text:
    Fred C. BONSACK, Jr., et al., Plaintiffs-Appellants, v. KEYSTONE SHIPPING COMPANY, et al., Defendants-Appellees.
    No. 82-399.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for plaintiffs-appellants.
    Terriberry, Carroll, Yancey & Ferrell, Rufus C. Harris, III and D. Kirk Boswell, New Orleans, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Fred C. Bonsack, Jr., a harbor pilot with the Lake Charles Pilots Association, brought suit pursuant to the Jones Act, 46 U.S.C.A. § 688, and General Maritime Law against Keystone Shipping Company, and its insurer, to recover damages for permanent disability allegedly sustained as a result of an injury incurred while boarding the defendant’s vessel, the M/V “Edgar M. Queeny.” Plaintiff’s motion for a new trial was denied. Plaintiff appealed. We find reversible error and remand for a new trial.

FACTS

The plaintiff is a harbor or bar pilot for vessels at the Port of Lake Charles. His duties consist of boarding ocean going vessels, incoming and outgoing, and advising the masters of these vessels how best to negotiate the ship channel which connects the port and the Gulf of Mexico. When the plaintiff has to board incoming ships he must board the vessel in the open gulf. The plaintiff is taken to the vessel on a launch owned by the Pilots Association and usually boards the vessel by means of a Jacobs Ladder (a rope ladder) on the side of the ship.

On October 3, 1978, the plaintiff was assigned to navigate the “Queeny” into Lake Charles. The plaintiff and an apprentice pilot traveled to the “Queeny,” which was located several miles out in the Gulf of Mexico, aboard the pilot boat, “Lake Charles Pilot.” The apprentice boarded the “Queeny” and was followed by plaintiff. The boarding was accomplished by climbing a Jacobs Ladder which hung from the deck of the “Queeny” down to deck level of the pilot boat.

While ascending the ladder plaintiff experienced a shortness of breath, fatigue and some pain. Plaintiff stopped climbing for a while to alleviate the problems. Afterward, he proceeded to the deck of the “Queeny” where he continued to rest for some time. The plaintiff then went to the wheelhouse of the “Queeny” and supervised the movement of the “Queeny” as the apprentice brought the ship into port. After the ship was docked the plaintiff returned to his home. Being unable to rest and still short of breath, plaintiff was taken to a local hospital emergency room by his wife.

Dr. George Anderson, an internist and plaintiff’s regular physician for several years, saw the plaintiff at the hospital. Dr. Anderson listed plaintiff’s “chief complaint” as shortness of breath. Based on a brief examination and a conversation with plaintiff, Dr. Anderson indicated on plaintiff’s hospital record that the plaintiff’s pre-exist-ing allergies had worsened over the past two months. Dr. Anderson diagnosed plaintiff’s problem as allergic rhinitis. This condition causes some lung congestion.

Dr. Anderson saw plaintiff the following day and, after a more thorough examination, changed his diagnosis to congestive heart failure (CHF). Plaintiff remained hospitalized for several days for treatment. His symptoms of shortness of breath subsided. After further tests, Dr. Anderson was unable to determine the cause of the CHF. Dr. Anderson then referred the plaintiff to Dr. Homer L. Beazley, a cardiologist in Houston, Texas, for further invasive testing to determine the cause of the CHF. After conducting tests on the plaintiff, Dr. Beaz-ley diagnosed the cause of plaintiff’s CHF as cardiomyopathy which is a disease of the heart. Dr. Beazley restricted plaintiff’s physical activity; the plaintiff has not worked as a pilot since the episode on the ladder. Plaintiff was hospitalized for several days in Houston.

The plaintiff brought suit alleging that he was damaged and suffered disability as a result of a heart attack, suffered on the ladder of the “Queeny,” brought about by the defendant’s negligence in not following Coast Guard regulations requiring certain types of boarding ladders for pilots and the unseaworthiness of the “Queeny” based on the absence of this special “accommodation” ladder.

After trial the trial judge submitted ten special interrogatories to the jury for determination. The first interrogatory was as follows:

“1. Did Fred Bonsack, plaintiff, suffer damages as a result of an injury on the boarding ladder of the S.S. EDGAR M. QUEENY on October 3,1978?
YES- NO-
If your answer to Question No. 1 is ‘no’, proceed no further.
If your answer is ‘yes’, go to Question No. 2.”

The jury answered the first interrogatory “No” and, as instructed, none of the remaining interrogatories were answered. The jury returned the interrogatory form to the judge. Plaintiff appealed from a dismissal of his suit.

Three issues are presented on appeal for determination: '

(1) Whether the jury committed error in its conclusion that plaintiff did not suffer damages as a result of an injury incurred while boarding the “Queeny;”
(2) Whether the trial judge committed error in his response to a question from the jury; and
(3) Whether the trial judge committed error in overruling plaintiff’s objection to defendant counsel’s closing argument.

Due to our disposition of the first issue we do not deem it necessary to address the remaining issues.

WHETHER PLAINTIFF WAS DAMAGED AS A RESULT OF THE BOARDING OF THE “QUEENY.”

As we approach this issue we must note that the standard of review by the Louisiana appellate courts in maritime cases is governed by federal standards of review. Under the federal standard, a jury finding in a maritime case will not be disturbed on appeal unless there is no reasonable evidentiary basis for the jury’s conclusion. Rains v. Diamond M. Co., 396 So.2d 306 (La.App. 3rd Cir.1981), writ ref’d, 399 So.2d 623 (La.1981), cert. den., 451 U.S. 1015, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1981).

With this principle in mind, we set about our task of determining whether the jury had a reasonable evidentiary basis for concluding that plaintiff suffered no damage as a result of his climb of the ladder in question.

Plaintiff testified that before the accident he had some occasions of shortness of breath but it had not interfered with his work. He attributed the problem to his allergy condition. He stated that the shortness of breath, fatigue and some pain experienced by him as he climbed the ladder on October 3, 1978, was more severe than he had previously experienced.

Plaintiff was examined by three physicians after this occurrence. In addition to Dr. Anderson of Lake Charles, and Dr. Beazley of Houston, Dr. John Phillips, a cardiologist of New Orleans, examined plaintiff.

The medical testimony evolves principally around plaintiff’s physical condition prior to the incident and the possible effects of the exertion of the climb upon the pre-existing condition of cardiomyopathy (disease of the heart); i.e., whether the pre-existing condition was aggravated by the climb thereby causing the plaintiff’s disability to perform his duties.

We are not called upon to decide the extent of plaintiff’s disability as a result of the climbing incident; we are to decide only the narrow issue of whether the evidence reflected that plaintiff suffered some damage as a result of or caused by the climb in question.

The testimony of the two cardiologists was consistent on the point that the exertion of the climb of the 40-foot ladder intensified the symptoms of plaintiff’s heart condition. Dr. Beazley testified that plaintiff’s heart condition “definitely was suddenly intensified with an event of sudden excessive use” by climbing the ladder. He further stated that the climb intensified the symptoms of plaintiff’s condition to the extent that it led plaintiff to seek medical attention which ultimately led to the diagnosis of the heart disease.

Dr. John Phillips testified that the climb of the ladder by plaintiff caused a temporary aggravation of the plaintiff’s symptoms. Dr. Phillips defined “temporary aggravation” as “the pre-existing condition is worsened or made more severe for a time with no residual alteration of the underlying condition and without leaving any continuing impairment beyond that time.”

Dr. Anderson went further than the cardiologists. He was of the opinion that the exertion of plaintiff’s climb aggravated the plaintiff’s heart condition and such aggravation contributed to his disability.

This brief review of the medical testimony brings us to the conclusion that the jury did not have a reasonable evidentiary basis for its conclusion that plaintiff did not suffer damages as a result of an injury on the boarding ladder of the “S.S. Edgar M. Queeny” on October 3,1978. It is undisputed that plaintiff incurred at least a sudden intensification of symptoms of his heart condition which intensification was caused by the physical exertion needed to climb the ladder. This sudden intensification of symptoms is an injury that is measureable in damages. We do not decide the extent of the injury or the amount of damages. Neither the extent of injury nor the amount of damages is presented for answer by this interrogatory.

We find that the jury committed manifest error when it answered the interrogatory in the negative. None of the remaining interrogatories were considered or answered by the jury as a result of the answer to the first interrogatory. Under these circumstances, we cannot, on appellate review, make any determination of the answers to the remaining interrogatories. The judgment of the trial court must be reversed and set aside; the suit remanded, and a new trial ordered.

For these reasons the judgment of the trial court is reversed and set aside. The case will be remanded for a new trial not inconsistent with the views expressed herein. Costs of this appeal are assessed to the defendants-appellees.

REVERSED AND REMANDED.

APPENDIX

Attachment of list of interrogatories as designated by Footnote (1).

“1. Did Fred Bonsack, plaintiff, suffer damages as a result of an injury on the boarding ladder of the S.S. EDGAR M. QUEENY on October 3,1978?

YES- NO-

If your answer to Question No. 1 is ‘no’, proceed no further. If your answer is ‘yes’, go to question No. 2.

2. Was Captain Fred Bonsack a seaman who was employed by the S.S. EDGAR M. QUEENY?

YES- NO-

If your answer to Question No. 2 is ‘no’, skip Questions No. 3 and 4 and proceed to Question No. 5. If your answer to No. 2 is ‘yes’, proceed to Question No. 3.

3. Was Keystone Shipping Company, its masters, agents or servants, negligent and, if so, did this negligence play any part, no matter how small, in bringing about Captain Fred Bonsack’s injury?

YES- NO-

4. Was the S.S. EDGAR M. QUEENY unseaworthy and, if so, was such unseaworthiness a legal cause of Captain Fred Bonsack’s accident and injury?

