author: LANIER, Judge.

text:
    Mamie J. McCLELLAND v. SECURITY INDUSTRIAL INSURANCE COMPANY.
    No. 82 CA 0237.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied March 25, 1983.

      John W. Anthony, Bogalusa, for plaintiff.
    Victor L. Marcello, Donaldsonville, for appellant.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit in contract by the beneficiary of a policy of life insurance to collect the $1,250.00 face value of the policy and for statutory penalties. The insurer defended this action alleging that a false statement was made in the insured’s application for coverage, that the insured was not in sound health when the policy was issued, and that the beneficiary was es-topped from pursuing her claim under the doctrine of accord and satisfaction. The trial judge rendered judgment in favor of the beneficiary for the face value of the policy, but denied her claim for statutory penalties. The insurer took this suspensive appeal. The beneficiary answered the appeal alleging that the trial court committed error by not awarding statutory penalties and sought damages for a frivolous appeal.

I. FACTS

Pursuant to an application for insurance dated January 11,1978, the Security Industrial Insurance Company (Security) issued a policy of insurance to Gaerdet Brooks on January 15, 1978, with a death benefit of $1,250.00. Mamie J. McClelland was designated as the beneficiary of this policy. On October 25,1978, Brooks died of a mediasti-nal shift, ruptured lung cyst, and bronchial asthma. On November 8, 1978, McClelland filed a claim with Security for the proceeds of the policy. Security determined that it would not pay the policy benefits and issued a check to McClelland dated February 20, 1979, in the sum of $62.00 representing a return of the ten monthly premiums of $6.20 that she had paid on behalf of Brooks. The following language appeared on the reverse side of this check:

“The endorsement of this check by the payee is in full and final settlement of all claims represented by Policy Number 2166756”

Immediately under this statement was a signature block designated “Payee”. McClelland endorsed the check on the line designated “Payee” and cashed it. This suit followed.

II. GOOD HEALTH CLAUSE

Security resists liability in this case on the basis of the “good health” clause found in the policy. The policy specifically provides as follows:

“No obligation is assumed by the Company until the first premium has been paid in full and this Policy delivered and accepted by the Insured (or his/her guardian) and while the policyholder is alive and in good health.”

Louisiana courts have recognized that good health clauses in life insurance policies are not contrary to public policy and are enforceable. Such provisions clearly evidence an intention of the insurer to make the insured’s sound health a condition precedent to the viability of the contract. The burden is on the insurer to prove by clear and convincing evidence that the insured was not in good health on the effective date of the policy, which in this case is January 15, 1978. Ryan v. Security Industrial Insurance Company, 386 So.2d 939 (La.App. 3rd Cir.1980); Martin v. Security Industrial Insurance Co., 367 So.2d 420 (La.App. 2nd Cir.1979), writ denied 369 So.2d 1364 (La.1979).

To show Brooks’ medical condition at the time the policy was issued, Security introduced into evidence his medical records from the Washington-St. Tammany Charity Hospital. These records show that Brooks was a known asthmatic since 1963, and was admitted to the hospital on many occasions for this condition. He was admitted to the hospital on October 12, 1977, for diagnostic studies and was discharged on October 14, 1977. His condition was diagnosed as bul-lous emphysema with mild pulmonary fibrosis and status asthmaticus. He returned to the hospital on November 9, 1977, December 14, 1977, and January 4, 1978, for prescription refills and followup examinations. On May 11, 1978, he was readmitted to the hospital and was subsequently discharged on May 20, 1978. During this period, he was treated for upper respiratory tract infection and chronic obstructive pulmonary disease. However, the insured’s application for insurance shows that on January 11, 1978, he was employed as a truck driver for the Angie Lumber Company. There is no expert medical evidence in the record to explain the precise nature of the insured’s medical condition at the time that the policy was issued. There is no expert medical testimony in the record as to whether or not his medical condition could be classified as good, fair, or bad health. See, for example, Audubon Life Insurance Co. v. Lauzervich, 242 So.2d 589 (La.App. 1st Cir.1970). Since Security’s records indicate that the insured was employed immediately prior to the effective date of the policy, and because there is no medical evidence of record to classify or explain the medical condition of the insured on the effective date of the policy, the trial judge was not clearly wrong in determining that Security had failed to prove that the insured was not in good health by clear and convincing evidence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

III. FALSE STATEMENTS AFFECTING COVERAGE

Question 6A in Security’s application for insurance provides as follows:

“6.A. Is proposed insured now in good health without any impairment? Yes [] No[]”

The answer “Yes” is checked off.

Question number 10 provides as follows:

“10. When last sick or consulted a doctor: month, year, illness, disease, injury, etc.”

The word “none” is written in reply to this question.

Question number 11 provides as follows:

“11. Has proposed Insured ever had tuberculosis, asthma, any disease of lungs, apoplexy, paralysis, heart disease, high blood pressure, mental or nervous disorder, epilepsy, convulsions, syphilis, rheumatism, arthritis, rupture, disease of circulatory system, stomach, intestines, liver, gall bladder, prostate, or thyroid gland, sugar, albumin or blood in urine, diabetes, cancer, tumor, ulcer, impaired sight or hearing, any imputation, deformity, operation? Yes No”

The answer “No” is circled on the original application. Security claims that the answers to these questions are false because Brooks was suffering from emphysema and bronchial asthma at the time that the application was submitted.

A false statement made by a prospective insured in an application for life or health and accident insurance will bar recovery if it is made with the intent to deceive or it materially affects the risk. La.R.S. 22:619(B); Coleman v. Occidental Life Insurance Company of North Carolina, 418 So.2d 645 (La.1982); Topps v. Universal Life Insurance Company, 396 So.2d 394 (La.App. 1st Cir.1981). The burden is on the insurer to prove this defense. Cousin v. Page, 372 So.2d 1231 (La.1979). Strict proof of fraud is not required, and the intent to deceive is to be determined from the attending circumstances indicating knowledge of the falsity and recognition of the materiality of the false statement, or from circumstances which create a reasonable assumption that the materiality of the misrepresentation was recognized. Thompson v. Business Insurance Life of America, 413 So.2d 331 (La.App. 3rd Cir.1982).

Mamie McClelland testified that on January 11,1978, Ernestine Henry, an agent for Security, came to her home to discuss purchasing several insurance policies. McClel-land was primarily interested in securing policies for herself, her daughter, and her mother, but also determined to get one for Brooks with whom she had been living for the last six years. Henry only asked Brooks for his age, date of birth, and address. Henry did not ask any questions concerning Brooks’ health. Henry filled out the application and Brooks signed it. McClelland knew that Brooks was sick, but did not know then that he had emphysema. The only three persons on the premises at the time were Brooks, McClelland and Henry. McClelland’s daughter was at school and her mother was in Mississippi. Brooks left the premises after the insurance business was completed.

Ernestine Henry testified that on January 11,1978, she was an agent for Security and went to visit Mamie McClelland on insurance business. Present in the home at that time were McClelland, Brooks and McClelland’s mother and daughter. Shortly after Henry arrived on the premises, Brooks left before she had an opportunity to speak with him. After some discussion, McClel-land bought policies on herself, her mother and her daughter. Then McClelland determined to get a policy on Brooks. Henry admitted that the handwriting on the Brooks’ application is hers, except for Brooks’ signature. Brooks did not sign the application because he was not present, but Henry did not remember who signed for him. Henry asked question number 6A to McClelland and McClelland’s response to the question was “fair”. Henry construed “fair” to mean that Brooks had nothing wrong and checked the square for “Yes”. Henry did not ask any further questions concerning Brooks’ health and McClelland did not furnish any additional information. Apparently, Henry supplied the answers to questions 10 and 11 on her own.

Faced with this conflicting testimony, the trial judge accepted the facts as related by Ernestine Henry with the following observations in his excellent reasons for judgment:

"... At the time this policy was applied for, plaintiff knew that the proposed insured was sick although she did not know that he had emphysema. She thought that he had asthma when the policy was applied for but did not reveal this to defendant’s agent. Mrs. Henry did not ask plaintiff to elaborate on the reason why plaintiff classified the insured’s health as ‘fair’. Mrs. Henry should have delved further into the question of insured’s health as to why he was not in good health. This Court has no indication whatsoever that plaintiff would not have answered such questions concerning the state of the insured’s health truthfully. This Court finds that the record does not establish that plaintiff intended to deceive this insurance agent in applying for this insurance.... ”

This factual finding by the trial judge is not clearly wrong. Arceneaux v. Domingue, supra.

According to the testimony of Henry (which was accepted by the trial judge), it was she, and not the insured or beneficiary, who put the inaccurate statements in the application. Security is bound by these actions of its agent. Bertrand v. Protective Life Insurance Co., 419 So.2d 1254 (La.App. 3rd Cir.1982). The actions of the agent do not bind the insured or his beneficiary. Further, the evidence does not show that McClelland’s categorization of Brooks’ health as “fair” is false. The application for insurance (Security’s record) shows that Brooks was employed as a truck driver for a lumber company and thus was not disabled from working. There is no expert medical evidence of record to show whether or not Brooks’ medical condition at that time could be classified as “fair”.

IV. ACCORD AND SATISFACTION

Security contends that Mamie McClelland is estopped from pursuing this claim under the doctrine of accord and satisfaction because she endorsed and cashed the $62.00 check bearing the statement that it was in full and final settlement of all claims under the Security policy.

