace all of the cable in the conduit line along Brashear Avenue. Bell filed suit for the repair cost and estimated cost of replacement of the cable.

As early as November of 1971, service employees of Bell began to notice an accumulation of water and gasoline in the manhole at Sixth and Brashear. The gasoline in the manhole necessitated the replacement of one cable in December of 1972. Bell began the practice of pumping gasoline out of the manhole on a month to month basis in 1973 and 1974. This pumping was done to prevent further gasoline damage to the cable in the conduit run along Brashear Avenue. In February of 1974, an additional manhole near the one in question was built by Bell in order to prevent gasoline contamination within the duct runs from occurring in other areas. During the latter part of 1974, the Bell plant manager in Morgan City determined that all of the cable in the subject manhole and the duct runs between Sixth and Seventh Streets along Brashear had been damaged beyond repair, and that total replacement of the cable was neces-saiy.

The trial court held that gasoline slowly consuming polyethylene sheath cables over an extended period of time constituted a continuing tort, citing Devoke v. Yazoo & M.V.R. Company, 211 La. 729, 30 So.2d 816 (1947). Thus the trial court concluded that the fact that Bell had notice as early as 1971 that gasoline in the manhole was damaging its cables was not controlling. Citing D’Albora v. Tulane University, 274 So.2d 825 (La.App. 4th Cir. 1973), writs denied, 278 So.2d 504 and 505 (La.1978), the trial judge held that where there is a continuing tort present there is no multiplicity of causes of action and of prescription accrual dates; there is only one cause of action and one prescription period which runs from the date of the last part of the damage done. The trial judge found as fact that the last part of the damage to the cable was completed in September of 1974, more than one year prior to the filing of suit.

On appeal, plaintiff-appellant Bell alleges the following specifications of error:

1. while the trial court correctly found that the continuing leakage of gasoline and exposure of the cables to the gasoline constituted a continuing tort, the court erroneously concluded prescription commenced running while gasoline continued to contaminate the cables, and

2. assuming arguendo that the trial court was correct in its application of law, the trial court committed error in finding that damage was complete more than a year before suit was filed.

ERROR NO. 1

Bell argues that under the theory of continuing tort, prescription does not commence to run as long as the cause of the damages remains unabated. Thus, Bell contends prescription on its claim for damages to the underground cables could not have begun to run as long as gasoline leaks continued to get into the conduit system.

The “continuing tort” theory as an exception to La.C.C. arts. 3536 and 3537 was discussed by the Supreme Court in Devoke v. Yazoo & M.V.R. Co., supra. In Devoke, the Supreme Court held that an action by property owners against a railroad for damages resulting from the operation of terminal facilities in such a way that dense smoke, soot, cinders and ash were dispersed was not barred by prescription, since the cause of the injury was a continuous one giving rise to successive damages day to day. This court followed Devoke in Landry v. Pierre Part Natural Gas Company, Inc., 344 So.2d 412 (La.App. 1st Cir. 1977). In D’Albora v. Tulane University, supra, the Fourth Circuit held that in the context of a continuing tort, prescription runs from the date the last part of the damage is done. The reasoning is obvious; once the damage has been done, there is no justifiable reason not to commence the running of prescription.

The basis for Bell’s contention that prescription did not commence as long as the gasoline leak continued is that the victim of a continuing tort should not be burdened by the running of prescription as long as the wrongful conduct of the offender continues. Bell’s claim for damages is for the cost of repairing and replacing gasoline damaged cables. But, once damage occurred necessitating total replacement of the cables, gasoline seepage could no longer be considered an offending act causing successive day to day damages. The fact that gasoline leakage continued into the Bell manhole and conduit is immaterial since the cables had already become ruined. A continuing tort contemplates a day to day offending act causing day to day damages. Once the claimant has incurred all of the damage it will eventually suffer, then vis-a-vis that claimant, the act is no longer offending.