YES- NO-

5. In the alternative, was the Keystone Shipping Company, its masters, agents or servants, negligent and, if so, was that negligence a legal cause of plaintiff’s injury?

YES- NO-

6. Was Captain Fred Bonsack negligent and, if so, was his negligence a legal cause of the accident and injury?

YES- NO-

7. If you have found Captain Fred Bonsack negligent, what percentage did this negligence contribute in his accident and injury?

-%

8. If you have found Keystone Shipping Company at fault, what percentage did this fault contribute to Captain Bonsack’s injury?

-%

9. What is the total amount of damages sustained, if any, by Captain Fred Bonsack as a result of his accident and injury?

$-

10.Is Captain Fred Bonsack entitled to punitive damages against Keystone Shipping Company as owner of S.S. EDGAR M. QUEENY?

YES- NO-

If yes, what is the amount of punitive damages due?

$- ”

      . A list of these interrogatories is attached to this opinion.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    The ESTATE OF Claude P. BOUDREAUX v. Anthony R. VERDIN. The ESTATE OF Claude P. BOUDREAUX v. Curtis VERDIN.
    No. 82 CM 0901.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1982.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is a consolidated suspensive appeal of judgments of eviction obtained by the Estate of Claude P. Boudreaux against Anthony R. Verdin and Curtis Verdin. The Estate of Claude P. Boudreaux filed a motion to dismiss the appeal as a suspensive appeal because the answer to the eviction rule did not set forth an affirmative defense under oath of defendants as is an underlying requisite to perfecting a suspen-sive appeal under LSA-C.C.P. art. 4735.

LSA-C.C.P. art. 4735 reads as follows:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”

An affirmative defense in an eviction proceeding must be pleaded under oath personally sworn to by defendant in order to permit the subsequent taking of a sus-pensive appeal by defendant. Brewer v. Shiflett, 198 So.2d 704 (La.App. 1st Cir.1966). At trial on the eviction rule, defendants argue, defendants testified under oath that defendants either owned or possessed the premises in question, and their testimony under oath should meet the requirements of LSA-C.C.P. art. 4735. (The record does not contain a transcript of testimony.) We find it difficult to state that there is no merit in defendants’ position, but we are persuaded that the equities support the prevailing weight of the jurisprudence which holds that defendants’ testimony at trial of the eviction rule does not suffice. McMillan v. Chauvin, 281 So.2d 181 (La.App. 4th Cir.1973), writ denied 283 So.2d 770 (La.1973). Thus, the suspensive appeal must be dismissed.

The jurisprudence requires that although an appeal may be dismissed as sus-pensive, it must be considered as devolutive, if the appeal was taken within the delays for taking a devolutive appeal. See Aucoin v. Williams, 291 So.2d 504 (La.App. 3d Cir.1974). Here, the appeal was taken one day after judgment, and thus meets the requirements of LSA-C.C.P. art. 2087, the article which provides the delay for taking a devol-utive appeal.

Accordingly, the appeal is dismissed as a suspensive appeal, but maintained as a de-volutive appeal.

SUSPENSIVE APPEAL DISMISSED.

EDWARDS and SHORTESS, JJ„ concur.


author: CIACCIO, Judge. SCHOTT, Judge,

text:
    F & F TRANSFER, INC. v. Sam TARDO, d/b/a Tardo’s Marine and Diesel Service.
    No. CA 0074.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 3, 1983.

      DeMartini, LeBlanc & D’Aquila, Alvin A. LeBlanc, Jr., Kenner, for appellant.
    Sam J. Tardo, in pro. per.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

F & F Transfer, Inc. filed suit against Sam Tardo, doing business as Tardo Marine and Diesel Service for the return of its diesel truck and for damages for the loss of profits resulting from its inability to use the vehicle. The trial court rendered a default judgment against the diesel repair service, awarding the plaintiff the return of its vehicle, but denying damages to the plaintiff. The plaintiff appeals from that portion of the judgment which denied damages. The defendant filed an answer to the plaintiff’s motion for appeal wherein he attacked the validity of the trial court judgment. We sustain the judgment of the trial court and affirm.

The two issues presented on appeal are: (1) Is the trial court’s default judgment valid? and (2) Did the trial court err in refusing to award the plaintiff damages for the loss of the use of its vehicle?

The facts are as follows:

In May, 1980, F & F Transfer, Inc. brought a white compact diesel truck to the defendant for repairs. The vehicle was used by the plaintiff in its drayage business. The repairs were delayed and on October 15, 1981 a letter was sent by plaintiff, through counsel, to the defendant making demand for work to be completed within thirty (30) days of the date of the letter, with an agreement that $2,700 would be paid for the work, in three (3) equal monthly installments of $900 each. The repaired vehicle was not returned to the plaintiff. On December 8, 1981 plaintiff’s attorney again made formal demand, by certified mail for return of the vehicle by November 16, 1981 and gave notice of his intention to file suit for damages if the demand was not met. The vehicle was not returned and this suit resulted.

Validity of the Judgment

The appellee argues, by way of answer to the appeal, that the trial court judgment is invalid. He reasons that, in the absence of the sheriff’s return in the record, there is no proof of personal service and the court was without jurisdiction over this matter.

Our review of the record indicates that the sheriff’s return was in fact absent from the record when it was lodged on appeal. However, there is evidence that the return was present in court and offered into evidence in support of the confirmation of default judgment. (TR.18). Accordingly, this document has been secured and placed in the record. It reflects personal service on the defendant on January 26, 1982. We are thus satisfied that the plaintiff has complied with the requisites of Code of Civil Procedure Article 1702, and a valid judgment, by default, was rendered on April 13, 1982.

Damages

The appellant argues that he presented a prima facie case on the issue of damages, thus should be awarded $12,898 or alternatively, some sum of damages.

The findings of the trial court are entitled to great weight and will not be overturned, absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1979); Canter v. Koehring, 283 So.2d 716 (La., 1973); Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La., 1977); Johnson v. Alexander, 406 So.2d 1378 (La.App., 3rd Cir.1982). There is a presumption that the trial court’s judgment is correct, thus the burden rests with the appellant to prove to the contrary. Gaudet v. Berry, 307 So.2d 767 (La.App., 1st Cir.1975); Jameson v. State Farm Ins. Co., 304 So.2d 85 (La.App., 3rd Cir., 1974). In determining whether there has been an abuse of discretion in making an inadequate damage award, the evidence must be viewed in a light which is most favorable to the defendant. Wilson v. Aetna Casualty & Surety Co., 401 So.2d 500 (La.App., 2nd Cir., 1981).

In the present case, the trial judge refused to award damages to the plaintiff and this finding is entitled to great weight.

The plaintiff’s petition alleges a cause of action in tort and contract. It is unclear whether the trial judge found the action to be in tort or contract as no written reasons for judgment were given. However, under either theory of the case, the trial judge correctly concluded that the plaintiff did not bear his burden of proving damages.

In an action for breach of contract the plaintiff may recover damages for proven losses. C.C. Art. 1930. Meador v. Toyota of Jefferson, Inc., 322 So.2d 802 (La.App., 4th Cir., 1975), app. other grounds, 332 So.2d 433 (La., 1976). In such cases, the usual measure of damages is the cost of a rental vehicle less the cost of operation. See: Henry Waters Truck & Tractor Co., Inc. v. Reian, 277 So.2d 463 (La.App., 1st Cir., 1973), writ den. 279 So.2d 206. Where a rental substitute was not obtained by the plaintiff, he must show, with reasonable certainty, his pecuniary loss in order to recover damages. Folds v. Red Arrow Towbar Sales Co., 378 So.2d 1054 (La.App., 2nd Cir., 1979); Meador v. Toyota of Jefferson, supra.

The allowance of loss of profits as an element of damages is more .liberal in actions purely in tort, as opposed to actions for breach of contract. See: C.C. Art. 2315. Shreveport Laundries v. Red Iron Drilling Co., 192 So. 895 (La.App., 2nd Cir., 1939). In such cases, the loss of profits is recoverable as an element of damages, if they are proven with reasonable certainty. Mire v. Timmons, 155 So.2d 265 (La.App., 2nd Cir., 1963); Jenkins v. Audubon Insurance Co., 110 So.2d 221 (La.App., 1st Cir., 1959). That is, the plaintiff must show that the loss of profits is more probable than not. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971).

A claim for loss of profits will not be supported by mere estimates of loss. Shreveport Laundries v. Red Iron Drilling Co., supra. This is especially true in those cases in which corroborative evidence is shown to be available and is not produced. Peoples Moss Gin Co., Inc. v. Jenkins, 270 So.2d 285 (La.App., 3rd Cir., 1972). Although the absence of independent corroborative evidence is not always fatal, the lack of even a minimal degree of detail and specificity in the plaintiff’s testimony, regarding the issue of lost profits, would preclude recovery of this item of damages. Casadaban v. Bel Chemical & Supply Co., Inc., 322 So.2d 854 (La.App., 1st Cir., 1975).

In this case plaintiff alleged in its petition that the defendant’s actions caused plaintiff to suffer damages because “plaintiff has been forced to rent and continue to rent replacement vehicles at a cost of $20,-000.” However, on confirmation of the default, plaintiff offered no evidence to support its claim of rental expenses, nor proof that there was work to be performed by the subject truck, nor any explanation for its failure to rent substitute vehicles. Instead, plaintiff attempted to prove a loss of profits by a mathematical formula.

The plaintiff’s president testified that he consulted with his bookkeeper to determine the loss of profits caused by the loss of ,the use of the truck. He stated that based upon this discussion he considered the revenue derived from the vehicles in the fleet, less the cost of operating the vehicles, in order to arrive at a figure which represented the profits per day for each vehicle. He further stated that the computation covered the time period from November, 1981 until the date of trial and the sum total loss was computed to be $12,898.89.