The doctrine of accord and satisfaction is a jurisprudentially created method by which an obligation can be extinguished. Necessary for the application of this doctrine are a disputed claim, a tender of payment for less than the amount of the claim by the debtor, and an acceptance of the tender by the creditor. Essential to a valid accord and satisfaction is that the creditor understands that the payment is tendered in full settlement of the dispute. Adams v. Sconza, 380 So.2d 679 (La.App. 4th Cir.1980); Louisiana National Bank of Baton Rouge v. Heindel, 365 So.2d 37 (La.App. 4th Cir.1978); Eppling v. Jon-T Chemicals, Inc., 363 So.2d 1263 (La.App. 4th Cir.1978); Terra Trucks, Inc. v. Weber, 346 So.2d 275 (La.App. 4th Cir.1977); Charles X. Miller, Inc. v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir.1975); Antoine v. Elder Realty Company, 255 So.2d 625 (La.App. 3rd Cir.1971); Linda Mercantile Corporation v. Bowers, 230 So.2d 302 (La.App. 1st Cir.1969), writ refused 255 La. 810, 233 So.2d 250 (1970).

The learned trial judge analyzed the evidence on this issue in his reasons for judgment as follows:

“... After observing plaintiff and listening to her testimony, this Court concludes that plaintiff was not an educated individual and was not versed in the field of insurance. Plaintiff testified that she saw defendant’s agent, Mrs. Henry, the day after the insured’s death when Mrs. Henry told plaintiff to get a death certificate and the insurance would be paid. Pursuant to this communication, plaintiff took the insurance policy and a death certificate to Mrs. Henry’s office about two weeks after the insured’s death. Plaintiff left the policy and death certificate at Mrs. Henry’s office. Mrs. Henry was not in her office at the time. Plaintiff further testified that she later saw Mrs. Henry when she brought plaintiff a check at a drive-in eatery where plaintiff worked as a cook. Plaintiff testified that Mrs. Henry told her then that a check for $62 was being given her representing a refund of premium since deceased had not been insured long enough to be under the policy. In spite of this communication to plaintiff, she testified that she did not understand that defendant would not pay the policy. She did not understand that this check was to represent full settlement of her claim. Plaintiff stated that Mrs. Henry did not tell her that the check was for full settlement and did not read the check to her. When plaintiff signed the cheek she did not read the printed information above her signature, which was the release language.
“Mrs. Henry testified that she saw plaintiff only for about five minutes at this drive-in where she presented plaintiff with the check. Mrs. Henry further testified that at the drive-in she told plaintiff that she had a check for her since the company would not pay the policy because of health problems.
“This Court is impressed with the fact that plaintiff did not realize that this premium refund check was being tendered to her in full settlement of her claim. Defendant's agent had already told plaintiff that the policy would be paid upon presentation of a death certificate. Without any further communication with plaintiff, Mrs. Henry shows up at plaintiff’s place of employment with a $62 check which was handed plaintiff with the statement that the check represented a refund of premium since the deceased had not been insured long enough to be under the policy.
“This Court finds that plaintiff did not understand defendant’s agent’s brief communication in receiving this check in light of her having been told by defendant’s agent that the policy would be paid upon presentation of a death certificate. In addition, plaintiff did not read the release language on the back of the check when she executed it. In light of these facts, this Court finds that plaintiff did not understand that this $62 was being tendered in full settlement. There was no informed consent in plaintiff’s acceptance of this $62 check. Charles X. Miller, Inc, v. Oak Builders, Inc., supra. The defendant has not proven the defense of accord and satisfaction.... ”

These findings by the trial judge are not clearly wrong. Arceneaux v. Domingue, supra.

Counsel for the appellant asserted in oral argument before this court that one who signs a written instrument (like McClelland herein) is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, or that it was not explained, or that he did not understand it, citing Ideal Loan of New Orleans, Inc. v. Johnson, 218 So.2d 634 (La.App. 4th Cir. 1969).

The doctrine of accord and satisfaction is a common law concept judicially incorporated in Louisiana jurisprudence and is grounded on basic contractual principles. Berger v. Quintero, 170 La. 37, 127 So. 356 (1930); Charles X. Miller, Inc. v. Oak Builders, Inc., supra, It is hornbook contract law that the courts are bound to give legal effect to all written contracts according to the true intent of the parties and this intent is to be determined by the words of the contract when these are clear, explicit and lead to no absurd consequences. La.C.C. art. 1945; Campesi v. Margaret Plantation, 417 So.2d 1265 (La.App. 1st Cir.1982), writ denied 422 So.2d 163 (La.1982). The meaning and intent of the parties to the written contract in such cases must be sought within the four comers of the instrument and cannot be explained or contradicted by pa-rol evidence. La.C.C. art. 2276; Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir.1982). In such cases, the presumption asserted by the appellant comes into play and is conclusive. Eppling v. Jon-T Chemicals, Inc., supra. However, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, pa-rol evidence is admissible to clarify the ambiguity and to show the intention of the parties. Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981).

The restrictive endorsement in the instant case is clear and explicit in providing that it “is in full and final settlement of all claims represented by” the policy. However, parol evidence concerning the intention and understanding of the parties was admitted into evidence without objection. The failure to object to this evidence in the trial court constitutes a waiver of the right to assert the presumption and a waiver of the right to complain about the trial judge’s consideration of the evidence. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La. 1976); Belaire v. Vanderbrook, 405 So.2d 1143 (La.App. 1st Cir.1981), writs denied 407 So.2d 749 (La.1981) and 409 So.2d 659 (La.1982).

Y. STATUTORY PENALTIES

McClelland contends that the trial judge committed error by failing to award statutory penalties pursuant to La.R.S. 22:656. That statute provides that if the insurer fails to pay a death claim under a life insurance policy within sixty days after the date of receipt of the proof of death, that the amount due under the policy shall bear interest at the rate of 6% per annum from date of receipt of the proof of death until paid. The trial judge ruled that the insurer had reasonable grounds to believe that it had a valid defense to payment of the beneficiary’s claim. After carefully reviewing the facts and the law in this case, we are satisfied that this ruling of the trial judge is correct.

VI. FRIVOLOUS APPEAL

McClelland contends that she is entitled to an award of damages for frivolous appeal pursuant to La.C.C.P. art. 2164. This statute is penal in nature and must be strictly construed. Jackson v. East Baton Rouge School Board, 348 So.2d 739 (La.App. 1st Cir.1977). Damages for frivolous appeal will not be granted unless they are clearly due. Maxwell v. State, Department of Transportation and Development, 391 So.2d 1230 (La.App. 1st Cir.1980), writ denied 394 So.2d 281 (La.1980); Jenkins v. Dicon, Inc., 387 So.2d 649 (La.App. 1st Cir.1980). A review of the record shows that there were serious factual disputes between the parties. There is no evidence of record to show that this appeal was taken solely for delay or that there was no serious belief as to the merits of the appeal. We believe that this appeal was reasonably taken as a genuine effort to win a reversal, and accordingly, damages for frivolous appeal are not due.

VII. CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed. Security is to pay all costs of this appeal.

AFFIRMED.

      . The insured’s first name is alternately spelled “Gaurdet” and “Gaundet” in the death certificate. The insured’s first name is spelled “Gau-det” in the records of the Washington-St. Tammany Charity Hospital.

      . By requiring a meeting of the minds between the parties as to exactly what they intend and requiring that the creditor understands that the payment is tendered in full settlement, the doctrine of accord and satisfaction is identical to its more formal cousin, the doctrine of compromise. La.C.C. arts. 3071, 3073 and 3079; Moo-neyhan v. State Farm Mutual Automobile Insurance Company, 290 So.2d 405 (La.App. 2nd Cir. 1974); Lowery v. Anderson, 265 So.2d 644 (La.App. 2nd Cir.1972); Harris v. Stockman, 197 So.2d 365 (La.App. 2nd Cir.1967).

      . See also Lama v. Manale, 218 La. 511, 50 So.2d 15 (1950); Jackson v. Continental Casualty Company, 402 So.2d 175 (La.App. 1st Cir. 1981), reversed on other grounds 412 So.2d 1364 (La.1982); Mitchell v. Bertolla, 397 So.2d 56 (La.App. 2nd Cir. 1981), writ denied 400 So.2d 669 (La.1981); Lazybug Shops, Inc. v. American District Telegraph, 374 So.2d 183 (La.App. 4th Cir.1979), writ denied 376 So.2d 1271 (La.1979); Leny v. Friedman, 372 So.2d 721 (La.App. 4th Cir.1979), writ denied 375 So.2d 943 (La.1979); South Central Bell Telephone Company v. McKay, 285 So.2d 563 (La.App. 1st Cir.1973).

      . The apparent reason for the use of this doctrine is to avoid the more formal requirements of the doctrine of compromise, La.C.C. arts. 3071 et seq., when extinguishing obligations.

      . La.R.S. 22:656 was amended by Act 477 of 1980 to provide 8% penalty interest. This claim accrued prior to the effective date of that Act.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    ASSOCIATES COMMERCIAL CORPORATION v. BAYOU MANAGEMENT, INC., et al.
    No. 82 CA 0245.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.