This Court holds, in accordance with D’Albora, that in the context of a continuing tort, prescription runs from the date the last part of the damage is done. Thus, we agree with the trial judge that the factual determination as to when final damage by gasoline was done to the Bell cable is the controlling factor.

Bell cites Wilson v. Hartzman, 373 So.2d 204 (La.App. 4th Cir. 1979), writ refused 376 So.2d 961 (1979) in support of its contention that in a continuing tort situation, prescription does not commence to run until the continuing cause of the damage is abated. Wilson does not conflict with our holding in this case. In Wilson, at no identifiable time could the plaintiff have been said to have sustained silicosis from the wrongful exposure to silica dust. Thus, each daily exposure was a continuing wrongful act.

Additionally, our holding does not, as argued by plaintiff-appellant, render continuing tort an irrelevant category. There is ample evidence in the record to indicate that Bell had knowledge of damage to its cable as early as November of 1971. In fact, as early as 1972, Bell had to replace an entire cable whose sheath was ruined by gasoline contamination. Thus, were this court to hold that gasoline consuming polyethylene sheathed cables was not a continuing tort, then Bell’s claim for damages would have long since prescribed.

For these reasons, we find this assignment of error to be without merit.

ERROR NO. 2

Bell argues that the trial judge erred in concluding that the last part of the damage done by the continuing tort was consummated by September of 1974, despite the continuance of leaks from the Texaco tanks at least as late as October 17, 1974, and from the Shell tanks until after suit was filed, and despite the continued functioning of the cable until after suit was filed. Bell argues that this holding by the trial judge was not supported by the evidence. We disagree.

The trial judge in his written findings of fact and reasons for judgment relied heavily on the deposition of Herbert Leitz, the plant manager of Bell in Morgan City. The trial judge found as fact that Leitz’s decision to replace all of the cables in the conduit was made in September of 1974. Though the cables were still functioning and would continue to function, the polyethylene sheaths were damaged beyond repair so as to mandate a decision, at that point in time, that the cables would have to be replaced.

Our duty as an appellate court is to carefully study and review the entire record to determine “that the record establishes that the finding [of fact] is not clearly wrong (manifestly erroneous).” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). This we have done and are convinced that the “evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding.” The “evaluations and inferences” of the trial court are reasonable. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Thus we find no error in the trial judge’s conclusion that the damage was consummated as of September of 1974.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at the plaintiff-appellant’s cost.

AFFIRMED.

      . Named as defendants in addition-to Texaco, Inc. are Shell Oil Company, Billups Bayou Oil Corporation, Matile Dragna, Mrs. Mary Drag-na, Sam Sircusa, Joseph Sircusa, Matt Pictag-gio, Pictaggio’s Estate, Jack Williams, and Lucien Cutrera. All defendants are alleged to be either the owners, operators, lessors and/or lessees of the service stations involved, or the owners, lessors, and/or lessees of the land upon which the service stations are located. By supplemental petition McKerall Oil Company, Inc., the Shell distributor in Morgan City, was made a defendant.

      . Shell, Billups, Matt Pictaggio, Pictaggio’s Estate and Jack Williams were dismissed by motion of the plaintiff. All of the remaining defendants filed the peremptory exception of prescription.

      . Articles Nos. 3536 and 3537 provide:
      Art. 3536. Other actions prescribed by one year. The following actions are also prescribed by one year:
      That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.
      That which a possessor may institute, to have himself maintained or restored to his possession, when he has been disturbed or evicted. That for the delivery of merchandise or other effects, shipped on board any kind of vessels. That for damage sustained by merchandise on board ships, or which may have happened by ships tunning foul of each other.
      Art. 3537. Commencement of prescription under Article 3536. The prescription mentioned in the preceding article runs:
      With respect to the merchandise injured or not delivered, from the day of the arrival of the vessel, or that on which she ought to have arrived.
      And in the other cases from that on which the injurious words, disturbance or damage were sustained.
      And where land, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof. (Amended by Acts 1902, No. 33).