The president of the plaintiff company did not speak from personal knowledge, rather, his testimony was based upon hearsay, that is, an alleged conversation with his bookkeeper. The bookkeeper did not testify and plaintiff failed to produce any documentary corroborative evidence, business records, profit and loss statements or business tax returns to substantiate the claim of loss of profits. Business records were available to plaintiff’s bookkeeper and should have been placed in evidence. In this regard the matter is distinguishable from the eases of Fold v. Red Arrow Tow-bar Sales Co., supra and Southern Plastics Specialties Inc. v. Dixie Brewing Co., 399 So.2d 643 (La.App., 4th Cir., 1981); which appellant cites as authority for his position that he should have been awarded damages for loss of profits. The plaintiff’s testimony on the issue of loss of profits was contrary to the allegations in its pleadings and was speculative in nature. Viewing the evidence in the light most favorable to the defendant, we find that the trial judge did not commit manifest error in refusing to award the plaintiff damages for loss of profits. Accordingly, the judgment of the trial court is affirmed. Each party shall bear his respective cost for this appeal.

AFFIRMED.

SCHOTT, J., dissenting with written reasons.

SCHOTT, Judge,

dissenting:

After its demand for its vehicle was ignored by defendant it became necessary for plaintiff to file a suit in order to recover it. While plaintiff is not entitled to the amount of damages it claims the trial court should have awarded some damages as in Folds v. Red Arrow Towbar Sales Co., 378 So.2d 1054 (La.App. 2nd Cir.1979); Henry Waters Truck & Tractor Co., Inc. v. Reían, 277 So.2d 463 (La.App. 1st Cir.1973); and Peoples Moss Gin Co. v. Jenkins, 270 So.2d 285 (La.App. 3rd Cir.1972).

In the latter case and in Casadaban v. Bel Chemical & Supply Co., Inc., 322 So.2d 854 (La.App. 1st Cir.1975) the court reduced quantum because of the weakness of plaintiff’s evidence but plaintiffs were awarded something in both cases.

I would either make an award or remand the case to the trial court for this purpose.


author: CIACCIO, Judge.

text:
    MARMEDIC, INC. v. INTERNATIONAL SHIP MANAGEMENT & AGENCY SERVICES, INC.
    No. CA 0098.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 3, 1983.
    Philip A. Fant, Leach & Paysse, New Orleans, for appellant.
    Hall, Lentini, Mouledoux & Wimberly, William W. Hall, Metairie, for appellee.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

The plaintiff, Marmedic, Inc., provided medical services to an injured seaman at the request of the defendant, International Ship Management & Agency Services, Inc. Plaintiff was not paid for the services and filed this suit to recover from defendant the amount owed plus interest and attorney’s fees. From a judgment in favor of the plaintiff the defendant has appealed. We affirm, except for the award of attorney’s fees which is set aside.

The amount of the claim and the rendering of the services was stipulated by the parties. At the trial, although it was not affirmatively pleaded, defendant claimed that it was the agent of a disclosed principal, viz., the M/V Scorpion I (and its owners), the injured seaman’s ship. Defendant contends that as agent it was not and cannot be personally liable.

The errors assigned and the issues presented by the defendant on appeal fall into two categories. Defendant argues that the trial court erred in finding it acted as an independent contractor and not as an agent. Additionally, defendant finds error in the trial court’s refusal to enforce the parol evidence rule prohibiting the admission and consideration of evidence tending to prove an oral promise to pay the debt of another.

Mr. Jay Smith, the president and only shareholder of Marmedic, was the only witness at trial. He testified that employees of defendant initially contacted Marmedic requesting immediate medical services for an injured seaman. Marmedic provided the requested medical services and the seaman received all of the services for which plaintiff now seeks to be paid.

During the course of treatment Marmedic inquired of defendant as to who would be responsible for the bill. Mr. Smith testified that although defendant’s employees guaranteed that the bill would be paid, they failed to provide a written guarantee despite at least six requests for same. Marmedic denies it was informed of any agency status of defendant, and, although plaintiff was aware of the name of the ship, the identity of the ship’s owner was never disclosed.

Defendant argues that Marmedic’s president, Mr. Smith, was well experienced in the local maritime industry and knew or should have known that defendant was acting as an agent for the ship and its owner.

The trial court stated its conclusions as follows:

The Court is of the opinion that the Defendant entered into a verbal contract with Plaintiff to supply medical services for a price to the injured seaman, and due to the exigency of the circumstances and Plaintiff’s reliance on Defendant’s assurances that Plaintiff would be paid, Plaintiff did, in fact, perform and provide said medical services.
It is clear to the Court that the relationship between the parties herein is more in the nature of an independent contractor whose business is to procure goods and services for a fee for various ships in port, rather than a principal-agent relationship, particularly since there was no evidence presented demonstrating any control over the Defendant nor the Plaintiff exercised by the ship owner, which right to control is the most important factor considered in determining the distinction between an independent contractor and an agent. R.S. Electric & Armature Works v. George Engine Co., Inc., 346 So.2d 782 [783] (La.App. 1st Cir., 1977) Therefore, Defendant is liable to Plaintiff for this indebtedness.
Even assuming the above reasons are incorrect, there are other grounds on which the Defendant can be held liable. The unrebutted testimony of Plaintiff’s president shows that on several occasions more than one employee of Defendant assured and promised Plaintiff that its bill would be paid. The witness stated that but for these assurances, he would not have continued to render services to the injured seaman.
The Court feels that Defendant’s argument that such promises or guarantees to pay the debt of a third party must be in writing is untenable. First of all, assuming the Court is correct that the Defendant is an independent contractor, it was only guaranteeing payment of its own indebtedness. And, secondly, assuming that this Court is in error regarding the business relationships herein, these assurances were indeed oral promises to pay the debt of a third party, this Court is still of the opinion that the Defendant is personally obligated in view of the pecuniary motive and interests of Defendant. The cases cited to this Court in Plaintiff’s memorandum point out LSA-C.C. Article 2278 is subject to the exception that one may orally bind himself to pay the debt of another under circumstances as in the case before this Court. Paul M. Davison Petroleum Products v. L.T. Brown Contractor, Inc., 356 So.2d 572 (La.App. 2nd Cir., 1978); Powell Lumber Company v. AFCO Corporation, 288 So.2d 697 (La.App. 2d Cir., 1974).

The party claiming to have purchased as agent must establish that this capacity was made known to the seller, and also that an actual agency relationship existed by evidence beyond his own assertion. Absent disclosure of a special status, the law presumes that a person is acting in his individual capacity and holds him personally liable for his actions. The person who claims he is acting as an agent bears the burden of proof at trial to show his special status. J.T. Doiron, Inc. v. Lundin, 385 So.2d 450 (La.App. 1st Cir., 1980); J.D. LeBlanc, Inc. v. Lomar Construction Company, et al, 194 So.2d 426 (La.App. 4th Cir.1967).

At trial, defendant presented no evidence but relied upon cross-examination of Mr. Smith to establish its case. Mr. Smith testified that he was uncertain of defendant’s status, but rendered the requested services because of the assurances given that the bill would be paid. Defendant called no witness and offered no evidence .to rebut this testimony. No evidence was presented at trial that an actual agency relationship existed between defendant and a principal. Even at this point the record contains nothing more than defendant’s own assertion that there exists an agency relationship between defendant and the M/V Scorpion I and/or its owner.

The trial court was correct in holding that defendant failed to prove its agency defense.

Defendant objected to the admission of parol evidence of its guarantee that the bill would be paid. La.C.C. Art. 2278(3) provides that parol evidence shall not be received to prove any promise to pay the debt of a third person. Art. 2278(3) is subject to an exception. If the agreement to pay is not made primarily to answer for another but is impelled from the pecuniary or business motives of the promissor, then the promise to pay is, in effect, a new and independent agreement and parol evidence is admissible to establish same. Paul M. Davison Petroleum Products v. L.T. Brown, Contractor, Inc., 356 So.2d 572 (La.App. 2d Cir., 1978), and cases cited therein.

We must determine whether defendant’s promise to pay constituted a primary or collateral obligation. The decisive question which must be answered is: to whom was the credit extended? In order to determine to whom the credit was extended we must examine the relationship of the parties and the motive and pecuniary interest of the party making the promise. Seashell, Inc. v. Simon, 398 So.2d 99 (La.App. 3d Cir., 1981); Star Sales Company v. Arnoult, 169 So.2d 178 (La.App. 4th Cir., 1964). If credit was extended to defendant, then parol evidence is admissible to prove defendant’s promise to pay, because the promise to pay constituted a primary obligation.

Mr. Smith testified and the trial court held that, except for defendant’s promises that the bill would be paid, Marmedic would not have continued to render services to the injured seaman. The trial court found that plaintiff extended credit to the defendant as an independent contractor. The question of whether the obligation is primary or collateral is factual. Seashell, Inc. v. Simon, supra; Star Sales Company v. Arnoult, supra. As such, the finding of the trial court will not be disturbed in the absence of manifest error. No such error is apparent to us. The trial court did not err in admitting and considering the parol evidence.

For the above reasons the judgment of the trial court holding the defendant liable unto the plaintiff for the amount owed for the medical services rendered the injured seaman is affirmed.

Plaintiff sued on open account and prayed for attorney’s fees under the provisions of La.R.S. 9:2781. The trial court apparently treated the case as one on open account and awarded attorney’s fees of twenty-five (25%) percent. Our review of the record reveals that plaintiff did not present evidence to prove' compliance with the mandatory requisites for an award of attorney’s fees under La.R.S. 9:2781. Absent such evidence we find that the trial court erred in awarding attorney’s fees. We, therefore, reverse the award of attorney’s fees.