      J. Glenn Dupree, Baton Rouge, for plaintiff-appellant Associates Commercial Corp.
    Russell J. Nunez, Jr., New Orleans, for defendants-appellees Bayou Management, Inc., et al.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is an appeal by the plaintiff and defendant-in-reconvention from a judgment of the district court awarding it an amount less than it had sought on the main demand against the defendants and plaintiffs-in-re-convention, and awarding certain sums of money on the reconventional demand. The defendants and plaintiffs-in-reconvention have answered the appeal seeking a reduction in the award to plaintiff and a modification of the judgment rendered in their favor.

Associates Commercial Corporation entered into a lease with James R. McAndrew, Vernon G. Bratten, Jr., and J.H. Harris on October 3, 1978, under which certain office space in the Oaks of Kingsbridge Professional Building was rented to Associates at a monthly rental of $1,356.25 for a term of five years from December 1, 1978 through November 30, 1983. By giving advance written notice, lessee could terminate the lease effective November 30, 1981 upon payment of a penalty of three months’ rent. Associates could sublease the leased premises with the prior written consent of the lessors. During the summer of 1980, lessee advised the rental agent of the lessors of its requirement of additional space. The required space was unavailable in the office building, so Associates approached lessors’ agent about a sublease arrangement with Catalytic, Inc., another tenant in the building, which wanted more space. When Associates requested permission to sublet to Catalytic, the request was denied. Although the facts are disputed thereafter, it appears that Associates deposited with Bayou Management, Inc., a sum of money representing the rent for the following twelve months and the amount of the early-termination penalty, paid the rent for the month of November, 1980, and then vacated the premises at the end of October, 1980. Shortly thereafter, the owners leased the office space which had been occupied by Associates to Catalytic, Inc., at more rent than Associates had paid under its lease. Associates filed suit against the owners and Bayou Management, Inc., seeking cancellation of the lease, damages, and return of its deposit, penalty and November rent. The defendants answered the suit and filed a reconventional demand seeking additional rent, building operating costs and the penalty for early termination.

After the trial, the lower court decided that there should be a judgment for certain sums in favor of the lessee, offset by certain sums in favor of the lessors on their reconventional demand. In reaching its decision, the trial court found that Associates had the right under the lease with the defendants to sublease with the prior written consent of the lessors. The court also found that Catalytic was a suitable tenant, remarking that the “best proof possible” that Catalytic had all the requirements that a lessor might be looking for in a lessee was the fact that the owners, after refusing to consent to the sublease, leased the space previously leased by Associates directly to Catalytic. The court took into consideration the testimony by one of the owners, Mr. Harris, that the owners were not interested in a sublease to Catalytic because they had a proposed business transaction whereby they would build a new building in the vicinity and lease it to Catalytic. Under the circumstances, the trial judge found that the owners were arbitrary in their refusal to consent to Associates’ subleasing to Catalytic. The court then cancelled the lease and awarded damages to Associates: first, the sum of $1,356.25, representing the November, 1980 rent; second, the “excess” rent in the sum of $2,406.25, being the difference between Associates’ rental and that paid by Catalytic ($218.75 monthly for eleven months); and third, the return of the $20,343.75 paid by Associates to the defendants, plus interest. On the reconven-tional demand, the trial court found for the lessors, allowing them the sum of $1,310.80, representing rent from October 5 through November 3, 1981; awarding them the increase of building costs from 1979 through 1980 in the amount of $710.33. The court also allowed the lessors the sum of $4,068.75, representing a three-month penalty for early termination by the lessee. The claim for attorney fees was denied.

The lease in the instant case does not absolutely prohibit subleasing, but merely requires the prior written consent of the lessors. Consequently, Associates contends that the lessors’ refusal of consent should not be judicially enforced if in light of all the circumstances it was an abusive exercise of lessors’ rights. The law is established that whenever a lease provides that the lessor’s written consent must first be obtained before subleasing is permitted, such a provision connotes that when the lessee obtains a suitable sublessee, the lessor cannot arbitrarily withhold consent. Gamble v. New Orleans Housing Mart, Inc., 154 So.2d 625 (La.App. 4th Cir.1963), writ refused 244 La. 1027, 156 So.2d 299 (1963). We are not impressed by the lessors’ assertion on appeal that Catalytic was not a willing sublessee. When Associates broached the subject of Catalytic as a subtenant, the lessors unequivocally refused to consider a sublease to Catalytic. Hence, any further efforts on the part of Assoei-ates to secure Catalytic as its subtenant would have been futile.

The right to cancel is given reciprocally to lessor and lessee if either violates the lease. LSA-C.C. art. 2729. We find that the lessors abrogated the lease by arbitrarily refusing to allow the lessee to sublease to a suitable tenant; thus Associates was entitled to cancel the lease as the trial court held. Yardumian v. Beals, 341 So.2d 626 (La.App. 4th Cir.1977); Moore v. Bannister, 269 So.2d 291 (La.App. 4th Cir.1972).

We find the case of Illinois Central Gulf Railroad Company v. International Harvester Company, 368 So.2d 1009 (La.1979), cited by appellees, factually distinguishable. In the cited case, the lessor’s withholding of consent was based on “a serious and legitimate” motive. The lessee’s surreptitious subleasing to a subtenant in a different business which changed the use of the premises, despite the lessor’s objection to the particular sublease, the drastic change in economic conditions, and the lessor’s expressed willingness to accommodate the lessee were all factors considered by the Court in reaching its conclusion.

On the question of damages on the main demand, we find that the trial court correctly refunded to Associates the $20,-343.75 in rental payments made under protest to the lessors, plus the interest earned on that amount, and correctly awarded Associates the sum of $2,406.25, representing the “excess” rent that the lessors received over and above what Associates would have paid during the period of time in question. Cohn Realty Company, Inc. v. Able Moving and Storage Company, Inc., 402 So.2d 106 (La.App. 1st Cir.1981); Reed v. Classified Parking System, 324 So.2d 484 (La.App. 2d Cir.1975). We find that the trial court erred in awarding Associates the sum of $1,356.36, representing the November, 1980 rent. The record shows that Associates gave the lessors every indication that it intended to remain in the leased premises through November 1980. When Associates tendered the $20,343.75 under protest by letter dated October 30, 1980, this sum did not include the November rent. Testimony shows that the November, 1980 rent was paid separately by Associates, and that no one from Bayou Management, on behalf of the lessors, entered the premises prior to December 1, 1980. We thus conclude that inasmuch as the November, 1980 rent was paid by separate check (not included in the sum paid under protest by Associates), then the lessee intended to retain the premises through that month. Furthermore, the record is devoid of any evidence that Catalytic would have leased the premises prior to December 1,1980. The burden to establish a claim for the November, 1980 rent in the sum of $1,356.25, was on the plaintiff. Koncinsky v. Smith, 390 So.2d 1377 (La. App. 3rd Cir.1980). Plaintiff has not satisfied this burden; therefore, this claim must be denied.

With regard to the reconventional demand, we find that the trial court erred in allowing the lessors the sum of $4,068.75 under the early-termination clause. As set out above, the lease was not terminated at the option of the lessee, or due to default by the lessee; it was terminated because of breach by the lessors. Under the lease the lessors were entitled to exercise the three-months’ rent penalty clause only in the event Associates chose to terminate the lease at an early time (November, 1981). Such event did not occur. We also find that the trial court erred in allowing the lessors the sum of $1,310.80, representing rent for October 5 through November 3, 1981, inclusive. A lessor whose breach of the lease forms the basis for cancellation of the lease cannot recover rent for the unexpired term of the lease. Campo v. LaNasa, 173 So.2d 365 (La.App. 4th Cir.1964), writ denied 247 La. 874, 175 So.2d 109 (1965).

Accordingly, for the above reasons the judgment rendered in favor of Associates Commercial Corporation against James R. McAndrew, Vernon G. Bratten, Jr. and J.H. Harris in the amount of $24,106.25 is reduced by $1,356.26 to the sum of $22,749.99, together with all interest earned on the deposit made to the lessors of $20,343.75, together with all costs pertaining to the main demand; and the award on the recon-ventional demand in favor of James R. McAndrew, Vernon G. Bratten, Jr. and J.H. Harris in the amount of $6,089.88 is reduced by $5,379.55, to the sum of $710.33, together with all costs of the reconventional demand. The costs of the appeal are to be shared equally by appellant and appellees.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Subsequent to the trial on the merits, the trial-court dismissed Bayou Management, Inc. from the suit as a party defendant, finding that it was acting as agent for McAndrew, Bratten and Harris.

      . At the close of the trial, the trial court rendered judgment, awarding plaintiff the sum of $24,106.25, together with all interest earned by defendants on money advanced by plaintiff, on the main demand, and awarding defendants $6,089.88 pursuant to their reconventional demand.

      .This matter was previously before this court on a motion to dismiss the appeal, 415 So.2d 557 (La.App. 1st Cir.1982), on the ground of acquiescence in the judgment. The motion was denied.


author: CARTER, Judge.

text:
    Carolyn Rhea STOREY v. LAMBERT’S LIMBS & BRACES, INC., and Lloyd C. Jones.
    No. 82 CA 0287.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied April 15, 1983.