The judgment of the trial court is affirmed, except insofar as it awards the plaintiff attorney’s fees, which award is reversed and set aside. All costs are assessed to appellant.

AFFIRMED IN PART and REVERSED IN PART.


author: CIACCIO, Judge..

text:
    John REYNOLDS v. The BE-NEAT TANK CLEANING CORPORATION, et al.
    No. CA 0091.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 3, 1983.
    Richard M. Goldman, New Orleans, for appellant.
    Dillon & Cambre, Gerard M. Dillon, New Orleans, for appellee.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge..

Plaintiff appeals from a judgment of the district court which dismissed his claim for workmen’s compensation.

The suit arose out of the following facts:

In November, 1979, plaintiff, John Reynolds, was employed as an onshore and offshore equipment and material clean-up worker for the defendant, Be-Neat Tank Cleaning Corporation. At the time, the defendant company was under contract to Chevron Oil Company and was engaged to clean oil tanks in Buras, Louisiana. The job lasted thirty (30) days and during the time of the operation the defendant’s work crew was based in Buras, Louisiana, at a local motel. The crew was supervised by the owner of the defendant company, Joe Ben-itte, Jr. and his son-in-law, Joe Druant. The workers were paid for on the site duty, that is, from 6 a.m. until 6 p.m. each day, with their work day beginning at the motel. The plaintiff earned five ($5.00) dollars per hour. In addition to the hourly wage, each crew member received ten ($10.00) dollars per day for sustenance. This sum was generally used for breakfast and dinner, as their employer provided sandwiches for the crew’s daily lunch.

On November 9, 1979, the date of the accident, plaintiff and the crew had been in Buras, Louisiana for three (3) days and they were lodged at a motel near the job site. The motel did not have laundry facilities and the nearest laundromat was five (5) miles from the motel. The plaintiff and his fellow workers returned to their motel rooms after work. The plaintiff showered, dressed, picked up his clothes and travelled by company truck, with his fellow workers, to a local cafe for supper. Plaintiff, following supper, borrowed the keys to a company truck from one of his supervisors. He was instructed by the supervisor not to lend the truck to anyone. The plaintiff and two crew members proceeded by truck to the laundry to wash their clothes. At approximately 8 p.m., while in the laundry, the plaintiff and his fellow worker, Warren Griffith, became involved in an altercation. The incident was witnessed by a third employee, Christopher Parker. Immediately before the confrontation, Griffith had requested that Reynolds give him the keys to the truck so that he could secure his radio from the front seat of the vehicle. Reynolds refused to give over the keys, as he recalled the directive of his boss that he should not lend the truck to anyone. Griffith struck the plaintiff and a two minute fight ensued. The plaintiff sustained a broken jaw and facial injuries. The eyewitness, Christopher Parker, called their supervisor, Joe Druant, to inform him of the incident. Mr. Druant hitchhiked to the laundry and then drove the plaintiff to the hospital in the company truck.

The plaintiff filed suit to recover workmen compensation benefits, claiming that his injuries were work-related.

After trying the issue of liability, pursuant to a joint stipulation for a bifurcated trial, the district court dismissed the plaintiff’s suit. The district court rendered the following reasons for judgment:

Plaintiff was not in the course and scope of his employment at the time of the fight. The affair was after normal working hours, and the mission was purely personal. The limitation placed on plaintiff’s use of the truck were not job related instructions, but rather were the typical conditions any owner might properly impose when loaning his vehicle to another.
Plaintiff’s action will be dismissed.

On appeal, plaintiff argues that his accident arose out of and was in the course of his employment, in that his injuries occurred while he was performing a function which was incidental to his employment and reasonably contemplated by his employment contract. He reasons that his injuries occured at a laundry facility which was used by the workers of the defendant for the cleaning of their work clothes and it occurred while the plaintiff was using his employer’s truck and while he was under specific instructions from his employer regarding the use of the truck. Therefore, he concludes plaintiff’s actions were “undertaken pursuant to custom in the establishment and that it was knowingly accepted, without objection by those in authority.” We do not agree.

An employee shall be entitled to compensation if he “receives personal injury by accident arising out of and in the course of his employment.” R.S. 23:1031. The “arising out of” and “during the course of” elements of the statute are not synomyous, but must be considered together. Lisenbee v. Chicago Mill & Lumber Co., 278 So.2d 5 (La.,1973); Renfroe v. City of New Orleans, 394 So.2d 787 (La.App., 4th Cir., 1981), writ den. 399 So.2d 621. In making a determination whether the employee has satisfied the requirements necessary to receive compensation, each case must be determined by its own facts. Lisonbee v. Chicago Mill & Lumber Co., supra.

The “arising out of” requirement of the statute deals with the character or origin of the risk. R.S. 23:1031. Lisonbee v. Chicago Mill & Lumber Co., supra; Brumfield v. Patterson & Yearly Steel Co., 416 So.2d 217 (La.App., 1st Cir., 1982); Renfroe v. City of New Orleans, supra. In order to determine if an employee experienced an accident “arising out of” his employment, there must be a two-fold inquiry: first, it must be determined whether the employee was then engaged in the employer’s business and secondly, whether the necessities of the employer’s business reasonably required the employee to be at the place of the accident at the time of the accident. Guidry v. Serigny, 378 So.2d 938 (La.,1979); Renfroe v. City of New Orleans, supra. That is, the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Lisonbee v. Chicago Mill & Lumber Co., supra.

The “during the course of” element of the compensation statute, brings into focus the time and place relationship and the employment. R.S. 23:1031. Renfroe v. City of New Orleans, supra; Brumfield v. Patterson & Yearly Steel Co., supra. Therefore, an accident occurs “during the course of” employment, for purposes of the Louisiana Compensation statute, when it occurs during the time of the employment and at a place contemplated by the employment. Lisenbee v. Chicago Mill & Lumber Co., supra; Renfroe v. City of New Orleans, supra. Thus, the general rule is that the accident must occur during normal working hours and at the employee’s place of work. Brumfield v. Patterson Yearly Steel Co., supra, citing Kern v. Southport Mill, 174 La. 432, 141 So. 19 (La.1932). It is for this reason that an employee is generally not covered by the workmen’s compensation statute when he is injured while going to or returning from work. Landry v. Benson Gold Chevrolet, 398 So.2d 1262 (La.App., 4th Cir., 1981). This general rule is subject to a number of jurisprudentially established exceptions. The exceptions exist: (1) when the accident occurs on a trip which is reasonably contemplated by the contract of employment as one which the employee would make in the interest of his employer’s business, (Landry v. Benson Gold Chevrolet, supra.) (2) when the accident occurs where the employer has interested himself in the transportation of the employee to and from work as an incident to the employment agreement, (Landry v. Benson Gold Chevrolet, supra); (3) when the employee is acting pursuant to an order of the employer (Stephens v. Justiss Mears Oil Co., 312 So.2d 293 (La., 1975); or (4) where the employee was doing his work under the circumstances where the employer’s consent could be fairly implied. (Stephens v. Justiss Mears Oil Co., supra.) Ultimately, a determination of whether an employee is engaged in a purely personal endeavor or is acting within the course of his employment will depend upon the facts of the particular case. Renfroe v. City of New Orleans, supra. The further removed the facts are from the general rule in terms of time and place, the more likely it is that the result will become an estimation on the part of the trier of fact. Brumfield v. Patterson & Yearly Steel Co., supra, citing Malone & Johnson, “Workmen’s Compensation Law and Practice” p. 24-25.

The trial court found that the accident occurred after normal working hours and while plaintiff was on a purely personal mission. The record supports these findings.

The nature of the defendant’s business was onshore and offshore equipment and material clean-up. The business involved tank, boiler and ship cleaning, pipe flushing and hydroblasting.

On the date of the accident the plaintiff was employed as an oil tank cleaner on an oil tank farm in Buras, Louisiana. The job was contracted on a firm bid basis and Chevron Oil Company determined the days and hours of work. The crew worked seven days a week. They were paid while on the job site, that is, from 6 a.m. to 6 p.m.

Plaintiff’s accident occurred between 8— 8:15 p.m. on the night of November 9, 1979 while he was engaged in cleaning his clothes at the laundry. Thus, the accident occurred after normal working hours, away from the employee’s place of business, when plaintiff was not performing a traditional work activity.

In an attempt to find refuge in the threshold doctrine, the plaintiff argues that the inherent nature of his job and its working conditions required his trip to the laundry. He reasons that since the job was inherently dirty and the location necessitated him being away from home, at a motel, that did not provide laundry facilities, that his trip to the laundry was one reasonably contemplated by his employment. He adds that it was in the interest of his employer, for in addition to his own clothes, he took those of his supervisor to be washed.

The record does not support the plaintiff’s position. The exhibit introduced at trial, by the defendant, evidences the fact that although the job was dirty, the men’s clothing was protected by rubber oversuits. (D-l). Moreover, the job superintendant, Joe Benitte, Jr., testified that the degree to which any member of the crew became dirty varied from one individual to another. He testified that the company had never before made provisions for the men’s laundry while they were out of town. Contrary to the allegations of the plaintiff, Mr. Ben-itte stated that he did not give his clothes to the plaintiff to wash, nor did any of his supervisors. He further stated that he had never driven anyone to the laundry, nor to his knowledge had any other foreman done this. Mr. Benitte’s testimony was corroborated by Joe Druant.

The plaintiff next argues that he used a company truck to travel to the laundry and that the accident occurred because he was responding to an order of his supervisor not to lend the truck to anyone.