      Dennis R. Whalen, Baton Rouge, for plaintiff-appellant Carolyn Sue Storey.
    Charles W. Wilson, III, Baton Rouge, for defendants-appellees Lambert’s Limbs & Braces, Inc. and Lloyd C. Fines.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is an appeal from a judgment rendered by the trial court in favor of plaintiff, Carolyn Rhea Storey, and against defendants, Lambert’s Limbs & Braces, Inc. and Lloyd C. Jones, in solido. Plaintiff filed suit against the defendants seeking restitution of the purchase price, damages and attorney’s fees for a defective foot brace. The trial judge awarded plaintiff $15,902.14 finding defendants liable both in contract (redhibition) and in tort (products liability).

Plaintiff has appealed seeking an increase in the amount of damages, contending that the trial court erred in failing to assess any damages for scarring or mental pain and anguish.

Defendants answered plaintiff’s appeal assigning as error the trial court’s determination that the foot brace was defective.

The trial judge adequately summarized the sequence of events leading to the filing of this suit as follows:

“Carolyn Rhea Storey suffered spinal cord damage as the result of a motorcycle accident in 1974. One of the effects of her injury is a condition known as ‘drop foot’ in which all feelings and muscular control of the foot is lost. A supportive brace enables Ms. Storey to walk without dragging the disabled foot. The device is attached at the calf and extends into her shoe where a thin piece of plastic supports her foot from underneath. In this way the foot is kept at a right angle to her leg.
Upon the advice of her orthopedic surgeon, Ms. Storey went to Lambert’s Limbs and Braces for a replacement brace in 1978 when the original brace wore out. When she first tried it on, the new brace appeared to Ms. Storey to be too short and narrow although she could not tell by feeling. Mr. Lloyd C. Jones, the Lambert’s employee who was assisting Ms. Storey, directed her to wear the brace anyway. She returned to Lambert’s at least three times in her attempts to obtain a proper fit. Each time some adjustment was made, and Ms. Storey was told to continue wearing the brace. Eventually a decubitous ulcer developed on the outside edge of her right foot near the small toe as a result of the brace’s continuous rubbing.
Dr. F.A. DeJean, another of Ms. Sto-rey’s physicians, hospitalized her for treatment of the sore. He grafted skin from the front of her right thigh to the ulcer on the right foot. The donor site soon became infected, and she had to be re-hospitalized for treatment of the complications. The second stay included four days in intensive care.”

A plaintiff who is injured by a defective product which he has purchased has a cause of action for the rescission of the sale against the seller-manufacturer, and a cause of action in tort for the personal injuries suffered, and reasonable attorney’s fees. Philippe v. Browning Arms Co., 395 So.2d 310 (La.1981); Rey v. Cuccia, 298 So.2d 840 (La.1974); Harris v. Bardwell, 373 So.2d 777 (La.App. 2d Cir.1979).

Under LSA-C.C. art. 2520, redhibition is defined as follows:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The recovery granted to a purchaser suing in redhibition is governed by LSA-C.C. arts. 2531 and 2545. When the thing sold has a redhibitory defect, the seller-manufacturer “who knew not of the vices of the thing” is only liable for the return of the price and the expenses of the sale. LSA-C.C. art. 2531. However, the seller-manufacturer who knows of the vice of the thing sold and fails to warn is also answerable for damages and reasonable attorney’s fees. LSA-C.C. art. 2545. Philippe v. Browning Arms Co., supra.

A manufacturer in Louisiana is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them. Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (La.1971). In the instant case, Lambert’s is the manufacturer and seller of the foot brace which plaintiff alleges to be defective.

To prevail in an action for redhibition, the purchaser must establish that the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient that it must be supposed that the purchaser would not have made the purchase had he known of the defects. He must also prove that the defects existed at the time of the purchase, but were neither known nor apparent to him, and that seller could not, or would not, correct the defects when given the opportunity to do so. Associates Financial Services Co. v. Ryan, 382 So.2d 215 (La.App. 3d Cir.1980); Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir.1976).

The plaintiff purchased the brace from Lambert’s and returned numerous times in an effort to achieve a proper fitting. These attempts to achieve a proper fitting of the foot brace proved to be of no avail. The improperly fitted brace caused an ulcer to develop on her right foot. It is obvious that plaintiff would not have purchased the foot brace had she known of the defect in it at the time of purchase; the defect more specifically being its rubbing off the skin of the right foot.

It is also clear that this defect existed at the time of the sale. The fact that the plaintiff continued to wear the brace cannot be said to be an intervening cause of the damages because she was following the express direction and instructions of Lambert’s employee. Lambert’s, as the manufacturer of the brace, was not only presumptively aware of its defective condition, as stated in Weber v. Fidelity & Casualty Insurance Co. of N.Y., supra, but also had actual notice of the defect through the numerous attempts to have the brace fitted properly. Therefore, Lambert’s is a bad faith seller as defined in LSA-C.C. art. 2545, and thus is answerable to plaintiff for restitution of the purchase price, repayment of expenses (including attorney’s fees) and damages.

The next cause of action alleged by plaintiff against Lambert’s is the breach of its duty as a manufacturer to produce an item reasonably safe for its intended use. A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether purchaser or third party, who without fault, sustains injury caused by a defect in the design, fabrication or manufacture of the article, if the injury might have been reasonably foreseeable or anticipatable. Leathern v. Moore, 265 So.2d 270 (La.App. 1st Cir.1972).

In Leathern v. Moore, supra, the court made the following statement concerning a manufacturer’s duty:

P. 276:
“The foregoing rule requires the manufacturer to exercise reasonable care in the design of its products which are of such nature that, if not carefully made, can cause foreseeable injury to persons using the products for purposes which the manufacturer may reasonably expect they will be employed, and also to those whom the manufacturer may reasonably expect to be endangered by such probable use. Failure to exercise such care renders the manufacturer liable if injury results from lawful use of the product in a manner and for a purpose which the manufacturer may be deemed to reasonably expect.”

In response to this allegation on the part of plaintiff, Lambert’s contends that plaintiff misused the brace by wearing it after the ulcer developed. The trial court found that there was no misuse of the brace on the part of the plaintiff. The continued use of the brace was done upon the advice of Lambert’s employee. The trial court found that plaintiff did all she could to alleviate the problem, she followed the advice of those supposedly superior in knowledge about the use of the brace.

The evidence clearly supports the conclusion of the trial judge that the cause of plaintiff’s injury was the use of the foot brace in the manner for which the seller intended.

The final cause of action asserted by the plaintiff in her petition is that Lambert’s and its employee, Jones, are liable to her in damages for their negligence in failing to properly fit her with a foot brace. Plaintiff alleges that the improper fitting caused a decubitous ulcer on her right foot which required skin grafting. The donor site later became infected and caused plaintiff to be re-hospitalized for treatment of complications due to the infection.

Much like members of the medical profession, prosthetists should exercise the degree of skill “... ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence along with his best judgment in the application of his skill to the case.” Butler v. Louisiana State Board of Education, 331 So.2d 192 (La.App. 3d Cir.1976), writ refused, 334 So.2d 230. Thus, Lambert’s and its employee, Jones, are subject to a very high standard of care.

In applying the above standard of care to the actions of Lambert’s and Jones, the trial court correctly stated the following:

“... Those in the business of manufacturing prosthetic devices would be presumed to have a working knowledge of the malady being treated. This knowledge would include an awareness that people with drop foot have no feeling in the foot. The profession’s high standard of care would require an attentive, careful fitting of any brace that could possibly injure the foot without the patient feeling any pain. Lambert’s [and Jones], by its failing to initially or subsequently adjust the brace for a proper fit, fell below the standard of care and breached its duty to provide skilled treatment.”

We conclude that Lambert’s, as manufacturer-seller is liable contractually for restitution of the purchase price, damages and expenses of the sale, including attorney’s fees under LSA-C.C. art. 2545. Lambert’s is also found delictually liable for the damages plaintiff has sustained as a result of Lambert’s unreasonably dangerous product, the foot brace.

Plaintiff complains on appeal that the trial court made no express award for scarring which occurred as the result of procedures necessary to effect the skin graft from “both the disfiguring aspect and the emotional aspect.” We agree that the trial court did not expressly set out in its formal judgment that such an award was being made. However, in his written reasons for judgment, the trial court recognized that skin grafting had occurred and stated:

“... Eventually a decubitous ulcer developed on the outside edge of her right foot near the small toe as a result of the brace’s continuous rubbing .... He grafted skin from the front of her right thigh to the ulcer on the right foot. The donor site soon became infected, and she had'to be re-hospitalized for treatment of the complications.”

The trial court awarded damages as follows:

Purchase price of the brace $ 151.41
Medical expenses 3,250.73
Pain and suffering 10,000.00
Attorney’s fees 2,500.00
Expert witness fees
Dr. F.A. DeJean 100.00
Dr. Allen Jackson 100.00

A careful examination of the entire record convinces us the totality of the award in the instant case effects substantial justice between the parties and will not be disturbed.

Lambert’s as a manufacturer-seller is liable contractually for restitution of the purchase price, damages and expenses of the sale, including attorney’s fees under LSA-C.C. art. 2545. Both Lambert’s and Jones are delictually liable for the damages sustained by plaintiff resulting from the negligent breach of the standard of care owed by prosthetists to their customers.