Mr. Benitte testified that he had on occasion loaned job trucks to men while they were working on out of town jobs, in order that they could attend to their personal needs. He stated that he knew, from past experience, that the plaintiff was a reliable driver. He testified that he instructed the plaintiff not to loan the vehicle to anyone. Mr. Benitte also testified, unequivocally, that he was asked by the plaintiff, on a personal basis, to borrow the truck to go to the laundry and that he lent the truck to the plaintiff, on a personal basis. On this issue of credibility, the trial judge apparently believed the job supervisor, Joe Ben-itte.

Accordingly, the trial court correctly concluded that the plaintiff’s accident and resultant injuries did not occur within the course and scope of his employment and thus, the plaintiff was not entitled to benefits under the Louisiana Workmen’s Compensation Act. R.S. 23:1021 et seq. We find no error with the judgment of the trial court.

For the reasons assigned the judgment of the district court is affirmed at plaintiff’s cost.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, as Subrogee of Joseph Ceasar, Jr. v. Allen J. DIXON, et al.
    No. CA-0104.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 3, 1983.
    Terry J. Freiberger, New Orleans, for plaintiff-appellant.
    Jan P. Jumonville, New Orleans, for defendants-appellees.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a partial summary judgment granted by the trial court.

Joseph Ceaser was injured in an automobile accident during the course and scope of his employment. Defendant Allen Dixon was the driver of the car involved in the accident with Ceaser. As a result of the accident, Ceaser suffered certain medical disabilities that rendered him unable to continue his work as a truck driver. He was later involved in another automobile accident that was not work-related. He claimed that following the second accident, the pain that he had suffered in his neck and shoulders as a result of the first accident had become aggravated.

Plaintiff is the subrogee of Mr. Ceaser as a result of its status as a workers’ compensation insurer of his employer. Plaintiff claimed that Ceaser’s injuries were aggravated by the second accident, and although it was non-work related, brought the action against the driver of the second automobile and his insurer, seeking reimbursement for past and future monies it was required to pay in workers’ compensation. The defendant, insurer of the driver involved in the second automobile accident, successfully moved for a motion for partial summary judgment, releasing it from the suit brought by the subrogee.

The plaintiff argues that the second accident was an aggravation of the work-related injury, which is compensable even though it occurs away from work. In support of this argument, the plaintiff relies upon Kelly v. City of New Orleans, 414 So.2d 770 (La.1982). In Kelly, a policeman had shoulder difficulties as a result of a work-related accident. He later dislocated his shoulder in a non-work related accident which subsequently required surgery. The court held the last incident, i.e., the surgery which became necessary because of the non-work related accident, was compensable because medical testimony indicated that there was a 75% probability that such an accident would occur because the policeman’s ligaments had been weakened by the work-related accident.

In Allstate Insurance Company v. Theriot, 362 So.2d 1214 (La.App. 4th Cir.1978) rev’d on other grounds, 376 So.2d 950 (La.1979), an employee sustained a compensable injury and was hospitalized. On the way home from the hospital he was involved in an automobile accident. This court denied recovery to the plaintiff, the workers’ compensation insurer, from the driver of the other automobile, his employer, and their insurers because the plaintiff was not liable for the payment of additional workers’ compensation as a result of the second accident because that accident was non-work related. The Allstate court quoting from Professor Malone’s Louisiana Workmen’s Compensation treatise, stated that an employer “should not be charged for independent harms which the employee sustains while under treatment where such harms are not related in fact to the accident which occurred on the job.” W. Malone, Louisiana Workman’s Compensation, Section 233 (1951) as quoted in Allstate Insurance Company, supra at 1217.

Kelly and Allstate can be reconciled, although the results reached by each court are different. In Kelly, because of a work-related injury, the likelihood that the worker would receive additional injuries was great. Any subsequent injury, therefore, could be directly traced to the previous work-related injury. In Allstate, as in the present case, an intervening incident aggravated a work-related injury. For a second, non work-related accident to be compensa-ble it must have been foreseeable. See Carter v. Rockwood Ins. Co., 341 So.2d 595 (La.App. 2d Cir.1977). For example, in Kelly, there was a 75% chance that a shoulder injury to the policeman would recur. In the present case, Ceaser’s involvement in a second automobile accident could not have been reasonably foreseen. It was not a natural or expected consequence of the original injury. The accident was an intervening and independent action which caused Ceasar’s injury.

Plaintiff has argued that had it ceased paying benefits to Ceaser following the second accident, Ceaser might have brought an action claiming that the termination of his benefits was “arbitrary and capricious.” Although plaintiff claims that it is caught between “that proverbial rock and hard place,” defendant, insurer of the driver involved in the second accident, nevertheless should not be required to reimburse the compensation insurer for benefits paid to the injured worker, because the accident was non-work related, although the worker may have his own cause of action in tort.

Although we recognize that the workers’ compensation insurers may continue to pay benefits to workers beyond the point which they are eventually found to be obligated in order to avoid paying penalties for capricious and arbitrary termination of benefits, this was a matter thoroughly considered by the legislature in balancing the best interests of all parties.

For the foregoing reasons the decision of the trial court to dismiss Allstate is affirmed, all costs to appellant.

AFFIRMED.


author: SAVOIE, Judge.

text:
    FIDELITY & DEPOSIT COMPANY OF MARYLAND v. CLOY CONSTRUCTION COMPANY, INC., et al. COLEMAN OLDSMOBILE, INC. v. CLOY CONSTRUCTION COMPANY, INC., et al.
    Nos. 82 CA 0205, 82 CA 0206.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 4, 1983.

      David S. Bell, Baton Rouge, for Fidelity & Deposit Co. of Maryland.
    Robert L. Kleinpeter, Baton Rouge, for Coleman Oldsmobile, Inc.
    John C. Miller, Baton Rouge, for Paul T. Stewart, Architect.
    Martin C. Schroeder, Baton Rouge, for Cloy Const. Co., Inc., et al.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

These consolidated suits result from two contracts between Cloy Construction Company, Inc. (Cloy) and Coleman Oldsmobile, Inc. (Coleman).

The first contract was for the construction of the present Coleman Oldsmobile facility in Baton Rouge. The construction was to be performed in accordance with the plans and specifications prepared by Paul F. Stewart, the architect retained by Coleman. Cloy’s performance on this contract was bonded by the Fidelity and Deposit Company of Maryland.

The second contract was an oral agreement. Under this contract, Cloy agreed to provide certain fill for the lot adjacent to the construction. This lot was also owned by Coleman.

At trial, Cloy sought the balance due on the construction project, the contract price for the fill and damages. Fidelity & Deposit sued for certain funds which it was required to expend as Cloy’s surety. In addition, Coleman prayed for damages for alleged defective design and construction. Its primary complaint was over the deficiencies in the concrete driveways, parking lots and curbing.

The trial court rendered judgment: (1) in favor of Cloy and Fidelity & Deposit against Coleman for $32,565.00 (retainage on the construction contract) with legal interest thereon from June 12, 1974; (2) in favor of Cloy and against Coleman for $24,-496.50 (cost of fill contract) with legal interest thereon from date of judicial demand; (3) in favor of Fidelity & Deposit and against Cloy, decreeing that the judgment rendered in favor of Fidelity & Deposit against Coleman (see (1)) to be superior in rank to and prime and be paid in preference and priority to any judgment herein in favor of Cloy; (4) in favor of Fidelity & Deposit and against Cloy, et al, in the sum of $39,982.62 (payments expended as surety) with legal interest from date of judicial demand; (5) reserving to Fidelity & Deposit the right to its damages for costs and expenses of these lawsuits against Cloy, et al; (6) in favor of Coleman and against Cloy and Fidelity & Deposit for $14,800.00 plus 25% thereon (costs of repairs of parking lot and to replace curbing); (7) in favor of Paul Stewart, Inc. and Paul Stewart, individually and its insurer, dismissing with prejudice Coleman’s claims.

Appeals were taken by Coleman, Cloy, and Fidelity & Deposit. In response to Coleman’s appeal, Stewart answered and urged that the trial court’s dismissal of Coleman’s claims against it be affirmed.

COLEMAN

On appeal, Coleman sets forth three assignments of error. Basically, Coleman argues that it not only failed to get a properly designed parking lot but failed to get a finished product installed in a good workmanlike manner.

This case is governed by L.S.A.-C.C. Art. 2769, which reads:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from this non-compliance with his contract.”

Under this article, the owner’s remedy in the presence of substantial compliance or performance is to allege and prove the nature and extent of the unfinished or defective work so as to reduce the amount of the judgment by the amount of the cost required to correct the defective work. G. Salvaggio & Co., Inc. v. Delta Heights, Inc., 277 So.2d 754 (La.App. 4th Cir.1973). The burden of proof in a case of this nature as to the defects and omissions on the part of the contractor and the cost of repairing and finishing them lies squarely upon the owners who claim defective work exists. G. Salvaggio & Co., Inc., supra.

The original plans and specifications required a slab constructed of four inches of concrete with wire mesh and curbing connected by dowels. Subsequently, the plans and specifications were changed to delete the requirement for wire mesh and to substitute five inches of concrete. Both Mr. Cloy and Mr. Stewart testified this was a cost-saving change. Further, Mr. Cloy suggested that the curbs be glued to the concrete, as opposed to being connected by dowels. Mr. Cloy testified this idea was orally approved by Mr. Stewart, the architect.

Several experts were called at trial to testify as to the manner in which the parking lot and curbs were constructed. All of the experts agreed that concrete will crack. Dr. Jerry Householder, testifying in Coleman’s behalf, stated he would do the job differently but did not say that the present design of the lot was deficient. As to the curbing, he testified that Darweld-C, which was used to bond the curbing, was not a true epoxy. He was of the opinion that Darweld-C would not give the same type of results as dowel. Mr. Gonzales, another expert, concurred in Householder’s findings.