Although not assigned as error, it is noted that the trial court erred in rendering a judgment in solido against both Lambert’s and Jones as concerns attorney’s fees and the purchase price of the brace. Jones is only liable delictually resulting from his negligent breach of the standard of care owed by a prosthetist to his customers. Although Lambert’s and Jones are solidarily liable for the negligent fitting of the brace, Jones was not a manufacturer-seller under LSA-C.C. art. 2545 and is not liable for the purchase price of the brace or attorney’s fees.

Accordingly, for the above reasons, judgment is amended to provide judgment in favor of Carolyn Rhea Storey and against Lambert’s Limbs & Braces, Inc. and Lloyd C. Jones jointly and in solido in the following amounts:

Medical expenses $ 3,250.73
Pain and suffering (including scarring) 10,000.00
Expert witness fees 200.00
Total $13,450.73

The judgment is further amended to render judgment in favor of Carolyn Rhea Storey and against Lambert’s Limbs & Braces, Inc. in the following amounts:

Purchase price $ 151.41
Attorney’s fees 2.500.00
Total $ 2,651.41

The judgment of the trial court as above amended is affirmed. All costs of appeal are to be divided equally between the parties.

AMENDED AND AFFIRMED.

      . Rule 1-3, Uniform Rules, Courts of Appeal provides as follows:
      “The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5, § 10(B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.”


author: COLE, Judge.

text:
    Buna G. KINCHEN v. J.C. PENNEY COMPANY, INC., et al.
    No. 82 CA 0298.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.

      John deGravelles, Baton Rouge, for plaintiff-appellee.
    Bruce J. Borrello, Metairie, for defendant-appellant.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

This personal injury suit involves a slip and fall accident which occurred in the J.C. Penney store in Hammond, Louisiana. The trial court rendered a judgment in favor of plaintiff, and defendants Penney and its insurer have taken a suspensive appeal. We reverse.

The determining issue is whether or not the plaintiff proved by a preponderance of the evidence the existence of a premises hazard which was responsible for plaintiff’s fall.

On December 13, 1979, plaintiff went to the J.C. Penney store at Hammond Square shopping center to pick up a package. It had been raining off and on all day, and it was still misting, according to the plaintiff, when she parked her car a few feet away from Penney’s main entrance. This entrance was covered, and mats were apparently placed both inside and outside of Penney’s door. The plaintiff, a 49 year old woman, allegedly walked at a normal gait through the main entrance, wiped her feet on the inside mat, and took two or three steps past the mat before both of her feet slipped out from underneath her, causing her to fall hard on her back.

Mr. and Mrs. Joseph Booth were using a telephone near the entrance to Penney’s when plaintiff fell and they observed the accident. The Booths, who testified for the defendants, corroborated plaintiff’s testimony as to how the accident happened, including the fact that plaintiff was walking at a normal gait when she fell and that she had wiped her feet on the inside mat. However, both the Booths testified they saw nothing which would have caused plaintiff’s fall. They both observed the area in which plaintiff fell and both testified the floor was dry and it contained no debris or foreign substances of any kind. Mrs. Booth also testified the area outside the door under the covered main entrance was dry. Furthermore, the plaintiff also admitted she saw no puddles of water or any foreign substance on the floor which could have caused her fall. Mr. Robert Rosson and Mrs. Mamie Statham, Penney’s general manager and personnel supervisor, respectively, both arrived at the scene of the accident while plaintiff was still on the floor. They also inspected the area and found no wet spots or foreign debris or any skid marks from plaintiff’s fall.

After she fell, Mr. Booth immediately came to plaintiff’s aid. Plaintiff was complaining of neck pain, so Mr. Booth, a police detective, urged her to remain lying on the floor. Plaintiff testified the slippery condition of the floor prevented her from getting back to her feet, so she remained on the floor until the ambulance came about twenty minutes later. Booth stated he tried to determine why plaintiff fell and while she was on the floor he noticed her shoes, black nursing oxfords with a low wedge heel and rubber soles, and found the soles to be somewhat wet. He commented her shoes “were the kind of sole that reminded me of shoes I’ve had in the past, when they’re wet, they’re very slippery.” When the ambulance arrived and plaintiff was removed from the floor, Mr. Rosson felt the floor under where the plaintiff had been and found it to be free from debris or wet spots.

The owner of a business establishment must keep floors and passageways in a reasonably safe condition for use in a manner consistent with the purposes of the premises. Jones v. Recreation and Park Commission, Etc., 395 So.2d 846 (La.App. 1st Cir.1981). Since the owner of a business establishment is not the insurer of the safety of his customers, a breach of this duty must be shown before the storekeeper will be held liable for slip and fall injuries suffered on the premises. Martel v. Southern Farm Bur. Cas. Ins. Co., 368 So.2d 1192 (La.App. 3d Cir.1979).

Although no presumption of fault on the part of a storekeeper arises simply because a customer is injured on the premises, such a presumption does arise when the customer can prove his injury resulted from a “premise hazard,” and the burden of proof then shifts to the storekeeper to prove freedom from fault. Johnson v. Ins. Co. of North America, 360 So.2d 818 (La.1978); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Kavlich v. Kramer, 315 So.2d 282 (La.1975). A premise hazard was defined by the Johnson court to be a “condition of the premises or of the store operation that results in an unreasonable risk of harm to customers under the circumstances.” In the context of slip and fall cases, a premise hazard is shown when the fall results from a foreign substance on the floor (see, Gonzales and Kavlich, supra) or from an otherwise unreasonably slippery condition (see, Jones, supra).

The trial court held the plaintiff had proved adequately the existence of a premise hazard. It believed plaintiff’s fall must have resulted from the presence of water inside the store because of the testimony that plaintiff’s shoes were wet after she had wiped her feet on the mat inside the store. It also believed the floor was unreasonably slippery due to the manner in which both of plaintiff’s feet slipped out from under her. This finding was supported by testimony of the plaintiff’s daughter-in-law who came back to Penney’s for the package the plaintiff had gone to pick up. She testified the spot where the plaintiff fell was very slippery because it was highly polished.

We find the plaintiff failed to prove adequately the existence of a premise hazard. The fact plaintiff’s shoes were still wet after her fall does not prove her fall resulted from the presence of water inside the store. Rather, it is more likely, in view of the extensive testimony that the floor was dry where plaintiff fell, that plaintiff’s shoes were wet from water she stepped in outside the store. The fact that plaintiff wiped her feet before entering the store does not lessen this probability, especially since there is no duty to provide mats which remove all moisture from one’s wet shoes.

In a similar case, Miller v. Montgomery Ward and Company, Inc., 317 So.2d 278 (La.App. 1st Cir.1975), the plaintiff stepped off a carpet onto a tile floor and slipped and fell. None of the witnesses or store personnel had observed a foreign substance on the floor immediately before or after the accident. In holding the plaintiff had failed to carry her burden of proof, the court found this was “simply an unexplained and unfortunate accident through no fault of the defendant storekeeper or its employees.”

Likewise, in Boswell v. Louisiana Dept. of Public Welfare, 345 So.2d 200 (La.App. 3d Cir.1977), the plaintiff contended she slipped and fell on a liquid foreign substance on the floor of defendant’s hallway. She admitted she did not see any water or other liquid on the floor, either before or after she fell. However, unlike the present case, there was some testimony that plaintiff’s clothes were wet after her fall. The plaintiff reasoned since she fell near a water fountain and a Coke machine, she must have slipped and fell on some water or Coke which had spilled. However, all the witnesses to the fall testified the floor was not wet. The court held the defendant could not be liable for negligence in failing to discover and remove an alleged hazardous liquid or foreign substance from the floor in the absence of sufficient proof that there was anything on the floor at the time of the fall. See Stillwell v. Winn-Dixie Hill, Inc., 146 So.2d 707 (La.App. 1st Cir.1962).

Nor do we believe sufficient evidence was introduced to prove the tile floor was unreasonably slippery due to its polished condition. The mere fact that a floor has a “high shine” is not sufficient to establish liability on the part of the storekeeper. See Sims v. Gibson’s of Denham Springs, Inc., 205 So.2d 824 (La.App. 1st Cir.1967). The plaintiff must prove the floor is in fact unreasonably slippery, perhaps as a result of an excessive or uneven application of wax or from the application of an improper wax. See Sims, supra; West v. U.S. Fidelity & Guaranty Co., 405 So.2d 877 (La.App. 4th Cir.1981); Miller v. Smith, 391 So.2d 1263 (La.App. 1st Cir.1980), affirmed, 402 So.2d 688 (La.1981); Boynes v. Gulf Janitorial Services, Inc., 175 So.2d 1 (La.App. 4th Cir.1965).

The only direct testimony produced concerning the slipperiness of the floor was that of the plaintiff and her daughter-in-law. Though plaintiff contends the slippery state of the floor prevented her from getting up after the fall, other testimony tended to show plaintiff’s severe pain and requests from Mr. Booth to remain still until the ambulance arrived are what thwarted her attempts to get off the floor. Likewise, the testimony of plaintiff’s daughter-in-law shows she believed the floor was slippery simply because it looked shiny, though she stated she walked on the floor and found it to be “slippery like it had acrylic on it.” However, the accident occurred on Friday and the floor had not been waxed since the previous Monday, according to Mr. Rosson.

The opinion of plaintiff’s expert that the floor was unreasonably slippery was unconvincing. This opinion was based on the expert’s belief that all tile floors are unreasonably dangerous, especially when any type of wax is applied. This expert examined the premises about one and one-half years after the accident and performed a “coefficient of friction” test with shoes similar to those worn by plaintiff at the time of the accident. A coefficient of .8 was obtained by using a dry shoe; a coefficient of .6 was obtained with a wet shoe. Both these figures exceeded the minimum standard of .5 established by Underwriters Laboratory. However, this standard was predicated upon a test performed with leather shoes. The expert contended the floor would have failed the test if leather shoes were used, though no figures were given to substantiate this contention. We therefore find his testimony unconvincing, especially since the test was not performed under the conditions from which the industry standard was developed.

The only thing which the record clearly establishes is the unfortunate fact of plaintiff’s fall. The fact of the fall alone does not establish the floor was so slippery as to make it unreasonably dangerous. We conclude the plaintiff has not adequately proved the existence of a premise hazard; rather, we find the unfortunate accident most likely resulted from adverse weather conditions beyond the control of defendant. In Edwards v. Piggly Wiggly Operators, 401 So.2d 493, 495 (La.App. 2d Cir.1981), the court stated:

“We recognize, of course, that to require a storekeeper to keep a floor completely dry during a rainstorm or to hold him responsible for every slick place due to tracked-in rain water would impose an unreasonable standard of care and would, in effect, make him an insurer of the customer’s safety — which is not required.”

Finally, having concluded the floor has not been shown to be unreasonably dangerous, it cannot be said to be defective for purposes of imposing strict liability under La.Civ.Code art. 2317. See Brown v. Winn-Dixie Louisiana, Inc., 417 So.2d 44 (La.App. 1st Cir.1982).

For the above reasons, the judgment of the trial court is reversed. Costs are assessed against plaintiff.

REVERSED.


author: COLE, Judge. PER CURIAM.

text:
    Warren BROWN v. SOUTHERN FARM BUREAU INSURANCE COMPANY and Aetna Casualty and Surety Company.
    No. 82 CA 0307.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.

      J. Mark Graham, Houma, for defendant, intervenor and appellant.
    Michael P. Pellegrin, Houma, for plaintiff and appellee.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

This suit arises from an automobile accident which occurred on January 18, 1980. On this date, plaintiff was driving an eighteen wheel tractor trailer rig which belonged to his employer, Weatherford-Lamb USA, Inc. He was engaged in the course and scope of his employment as a truck driver. As plaintiff proceeded towards Houma on Highway 90 in Terrebonne Parish, Louisiana he was hit by a pickup truck driven by Dennis E. Wilhite, who was killed in the accident. Plaintiff also suffered personal injuries in the accident which form the subject matter of the present suit. It is undisputed that the wreck resulted from the negligence of decedent Wilhite.

On April 11, 1980, plaintiff filed suit against Southern Farm Bureau Insurance Company (later properly designated as Louisiana Farm Bureau Mutual Insurance Company) as insurer of Dennis E. Wilhite. Since the Farm Bureau policy limit for liability was only $5,000, suit was also filed against Aetna Life & Casualty Insurance Company (later properly designated as Aet-na Casualty and Surety Company) as uninsured motorist carrier covering the vehicle which plaintiff was driving at the time of the accident. Aetna filed a third-party demand against the succession of Wilhite and his insurer, Louisiana Farm Bureau. Aet-na, in its capacity as workers’ compensation insurer of plaintiff’s employer, also filed a petition of intervention seeking recovery of amounts which it had paid and was paying to plaintiff under the Louisiana Workers’ Compensation Act.

Prior to trial, all demands against Louisiana Farm Bureau and its insured, Dennis Wilhite, were compromised and settled and those claims were dismissed. On August 17, 1981, the case went to trial on the remaining claims of plaintiff against Aetna as uninsured motorist carrier; and on the intervention claims of Aetna as workers’ compensation carrier. After trial on the merits, the trial court found the plaintiff to be insured under the uninsured motorist policy and awarded him $817,365.26 for past and future lost wages and benefits and an additional $150,000 for pain and suffering. The trial court also refused Aetna’s claim for reimbursement of its compensation payments and dismissed the intervention.

From this adverse judgment, Aetna has appealed. Aetna’s specification of alleged errors by the trial court follows:

1. The trial court awarded an excessive amount of damages.

2. The trial court erred in awarding interest from the date of judicial demand rather than from the date of judgment.

3. The trial court erred in failing to limit any recovery, including interest, to the limits of the uninsured motorist coverage available under the policy.

4. The trial court erred in refusing Aet-na’s claim for reimbursement of workers’ compensation benefits from the proceeds of the uninsured motorist insurance available.

5. The trial court erred in failing to reduce any amount payable under the uninsured motorist coverage by sums paid or payable under workers’ compensation and social security disability benefits.

QUANTUM

Plaintiff sustained a serious injury to his low back. This aggravated a pre-ex-isting condition of spinal stenosis which was completely asymptomatic prior to the accident. Plaintiff initially was brought to see Dr. Thomas Haydel, whose preliminary diagnosis was that plaintiff had suffered a cervical and lumbar strain. Over the next few weeks, however, plaintiff’s condition deteriorated to the point where he was referred to Dr. Richard Landry, an orthopedic surgeon. Dr. Landry first saw plaintiff on February 20, 1980, at which time he observed narrowed disc spaces between several of plaintiff’s vertebrae. Dr. Landry treated this condition for about four weeks with physical therapy. On March 19, 1980, with plaintiff’s condition still deteriorating, a myelogram was performed which revealed a bulging disc at the L3-4 location. At this point, plaintiff was suffering from acute headaches, limited motion in the neck, acute low back pain, and numbness and inability to move the lower extremities.

On April 24, 1980, Dr. Landry performed a bilateral laminectomy between L3 and L4. A large facet joint as well as the lamina between L3 and L4 on the left and right side were removed. Additionally, a second incision was made in plaintiff’s left hip area from which bone was removed to perform a fusion of plaintiff’s spine between L3 and L4 to increase the spine’s stability. It became apparent to Dr. Landry during this surgery that the combination of the bulging disc with the spinal stenosis was responsible for pressure on plaintiff’s nerve roots which caused plaintiff’s low back pain and extremity numbness and weakness.

Following the surgery, plaintiff’s physical activities were severely limited. He was instructed to avoid sitting for a period of six to eight weeks, to wear a steel brace at all times except when sleeping, to walk as much as possible, and to avoid therapeutic stress to the spine in order that the fusion could become solid. However, X-rays taken in August 1980 indicated the fusion had failed to solidify. Therefore, plaintiff was forced to undergo a second fusion surgery on January 7, 1981 which was substantially similar to the first, except this time a bone graft was taken from the right hip. This second surgery was successful, though plaintiff’s physical activities remain limited. Plaintiff continues to suffer headaches, stiffness in the neck, occasional swelling of the low back, occasional numbness of the lower extremities, acute depression, insomnia due to pain, poor appetite, and nervousness.

Plaintiff was forty years old at the time of the accident. He is married and is the father of five minor children who are dependent upon him for support, along with three of his wife’s minor children who also live with them. Plaintiff has only a sixth grade education and a background of manual labor. An industrial psychologist who examined and tested plaintiff found he has below average intelligence and poor manual dexterity. Dr. Landry testified plaintiff’s physical impairment precludes him from performing any work which would require lifting over thirty-five pounds, or any persistent bending, stooping, squatting, or prolonged standing or sitting. From this testimony, the trial court concluded plaintiff is permanently disabled and will never be able to find any work except for minimum wage jobs.

At trial, plaintiff called Dr. Seymour Goodman to testify as an expert economic witness regarding plaintiff’s lost wages and benefits. The total lost wages and benefits, past and future, were calculated to be $817,365.26. The portion of this figure for the future lost wages ($693,442.50) was reached by projecting a total annual increase in salary of 8.57 percent, which was compounded annually over plaintiff’s 21.8 year work life expectancy at the time of the trial and then discounted to present value at a rate of seven and one-quarter percent. This projected increase was based upon annual inflation rate of 5.36 percent and a 3.31 percent annual productivity increase.

The essence of appellant’s argument on appeal is that the productivity increase used in the projections was unsupported by the facts of the case. Appellant argues plaintiff was already working an average of almost eighty hours per week, and for the trial court to presume that his productivity could increase was unrealistic.

We believe the productivity rate was not unjustified by the facts. The 3.31 percent rate of annual increase in productivity was based on the actual experience of male truck drivers in Louisiana over the past twenty years. This rate reflects not only the measure of the individual’s capacity but also the demand conditions for the industry as a whole. Dr. Goodman also applied a negative .25 percent per annum factor to plaintiff’s projected productivity over the remainder of his work life expectancy to compensate for the fact that in actual experience a person in the truck driving industry experiences a decline in productivity after reaching a certain age. Finally, as a matter of fact, plaintiff’s wages had increased by 17.6 percent per annum in the three years before the accident. Even assuming that ten percent of this was due to the high rate of inflation at that time, plaintiff’s income had increased by 7.6 percent due to productivity alone. We therefore reject appellant’s argument that the productivity rate should not have been included. See Hardy v. State, Through Dept. of Highways, 412 So.2d 208 (La.App. 3d Cir.1982) writ denied, 414 So.2d 305, 381 (La.1982) (2.8 percent per year production increase factor used in calculating future lost wages of car salesman).