Lawrence Farris stated that he patched about twelve areas (admitted deposition said eight areas) of the driveway because of cracking and curbing. He last patched the area three years ago. In that time, the largest area patched was 10' X 10'. The patched areas were those that were most trafficked.

Dean McKee testified in Cloy’s behalf. He was of the opinion that a majority of the cracks were due to shrinkage. His tests indicated the concrete was of good strength and exceeded the specifications and strengths required by the contract. He felt it was sufficient for the lot. McKee stated that he would expect some ponding after eight years.

James Clary, called by Cloy, testified that the lot was comparable to other lots in the area of the same age. He stated the concrete looked good, the omission of the mesh was not a design defect, and the lot was functional. He did not consider the pond-ing or cracking in the concrete to be excessive. As to the curbing, he stated that the dowels would have been better than using an epoxy. However, he stated that the Highway Department accepted epoxy as a bonding agent and, therefore, he would accept it, too. Mr. Clary went on to say that Darweld-C was not a true epoxy.

The foregoing testimony supports the trial court’s conclusions and awards.

The trial court found that the parking lot and driveways had withstood the test of time. This was so despite evidence indicating some deficiencies relative to slab thickness and improper construction of the curbing. It noted that three years prior to trial, between 8-12 sections of concrete had been repaired, amounting to approximately 9600 square feet of the total parking area (188,-000 square feet). With the exception of the repaired sections, the court opined that the parking lot had and continues to serve the purpose for which it was constructed. The court was convinced that the parking lot in question was comparable to any 8-year old parking lot in the area. In accordance with these findings, the lower court awarded the replacement cost of the repaired sections of the lot and the cost of completely re-doing the curbing.

Further, the experts’ testimony refutes Coleman’s contention that the parking lot was improperly designed. The general consensus of the experts was that a 5-inch concrete slab without wire mesh is an acceptable design for parking lots in this area. In addition, gluing was noted to be an acceptable method of bonding curbs. However, when laying curbs by this method, a true bonding agent is necessary. Therefore, the trial court was correct in dismissing Coleman’s claim against Stewart.

FIDELITY & DEPOSIT COMPANY AND CLOY CONSTRUCTION

Fidelity & Deposit Company and Cloy Construction present five specifications of error on appeal. Fidelity & Deposit and Cloy contend that the trial court erred in: (1) not awarding Cloy and Fidelity & Deposit interest on $107,545.00 from February 27, 1974 to June 12, 1974, and on $32,545.00 from June 12, 1974 until paid; (2) not awarding interest to Cloy from July 13, 1973 on $24,496.50 under the fill contract; (3) not awarding Cloy damages for breach of contract; (4) not holding Fidelity & Deposit (or Cloy) were released by the actions and inactions of Coleman and in not sustaining their affirmative defenses; (5) in awarding a money judgment to Coleman against Cloy and Fidelity & Deposit, concluding that Cloy did not perform.

With respect to these above claims, it should be noted that Cloy and Coleman entered into an agreement on June 12,1974. Under this agreement, Cloy agreed to complete certain items in consideration of Coleman releasing $75,000.00 of the retainage and agreeing to release the remainder thereof upon Cloy’s completion of the agreed upon work. It appears that the parties intended the $75,000.00 payment to satisfy the amount due to Cloy as of that date. Thus, by this subsequent agreement, Cloy waived its claim to the interest which may have accumulated until that time.

As to the interest to be paid on the remainder of the retainage ($32,565.00), L.S.A.-C.C. 1938 governs. This article provides that all debts bear legal interest from the time they become due unless stipulated otherwise. In this case, the agreement provided that the balance of the retainage would be paid when the items contained on the May 24, 1974 punch list were completed to the satisfaction of the architect. On November 19, 1974, Stewart wrote a letter to Cloy, with a copy to Coleman, stating that all the items had been completed. Therefore, the $32,545.00 became “due as stipulated” on November 19,1974. The trial court rendered interest on this amount from June 12, 1974. This is incorrect. By agreement of the parties, this amount was not to be paid until the punch list items were completed. The date of that completion was November 19, 1974. This is the earliest date from which interest could run under the above noted article.

Further, Cloy and Fidelity & Deposit argue that the trial court erred in awarding interest on the fill contract amount ($24,-496.50) from the date of judicial demand rather than from July 13, 1973, the date of completion.

L.S.A.-C.C. 1938 provides that all debts shall bear interest at a certain rate from the time they become due, unless stipulated otherwise. L.S.A.-C.C. 1938 makes no mention of whether demand need be made. However, the legislative history of L.S.A.C.C. 1938 indicates that when this article was introduced in 1870, it was the legislative intent to eliminate the requirement of putting the obligor in default for the accrual of interest, on money debts. 2 S. Litvi-noff, Obligations § 244 in 7 Louisiana Civil Law Treatise, 457 (1975). Furthermore, under L.S.A.-C.C. 1935 the obligee, whatever his loss may be, cannot recover more than interest. Thus, it is fair that such a minimum recovery be allowed from the time the obligation is due without any putting of the obligor in default. Of course, an obligation to pay a sum of money is due at the arrival of the term expressly provided in the agreement. Litvinoff, supra, at 458. “If a term is neither expressed nor implied, a demand by the obligee becomes necessary to make the obligor aware that he is now expected to perform. In such a situation a mere amicable request should suffice .... Thus, a debt for professional services is due upon completion of the services and interest runs from the date a bill is rendered.” Litvinoff, supra, at 458, 459.

Mr. Cloy testified that the cost of the fill as agreed to by Coleman was for the amount of $30,000.00 or $1.75 per yard, whichever was less. He submitted a bill to Coleman in the amount of $24,496.50 for this work. This bill has not been paid. An affidavit executed by Mr. Cloy, which is also in the record, states that the obligation was completed on July 13, 1973. However, Exhibit “Stewart 7” dated January 25,1974 is the only evidence reflecting the billing date to Coleman for the fill work. Therefore, interest should be awarded from the date Coleman was billed, January 25, 1974.

Thirdly, it is argued that the trial court erred in denying Cloy damages for breach of contract. In support thereof, Cloy contends L.S.A.-C.C. 1934 is controlling. That article provides for the measure of damages for breach of a contract “where the object of the -contract is anything but the payment of money.” L.S.A.-C.C. 1934. (Emphasis added). Cloy’s complaint is that Coleman breached its contract by failing to pay timely. Therefore, L.S.A.-C.C. 1934 is inapplicable.' A complaint of this type is governed by L.S.A.-C.C. 1935, which reads:

“Art. 1935. Interest as damages for nonpayment of money. The damages due for delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.” (Emphasis added).

Therefore, this contention is without merit.

Further, in their supplemental brief, Cloy and Fidelity & Deposit contend that L.S.A.-C.C. 1935 denies equal protection of the law violating both the Louisiana Constitution and the United States Constitution. The basis for such assertion is that L.S.A.C.C. 2765 allows a contractor to recover damages when his contract has been can-celled but L.S.A.-C.C. 1935 limits recovery of a completed contract to interest. It is claimed this results in an invidious discrimination, without a reasonable basis, and is arbitrary. This argument is totally without merit. The articles contemplate two entirely different situations. L.S.A.-C.C. 1935 provides for the measure of damages when a person fails to pay a money debt. In contrast, L.S.A.-C.C. 2765 provides for the right of a proprietor to cancel at his pleasure, the bargain he has made. However, the exercise of this right will require the proprietor to pay the undertaker for the expenses and labor already incurred, and such damages as the nature of the case may require. This is not a case where two persons in the same situation are treated differently under the law. It is a case where two persons in two entirely different situations are treated differently under the law. As such, there is no violation of the equal protection clause of either constitution.

Cloy and Fidelity & Deposit also contend that each was released under the June 12, 1974 agreement for any deficiencies under the original contract that were not reserved. Cloy argues the defenses of compromise, novation and remission apply. Fidelity & Deposit argues that it was released by the design changes made in the project and by the July 12th agreement to which it was not a party.

The evidence does not support Cloy and Fidelity & Deposit’s contention on this issue. The compromise of June 12,1974, was not a general compromise of all differences as contemplated under Article 3083 of the Civil Code but was, rather, a compromise or transaction of very limited scope under Article 3073 of the Civil Code. This compromise only extended the time in which Cloy was to perform certain acts and Coleman was to pay certain funds. The trial court did not and we do not find any intention to enter into a general compromise or to extend this compromise beyond the resolution of differences mentioned in that agreement.

L.S.A.-C.C. 2185 defines a novation as a contract consisting of two stipulations: One, to extinguish an existing obligation, the other, to substitute a new one in its place. The terms of the agreement do not extinguish the existing obligations of the parties nor does it substitute a new obligation in its place. Thus, this argument is without merit.

A remission is defined in Civil Law as a release of the debt. See Black’s Law Dictionary, 1458 (Revised 4th ed. 1968). The agreement does not indicate that Coleman released Cloy from its obligations under the contract. Therefore, this argument is also without merit.

Fidelity & Deposit asserts that it was discharged from its obligations of sure-tyship in two ways. First, that changes in the plans and specifications operated to release Fidelity & Deposit by the certain provisions of the bond. The record does not support this contention. The trial court did not so find nor do we. Second, Fidelity & Deposit asserts that it was discharged because it was not a party to the agreement of July 12,1974. L.S.A.-C.C. 3061 provides that the surety is discharged when by the act of the creditor, the subrogation of his rights, mortgages and privileges can no longer be operated in favor of the surety. There is no showing that Fidelity & Deposit was so prejudiced by the July 12, 1974 agreement. This argument is also without merit.

Lastly, Cloy and Fidelity & Deposit contend the lower court erred in concluding Cloy did not perform under the contract provisions, and awarding Coleman damages therefor.