While triers of fact are not bound to follow the opinion testimony of expert witnesses, Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir.1979), writ refused, 380 So.2d 102 (La.1980), mathematical projections of future earnings may be used as one of the guides employed by courts in computing an award for loss of future income. Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir.1974). Although the trial court awarded the amount projected by Dr. Goodman, it did so because it felt his projections were conservative and any lesser award would amount to an abuse of its discretion. The trial court noted the 5.36 percent annual rate of inflation projected was a very conservative figure, for over the last ten years inflation has averaged nine percent per annum. Dr. Goodman’s projections also included an assumption that plaintiff would be able to return to some kind of work by September 1, 1981 at the rate of $4.00 per hour and thereafter receive increases equal to the increase in the minimum wage. Again, the trial court found such assumptions to be conservative, since Dr. Landry testified plaintiff could not return to work before early in 1982. Also, Dr. Craig Feldbaum, the industrial psychologist who examined plaintiff, testified plaintiff would only be able to find minimum wage jobs at best.

The trial court rejected testimony of Mr. Michael Theriot of Weatherford-Lamb to the effect they would provide plaintiff with a $5.00 per hour cleanup job when he was able to return to work. Though Mr. Theri-ot claimed the job had been in existence for over one and one-half years, the job was not listed in a document labeled “Wage and Promotion Policy for Hourly Employees of Weatherford International, Inc.,” which supposedly listed all hourly employee jobs available at Weatherford-Lamb. The trial court found even if such a job existed, plaintiff’s physical condition would prevent him from performing such work. We find no manifest error in these factual determinations.

We note finally that Aetna produced no expert economists to give testimony of their own for the court to weigh against that of Dr. Goodman. Thus, Dr. Goodman’s opinion evidence was the only evidence on the issue of lost wages which the trial court had before it, and the trial court felt the defendants were unable to discredit his testimony. We therefore conclude the record substantiates the trial court did not abuse its “much discretion” in awarding $817,-365.26 in lost wages and benefits. La.Civ. Code art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Nor can we say this same discretion was abused in the award of $150,000.00 for plaintiff’s pain, suffering, and disability. This amount is based upon the testimony outlined above concerning plaintiff’s physical complaints. The trial court considered the cases of McDonald v. South Central Bell Tel. Co., 377 So.2d 1044 (La.App. 4th Cir.1979); Daigle v. Long, 377 So.2d 1384 (La.App. 4th Cir.1979) writ denied, 381 So.2d 510 (La.1980); Johnson v. Wicks, 356 So.2d 469 (La.App. 1st Cir.1977); and Huval v. Sinitiere, 376 So.2d 548 (La.App. 3d Cir.1979); all of which awarded amounts for pain and suffering ranging from $100,000 to $165,000, and found plaintiff’s injuries were worse than those discussed in these cases. We therefore affirm the trial court’s determination of quantum.

INTEREST

Aetna also contends the trial court erred in awarding interest from the date of judicial demand rather than from the date of the judgment. Although the trial court’s award was consistent with a prior decision of this Court in Hebert v. Ordoyne, 388 So.2d 407 (La.App. 1st Cir.1980), which awarded interest from the date of judicial demand, Aetna relies upon a Third Circuit case to the contrary, Guidroz v. Tauzin, 413 So.2d 682 (La.App. 3d Cir.1982). In Gui-droz, our brethren on the Third Circuit held that since the plaintiff’s action against his uninsured motorist carrier was one in contract, according to Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968), then interest is recoverable only from the time the debt becomes due under the terms of La.Civ.Code art. 1938. The Guidroz court concluded the uninsured motorist carrier’s debt becomes due at the time of the judgment, since its obligation to perform under the terms of the policy did not arise until there was a legal determination of the liability of the uninsured motorist and the extent of plaintiff’s damages.

We respectfully disagree with the decision in Guidroz and adhere to our prior opinion in Hebert v. Ordoyne, supra. The damages sought by plaintiff in his petition and awarded by the trial court were delic-tual damages, having arisen from an automobile accident. La.R.S. 13:4203 provides as follows:

“Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto,’ which may be rendered by any of the courts.”

The language of this statute is mandatory; damages resulting from negligent conduct automatically include interest thereon from the date of judicial demand as a matter of public policy. La.R.S. 13:4203 does not speak in terms of causes of action, rather, it speaks in terms of judgments sounding in delictual damages. The scheme of uninsured motorist protection is designed to provide the innocent insured with a source of recovery for delictual damages sustained as a result of the negligence of an uninsured or underinsured motorist. Although the cause of action against an uninsured motorist carrier arises in contract, as held in Booth, supra, it is not inconsistent to require the carrier to pay delictual damages including interest thereon as mandated by La.R.S. 13:4203, inasmuch as there is nothing contra bonos mores involved in contracting to pay delictual damages. If there was, such coverage as involved here would be prohibited by law, not encouraged by it.

Furthermore, to award interest from the date of the judgment would violate the minimum statutory limit requirement of the uninsured motorist statute. La.R.S. 22:1406(D)(l)(a) prohibits the issuance of an automobile liability insurance policy in Louisiana unless it affords uninsured motorist coverage up to the amount of the policy limits for bodily injury liability, though the insured may reject the coverage or select lower limits in writing. The purpose of this statute is to place the innocent victim of an uninsured or underinsured motorist in the same position as if the tortfeasor had liability coverage. See Williams v. Buckelew, 246 So.2d 58 (La.App. 2d Cir.1970). When a liability insurer is held liable, it must pay on behalf of its insured not only the principal policy limits, but also legal interest thereon from the date of judicial demand until paid. See O’Donnell v. Fidelity General Ins. Co., 344 So.2d 91 (La.App. 2d Cir.1977), and cases cited therein. Any policy provision which attempts to limit the liability insurer’s liability for legal interest from the date of judicial demand contravenes the public policy of La.R.S. 13:4203 and cannot be enforced. See O’Donnell, supra. Since uninsured motorist coverage is supposed to provide the same coverage as liability insurance, then these same rules should likewise apply to uninsured motorist insurance. Otherwise, the plaintiff who recovers under uninsured motorist insurance will receive less compensation than another plaintiff who recovers under liability insurance. We therefore affirm the award of legal interest from the date of judicial demand.

Appellant also contends the trial court erred in refusing to limit the total recovery, including interest, to the limits of the uninsured motorist coverage available under the policy. This contention is without merit. Since we have already concluded La.R.S. 13:4203 to be applicable to judgments for uninsured motorist insurance proceeds, the UM insurer is liable not only for judgments up to the principal policy limits, but also for legal interest on the amount of the judgment from the date of judicial demand until paid. La.R.S. 13:4203 is a mandatory provision and prevails over any policy provision to the contrary. See O’Donnell, supra, and cases cited therein.

REIMBURSEMENT OF WORKERS’ COMPENSATION BENEFITS

Aetna next contends the trial court erred in dismissing its intervention in the capacity of workers’ compensation insurer to recover the compensation benefits from the proceeds of the uninsured motorist insurance. This issue was decided recently by the Louisiana Supreme Court in Johnson v. Fireman’s Fund Insurance Company, 413 So.2d 906 (La.1982), in an opinion which reversed in part the court of appeal decision at 411 So.2d 538. In Johnson, the Supreme Court rejected prior appellate court decisions in Lute v. City of Lake Charles, 394 So.2d 736 (La.App. 3d Cir.1981); Bannon v. Edrington, 392 So.2d 186 (La.App. 4th Cir. 1980); and Gentry v. Pugh, 362 So.2d 1154 (La.App. 2d Cir.1978), writ refused, 363 So.2d 922 (La.1978).

The Gentry case held that the uninsured motorist carrier is not the type of “third person” from whom the workers’ compensation insurer can recover its compensation benefits under La.R.S. 23:1101 when an employee is injured by a third party tortfeasor. The “third person” referred to in La.R.S. 23:1101 is defined as “some person” in whom a “legal liability to pay damages” is created by a compensable injury or sickness. The Bannon case reasoned such a “legal liability” is one imposed by law rather than by a contract. Since the uninsured motorist carrier’s obligation to pay arises by contract, the Bannon court concluded its liability is not a “legal liability to pay damages” within the meaning of La.R.S. 23:1101.

In reviewing these decisions, the Supreme Court in Johnson stated “these rationales represent an unduly restrictive interpretation of the phrases ‘third person’ and ‘legally liable to pay damages’ as they are contemplated in La.R.S. 23:1101.” That statute, as seen by the Supreme Court,

“. .. was not designed to restrict the employer’s right of reimbursement to recover from the tortfeasor. Rather, the thrust of the provision is to prevent double-recovery and to eventually allocate the loss to the tortfeasor.... We therefore see no reason to limit applicability of the employer’s right of action strictly to the liability of a tortfeasor, as distinguished from the liability of an uninsured motorist insurer or a liability carrier whose obligation to pay damages under the statute is contingent upon a determination of the legal liability of a tort-feasor.”

The Supreme Court thus concluded:

“An uninsured motorist carrier is a third person legally liable to pay damages to an injured employee protected by its coverage because it is obliged by law and the issuance of its policy to repair the same damage which the tortfeasor has caused and to guarantee recovery as if the tort-feasor had been insured. Therefore, a worker compensation insurer can recover amounts paid to an injured employee out of uninsured motorist coverage. La.R.S. 23:1101. However, this is subject to one limitation. Worker compensation insurers cannot recover out of uninsured motorist coverage paid for by an employee because the worker compensation statute prohibits direct or indirect imposition of the cost of compensation upon an employee. La.R.S. 23:1163.”