The trial court concluded that the work in question had some deficiencies relative to thickness of the slab and that the curbing was constructed in an improper manner. Cloy argues that any defect in the lot and curbing is due to the design thereof. This is not supported by the record.

It appears that the defective curbing resulted from Cloy’s failure to use a true epoxy, not from the fact that it was glued. Further, the record does not show that Stewart particularly approved the use of Darweld-C but only agreed to allow the curbing to be glued. The use of Darweld-C was Cloy’s decision. Thus, the trial court was not manifestly erroneous in its conclusion.

Under this assignment of error, Cloy also argues that the amount of damages awarded hereunder is excessive. Cloy contends that the figures given were the cost of re-doing the work in a different manner.

The owner’s remedy, in the event of defects or imperfection upon substantial completion of the work, is the right to seek a diminution in the price by the amount of the cost required to correct the defective work. G. Salvaggio & Co., Inc., supra.

Dr. Householder was the only witness to testify as to the cost of replacing the twelve defective sections of the concrete and the curbing. The trial court accepted these figures as being the true cost of repairs. We find no manifest error in this conclusion by the trial court.

For the foregoing reasons, the decision of the trial court is amended, as follows:

1. The judgment of the trial court in favor of Cloy Construction Company, Inc. and Fidelity & Deposit Company of Maryland and against Coleman Oldsmobile, Inc., in the amount of $32,565.00 is amended to read “in the amount of $32,545.00” and is to bear interest from November 19, 1974.

2. The judgment of the trial court in favor of Cloy Construction Company, Inc. and against Coleman Oldsmobile, Inc. in the amount of $24,496.50 is to bear interest from January 25, 1974.

In all other respects, the judgment of the trial court is affirmed.

Costs of this appeal are to be shared equally by Cloy Construction Company, Inc. and Coleman Oldsmobile, Inc.

AMENDED AND AFFIRMED.

      . This $32,565.00 figure is supposed to represent the retainage due on the construction contract for the Coleman Oldsmobile facility. However, the architect’s letter of November 19, 1974 reflects that the balance due thereon is $32,545.00. This figure was derived from the total retainage amount $107,545.00 minus the $75,000.00 paid under the compromise agreement of June 12, 1974. We note this subtraction error and will amend the trial court’s judgment accordingly.

      . See footnote 1.

      . Coleman argues the lower court erred in three respects: (1) in failing to conclude that the concrete parking area and driveways were defective, had failed, and that this resulted from improper design, poor supervision, and faulty construction; (2) in failing to conclude that the contractor was at fault in not following the plans and specifications requiring five inches of concrete and for his further failure to perform in a good workmanlike manner considering his knowledge and expertise; (3) in concluding that the architect was not responsible for engineering defects in design and construction under the doctrine of respondeat superior.

      . Exhibit “Stewart # 7” contains Invoice No. 087 from Cloy Construction Company to Mr. Bob Coleman, c/o Coleman Oldsmobile, Inc. for fill and grade work at the Coleman Toyota site for 13,996 cubic yards $1.75 per yard, to-tailing $24,496.50. This invoice is dated January 16, 1974. However, it was forwarded to Coleman by Paul Stewart, architect, in his letter dated January 25, 1974. Therefore, January 25, 1974 is the billing date of record.


text:
    BORDEN, INC. v. HOWARD TRUCKING CO., INC., et al.
    No. 82 CA 0220.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 4, 1983.
    Writs Granted March 4,1983.

      Eugene R. Groves, Baton Rouge, for plaintiff-appellant Borden, Inc. and for Dresser Industries in its capacity as interve-nor.

      Felix R. Weill, Baton Rouge, for third party defendant and defendant in reconvention-appellant Dresser Industries, Inc.
    Lawrence A. Durant, Baton Rouge, for defendant-appellee Northwest Ins. Co.
    Leon R. Roy, Jr., New Iberia, for defendant-appellant Howard Trucking Co., Inc., et al.
    P. Albert Bienvenu, Jr., New Orleans, for defendant-appellee Antoy William Ames, in behalf of Underwriters at Lloyd’s, London.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

This ease is before us for the second time. Plaintiff-appellant, Borden, Inc. (Borden), and intervenor, Dresser Industries, Inc. (Dresser), assert the trial court erred in finding no coverage under the liability insurance policies of defendant, Howard Trucking Co., Inc. (Howard). Additionally, defendant-appellant, Howard, also asserts the trial court erred in not finding that one of its insurers, Northwest Insurance Company (Northwest), provided coverage for the damages sustained by plaintiff-appellant.

This suit arises out of a contract of carriage wherein an item of cargo was damaged in transit. On October 26, 1976, Borden, through its agent, Dresser, contracted with Howard for the carriage of a compressor from Borden’s methanol plant in Geis-mer, Louisiana, to Dresser’s repair and maintenance facility in Harahan, Louisiana. In transit, Howard’s truck overturned, damaging the compressor.

On August 2, 1977, Borden filed suit against Howard and Northwest, Howard’s comprehensive automobile, general, and contractual liability insurer. Borden seeks recovery for repair costs to the compressor and special damages for the lost production of methanol consequential to the actual physical damage to the compressor because of the delay in getting the compressor back in operation.

Howard’s cargo insurer, Antoy Williams Ames, an underwriter of Lloyds of London (Ames), was made a defendant by amended petition and petition of intervention filed jointly by Borden and Dresser on April 20, 1978. Northwest subsequently filed a motion for summary judgment to dismiss Borden’s claim as against Northwest based on an automobile insurance policy exclusion. The trial court granted Northwest’s motion. Borden devolutively appealed after motion for a new trial was denied.

This court in Borden, Inc. v. Howard Trucking Co., Inc., 372 So.2d 242 (La.App. 1st Cir.1979), writ denied, 373 So.2d 544 (La.1979), reversed and remanded, finding that the exclusionary clause did not exclude coverage for consequential loss of use or loss of production.

On remand, the trial court rendered judgment against Howard and Ames in the sum of $174,203.63. Ames was subject to liability for only the cost of repairs for physical damage ($10,579.15 less its deductible. of $5,000.00). The trial court dismissed all further claims against Northwest, holding that Northwest’s policy did not provide coverage for consequential damages contrary to the holding of this court in Borden, supra.

Borden and Dresser assert the trial court erred in: (1) finding no coverage under Northwest’s policy, and (2) limiting the coverage under the Lloyds of London policy to the property damage.

Howard asserts the trial court erred in holding that: (1) there was compensable damages for the cost of repairs of the compressor in the amount of $10,579.15, (2) Borden was entitled to special damages for the consequential delay or loss of production, (3) the amount of damages for consequential delay or loss of production amounted to $163,624.48, and (4) Northwest’s insurance policy did not provide coverage for the damages of consequential delay or loss of production.

Ames asserts the trial court erred in: (1) awarding judgment for physical damage to the compressor for “extra repair work at Dresser in the amount of $6,321.15”, (2) awarding judgment for physical damage to the compressor for items of “Borden labor” in connection with repair of piping by Borden in the amount of $4,258.00, (3) holding that Borden was entitled to recover for loss

of production, and (4) awarding “all costs” as against Ames and Howard, rather than a portion of the costs.

It is well settled in Louisiana that an insurance contract, or any other agreement, constitutes the law between the contracting parties. L.S.A.-C.C. Art. 1901; Oncale v. Aetna Casualty and Surety Company, 417 So.2d 471 (La.App. 1st Cir.1982); Schmieder v. State Farm Fire and Casualty Company, 339 So.2d 390 (La.App. 1st Cir.1976), application denied, 341 So.2d 895 (La.1977). Courts must give legal effect to the provisions of such insurance policies according to the true intent of the parties, which intent must be determined in the light of the policy provisions when the policy terms are clear and unambiguous and lead to no absurd consequences.

BORDEN AND DRESSER

The first time this case was before us, we concluded that the application of the “care, custody and control” exclusionary clause in the insurance contract was to be strictly construed. Based upon this interpretation, Northwest, Howard’s insurer, was found liable for the consequential delay or loss of production. We remanded the case back to the trial court for further proceedings in accordance with our holding. In the meantime, a writ of certiorari was applied for to the Supreme Court. Our Supreme Court denied writs, finding the decision of this court not to be a final decision. Borden, Inc. v. Howard Tracking, Inc., 373 So.2d 544 (La.1979). On remand from this court, the trial court chose to disregard our previous holding and followed the reasoning in Goodwin Well Service, Inc. v. Goss Construction Company, Inc., 380 So.2d 1246 (La.App. 3rd Cir.1980), and again found Northwest not liable for the consequential delay or loss of production. The trial court’s reliance on Goodwin, supra, is error. We hold the applicable law for this case is as set forth previously. See Borden, supra.

Exclusionary clauses are strictly construed against the insurer, especially if they are of uncertain import. Borden, supra; Commercial Capital Systems, Inc. v. Faille, 333 So.2d 293 (La.App. 1st Cir.1976). Northwest’s policy excludes coverage of damage to property “in the care, custody, or control” of the insured. In this instance, when the particular loss claimed by Borden occurred (i.e., loss of production), the compressor was “in the care, custody or control” of Borden, not Howard. Strictly construing the exclusionary clause and for the reasons mentioned in Borden, supra, we continue to hold Northwest liable for the damages due to consequential delay or loss of production.

Borden’s assertion that the trial court erred in limiting coverage under Lloyd’s policy for damages due to loss of production falls within the aforementioned principles regarding contracts between parties. Contracts of insurance are the law between the parties and policy exclusions are to be strictly construed against the insurer. L.S.A.-C.C. Art. 1901; Oncale, supra; Borden, supra.

Ames’ policy provides:

“This policy covers the liability of the insured for loss or damage to lawful goods and merchandise while in the custody or control of the insured (and while in the custody of connecting carriers) in the ordinary course of transit within the contiguous States of the United States and the District of Columbia and Canada (except as provided elsewhere in this policy)

The policy also provides a $50,000 liability with a deductible of $5,000. Ames concurs with the trial court’s finding that the policy covers physical damage to the property damaged.

Ames’ policy excludes damages for loss of market, delay, loss of use, or any other remote or consequential loss. Although these terms are not specifically defined in the policy, they are not vague or ambiguous. As such, Ames’ policy excludes coverage of loss of production as stated by the trial court. Therefore, Borden is entitled to that sum awarded by the trial court less the stated deductible.

HOWARD

Having previously determined that Howard’s insurer, Northwest, is liable for consequential delay or loss of production, we need only address Howard’s contention as to quantum of award and its liability for consequential delay or loss of production.

Howard first asserts that: (a) the amounts charged by Dresser for “extra repairs at Dresser”, and (b) the amount expended for “Borden labor” related to the. accident are in error. It is contended that the record fails to substantiate Borden’s claim for the “extra repair at Dresser” in that: (1) the damage pre-existed the accident, and (2) Dresser’s bill of $6,321.15 for the “extra repair at Dresser” is not supported by the record. Howard also contends that the amount awarded for “Borden labor” is erroneous in that: (1) the trial court assumed all the labor time was spent in repairing and refitting the compressor as a result of the accident, (2) 16 hours rather than 38 hours 20 minutes were required to repair and refit the compressor, and (3) double-time wages were not contemplated or foreseeable under the contract of carriage.

The record clearly supports a finding that: (1) the damage did not pre-exist the accident, (2) Dresser’s bill for “extra repairs” of $6,321.15 is well substantiated, (3) all Borden’s labor time was spent repairing and refitting the compressor as a result of the accident, and (4) 38 hours 20 minutes were required to repair and refit the compressor after allowing seven (7) hours deduction for the normal installation time required. Howard’s contention that double-time wages were not contemplated is without merit.

It is well settled in Louisiana that one is required to mitigate damages in both tort and contract. Altazan v. Pontchartrain Dredging Corporation, 385 So.2d 292 (La.App. 1st Cir.1980). Here, the record reflects that the compressor arrived at Borden’s plant sometime before 7 A.M. on Sunday, October 31st. Had Borden waited until Monday to start installation of the compressor, Howard would be liable for $131,126.83 for lost production (i.e., $3,420.70 per hour for 38 hours 20 minutes). Borden’s claim of labor in the amount of $4,258.00 is well supported in law and fact.

We may not substitute our own evaluations and inferences for the reasonable evaluations and inferences of the trier of fact unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); and Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980), writ refused, 392 So.2d 690 (La.1980). Finding no clear error on the trial court’s part, we affirm their findings as to the aforementioned figures and issues.

Secondly, Howard asserts the damages for consequential delay or loss of production was not contemplated by the parties. The trial court found Howard liable for the damage suffered by Borden, based upon the negligence of Howard’s driver, Noel Weaver, Jr. Thus, Borden’s action lies in tort. As such, Howard is liable for all damages which are foreseeable from an accident of this type. Being a factual matter, we cannot say the trial court was clearly wrong in so finding. Additionally, Howard’s procuring such insurance coverage indicates their intent to protect themselves from such liability. Thus, we affirm the trial court’s finding of Howard’s liability for the consequential delay or loss of production.

Finally, Howard asserts the record fails to support the $163,624.48 award for consequential delay or loss of production. They claim that: (1) Borden suffered no loss of sales, and alternatively (2) fixed costs were not included in the cost of production, (3) pre-accident production figures rather than post-accident production figures were used to compute Borden’s loss, and (4) the total delay time was in excess by 11 hours.

The record reflects that although no loss of a sale was shown by Borden, their reserve level of methanol was reduced to compensate for the loss of production. With respect to the factual computations for the loss of production, it is well recognized that there are several acceptable accounting methods which could be used. We find no error in the trial court’s use of the uncon-troverted testimony and method used by Borden’s accountant. Considering its great discretion in the award of damages, the trial court will only be reversed if those awards are clearly erroneous. Reck v. Stevens, 373 So.2d 498 (La.1979); and Durrett v. State of Louisiana, 416 So.2d 562 (La.App. 1st Cir.1982). We find the aforementioned awards given by the trial court to be within its discretion and in consonance with accepted accounting principles.

AMES

Having previously determined the issues of consequential delay or loss of production, and quantum of award, we need only address Ames’ contention regarding excessive “costs” of appeal.

The general rule is that the party cast in judgment should pay all costs of the trial. Gholar v. Security Insurance Company of Hartford, 366 So.2d 1015 (La.App. 1st Cir.1978). L.S.A.-C.C.P. Art. 1920 gives the trial court discretion to assess costs but limits that discretion. Appellate courts are obliged to review this ruling and assess costs which they consider equitable. L.S. A.-C.C.P. Art. 2164; Custom Builders & Supply, Inc. v. Revels, 310 So.2d 862 (La.App. 3rd Cir.1975). Trial courts should not be reversed unless their rulings are clearly erroneous. In this instance, equity should dictate a modification of the costs assessed.

Here, a judgment was rendered against Ames for $5,579.15 while that against Howard totaled $174,203.63 due to loss of production. It is inequitable that costs should be shared equally by Ames and Howard. In addition, in holding with our previous decision in this matter, Northwest is now cast in judgment for the amount upon which the trial court assessed to Howard. Disparity in the amount of award to Borden by the respective appellees dictates that the costs be borne proportionately with the awards assessed. In this instance, the judgment against Ames was approximately 3% of the total award granted to Borden. Thus, it is appropriate to assess Ames with 3% of the court costs, the remaining 97% to be borne by Howard and Northwest.

For the foregoing reasons, we reverse the trial court as to Howard and find liability in Northwest. The trial court’s finding that Ames is liable only for the property damage less the deductible stated in the policy is affirmed. Since it is in accordance with accepted accounting practices, the quantum of award determined by the trial court is affirmed. Additionally, Northwest should bear a proportional share of the costs.

For the above and foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and rendered in part, as follows:

It is ordered, adjudged and decreed that there be judgment herein in favor of Borden, Inc. and against Howard Trucking Company, Inc. and its insurer, Northwest Insurance Company, in solido, in the amount of $163,624.48, together with legal interest from date of judicial demand until paid, and for 97% of all costs.

It is further ordéred, adjudged and decreed that there be judgment herein in favor of Borden, Inc. and against Howard Trucking Company, Inc., and Antoy Williams Ames, an Underwriter at Lloyds, London, in solido, in the sum of $5,579.15, together with legal interest from date of judicial demand until paid and 3% of all costs of these proceedings.

It is further ordered, adjudged and decreed that there be judgment herein in favor of Borden, Inc. and against Howard Trucking Company, Inc., in the sum of $5,000.00, together with legal interest from date of judicial demand until paid.

It is further ordered, adjudged and decreed that the judgment in favor of Northwest Insurance Company and against Borden, Inc., dismissing all claims of Borden, Inc. against Northwest Insurance Company, is hereby reversed.

In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

      . The exclusionary clause ruled upon in Borden v. Howard, supra, was the clause contained in Northwest’s comprehensive automobile policy. However, Howard Trucking purchased three insurance policies from Northwest Insurance Co. The first was a comprehensive automobile liability insurance policy, the second was a contractual liability insurance policy, and the third was a comprehensive general liability insurance policy. It is obvious that it was the intention of Howard Trucking Co. to purchase complete coverage so that in the event of any loss of whatever nature, insurance would be provided to protect Howard Trucking Co. from the ravages of any sort of claim by the injured parties. In support of this interpretation, we find also that Howard purchased from Lloyds of London a $5,000 deductible policy which would provide coverage for the exclusion in Northwest’s automobile policy. The Lloyds of London coverage did this but did not provide for any intangible losses. Taken as a whole, it is obvious that Howard set out to insure themselves against any and all contingencies. The policies themselves clearly illustrate this point.

      . Particularly significant are the comprehensive general liability insurance policy provisions, which read as follows:
      “Coverage A — BODILY INJURY LIABILITY
      “Coverage B — -PROPERTY DAMAGE LIABILITY
      “The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
      “A. bodily injury or
      “B. property damage
      “to which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company’s liability has been exhausted by payment of judgments or settlements. (Emphasis added).
      “Exclusions
      “This insurance does not apply:
      ♦ Jfc * # * *
      “(m) to loss of use of tangible property which has not been physically injured or destroyed resulting from (Emphasis added)
      “(1) a delay in or lack of performance by or on behalf of the Named Insured of any contract or agreement, or
      “(2) The failure of the Named Insured’s products or work performed by or on behalf of the Named Insured to meet the level of performance, quality, fitness or durability warranted or represented by the Named Insured: “but this exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of the Named Insured’s products or work performed by or on behalf of the Named Insured after such products or work have been put to use by any person or organization other than an Insured;”
      if: sf: ‡ % if: ;ft
      The intent of the parties then is that this comprehensive general liability provision should be all inclusive in its coverage save for those “occurrences” which are specifically and unambiguously excluded.
      The only exclusionary provision dealing with liability for loss of use deals with loss of use where the “tangible property ... has not been physically injured or destroyed ...” Here, the compressor was physically damaged, thus vitiating this exclusion and mandating payment under the comprehensive liability provision.

      . Borden, Inc. v. Howard Trucking Co., Inc., 372 So.2d 242 (La.App. 1st Cir.1979), writ denied, 373 So.2d 544 (La.1979).

      . “6. THIS POLICY does not insure the liability of the insured for:

      “(c) Loss of market, delay, loss of use or any other remote or consequential loss;”