Applying this new rule to the facts of the instant case, we must conclude the trial court erred in dismissing Aetna’s intervention in its capacity as workers’ compensation insurer, since the uninsured motorist coverage at issue here was purchased by plaintiff’s employer, not by the plaintiff-employee himself.

Because we conclude Aetna is entitled to reimbursement of its compensation benefits paid from the proceeds of the uninsured motorist insurance, we need not address Aetna’s final assignment of error, which concerned the trial court’s refusal to allow, according to policy provisions, a credit to the amount of uninsured motorist insurance for workers’ compensation and social security disability benefits paid. Aside from the fact that such a credit has been uniformly denied by the other circuit appellate courts, an award of such a credit here would result in the employee’s recovery under his uninsured motorist coverage being reduced by twice the amount of compensation he has been paid. Even Aetna has recognized the inequity in such a situation and has thus sought either reimbursement of compensation paid or a credit to the amount of uninsured motorist proceeds due, but not both.

For the above reasons, the judgment of the trial court dismissing Aetna’s intervention as plaintiff’s workers’ compensation insurer is reversed. The trial court’s judgment is affirmed in all other respects. Plaintiff is therefore entitled to $967,365.26 in uninsured motorist insurance proceeds, plus interest from the date of judicial demand, less any compensation benefits already paid by Aetna in its capacity as workers’ compensation insurer. Appellant is to pay all costs.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff-appellee has applied for a rehearing seeking modification of our opinion rendered following original hearing on appeal. As correctly pointed out by plaintiff-appellee our opinion should have recognized his right to the principal sum of $979,-447.59 in uninsured motorist insurance proceeds, the heretofore stated amount of $967,365.26 being in error due to our failure to include medical expenses of $12,082.33. Unlike the awards for lost wages and for pain and suffering, the medical expenses were not at issue on appeal and we inadvertently failed to include them in our computation. Accordingly, we modify our original opinion to provide that plaintiff-appel-lee is entitled to $979,447.59 in uninsured motorist insurance proceeds, plus interest from the date of judicial demand, less any compensation benefits already paid by Aet-na in its capacity as workers’ compensation insurer. As modified, our original opinion is affirmed.

REHEARING DENIED.

      . See also, Horstmann v. Drake, 420 So.2d 473 (La.App. 4th Cir.1982); and, Powell v. Allstate Insurance Company, 233 So.2d 38 (La.App. 2d Cir.1970).

      . Consistent with our reasoning and result is the rationale of Hoetty v. Government Employees Ins. Co., 418 So.2d 575 (La.1982). Since the tort-feasor and uninsured motorist carrier are bound in solido, it would be inconsistent for their interest obligations to vary.

      . Gagnard v. Thibodeaux, 336 So.2d 1069 (La.App. 4th Cir.1976); Landry v. State Farm Mutual Automobile Insurance Company, 320 So.2d 254 (La.App. 3d Cir.1975); Williams v. Bucke-lew, 246 So.2d 58 (La.App. 2d Cir.1970), overruling Allen v. United States Fidelity and Guaranty Co., 188 So.2d 741 (La.App. 2d Cir.1966).


author: LOTTINGER, Judge.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. Johnny JOHNSON.
    No. 82 CA 0309.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied April 15, 1983.

      J. Glenn Dupree, Baton Rouge, for plaintiff-appellee General Motors Acceptance Corp.
    John Samaha, Baton Rouge, for defendant-appellant Johnny Johnson.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This appeal arises from a suit for a deficiency judgment. Defendant, Johnny Johnson, in connection with the purchase of a used demonstrator-model 1978 Opel automobile, executed a promissory note payable to the order of “MYSELF (OURSELVES)” on February 13, 1978. The note was endorsed in blank, and was in the sum of $6,633.12. It was paraphed “Ne Varietur” by a notary to identify it with an act of sale and chattel mortgage simultaneously executed by Johnson for the purchase of the vehicle. The vehicle was mortgaged unto any future holder of the note.

Payments on the note ceased in November of 1980. General Motors Acceptance Corporation (GMAC), the holder of the note, enforced an acceleration clause and instituted executory process. The 1978 Opel was seized and sold at sheriffs sale, with appraisement, and the amount obtained thereby was credited to Johnson; however, a balance of $2,778.48 was left owing on the note. This suit for a deficiency judgment was then instituted by GMAC.

After Johnson answered with a general denial, GMAC moved for a summary judgment in its favor. On December 3, 1981, Johnson filed a countering affidavit attesting to redhibitory defects in the vehicle which had appeared during February of 1979. The trial court granted summary judgment in favor of GMAC. Johnson moved for a new trial, arguing that La. Code Civ.P. art. 424, a part of which was apparently relied on by the trial court, operated to deny him equal protection of the law, violating the Constitutions of the United States and of Louisiana. After the motion for a new trial was denied, Johnson moved for and was granted a devolutive appeal.

Defendant-appellant Johnny Johnson argues generally on appeal that summary judgment was improvidently granted, and re-asserts his contention that La.Code Civ.P. art. 424, found applicable by the trial court, operated to deny him equal protection of the law in violation of the U.S. Constitution and the Louisiana Constitution (1974).

WAIVER

We initially note the following language which appears in the sale with chattel mortgage:

“WAIVER OF IMPLIED WARRANTIES
(Used Vehicle Sales Only)
Vendor (mortgagee) and Purchaser (mortgagor) understand and agree that this sale is made without any warranty whatsoever, express or implied, except as to title and except as to those warranties specifically listed below, which Purchaser accepts in lieu of any other warranty by either Vendor or manufacturer. Purchaser hereby expressly waives all implied warranties (including, without limitation, any warranty of merchantability, any warranty of fitness for a particular purpose, and any warranty against hidden or latent defects) arising under the provisions of Louisiana law, including particularly Revised Civil Code Articles 2520 through 2548. Purchaser hereby further expressly waives any right Purchaser may have to demand a rescission or resolution of this sale or reduction of the purchase price for breach of any such implied warranties.

“Warranties made (if any):”

The signature of Johnny Johnson appears beneath this waiver provision. The waiver, if enforced, would provide a basis for affirming the summary judgment in favor of GMAC without the necessity of our discussing the constitutional issue. See Benson & Gold Chevrolet, Inc. v. Louisiana Motor Vehicle Commission, 403 So.2d 13 (La.1981); State in the Interest of Toler, 262 La. 557, 263 So.2d 888 (La.1972); Collins v. Rozands, 385 So.2d 332 (La.App. 1st Cir.1980).

It is well established that for a waiver of warranty to be effective, three requirements must be met:

(1) the waiver must be written in clear and unambiguous terms;
(2) the waiver must be contained in the sale and chattel mortgage document; and
(3) the waiver must either be brought to the attention of the buyer or explained to him.

See: Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973); Webb v. Polk Chevrolet, Inc., 387 So.2d 1240 (La.App. 1st Cir.1980); writ ref. 390 So.2d 1344 (La.1980).

The third requirement is not met in the instant case. The act of sale with mortgage does not feature a written, signed acknowledgement that the debtor has read and understood his waiver or warranty, nor do the affidavits on record indicate that the waiver provision was demonstrated or explained to Johnson. Thus, the signed waiver in the act of sale does not sustain summary judgment in favor of GMAC.

La.Code Civ.P. Art. 424

We must also determine whether La.Code Civ.P. art. 424 even applies to the parties involved herein. Redhibition is a remedy whereby a buyer rescinds the sale, and ordinarily it lies against the seller or manufacturer of the thing sold. GMAC, on the other hand, neither sold the vehicle to Johnson nor manufactured it. Nonetheless, the following language appeared in the sale and chattel mortgage:

“NOTICE
“Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.”

This “notice” language is mandated by 16 C.F.R. § 433, and is designed to protect the buyer from being precluded from asserting a defense against the seller by the latter’s transferring the note to a holder in due course. Thus, redhibition is available against GMAC.

The note itself meets all the requirements of negotiability. Additionally, the defense of redhibitory defects was asserted more than one year after the sale and more than one year after discovery of the alleged defects; thus, the redhibitory claim would have prescribed either under La.Civ.Code art. 2534 or under La.Civ.Code art. 2546. Therefore, La.Code Civ.P. art. 424 is applicable in the case sub judice and would, if upheld, provide the basis for summary judgment in favor of GMAC.

CONSTITUTIONAL STANDARDS

Generally, the constitutional guarantee of equal protection of the law requires that state laws affect alike all persons and interests similarly situated. Bur-master v. Gravity Drainage District No. 2 of Parish of St. Charles, 366 So.2d 1381 (La.1978); Succession of Robins, 349 So.2d 276 (La.1977). In determining whether a statute denies equal protection, the court must first decide whether the legislation operates to the disadvantage of some “suspect” class or impinges on some fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. Bazley v. Totorich, 397 So.2d 475 (La.1981). Suspect classifications are those which involve race, alienage, national origin, religion, or some other discrete and insular minority group. Bazley, supra at 483; Burmaster, supra at 1386. Clearly, La.Code Civ.P. art. 424 does not discriminate against a suspect classification, since those affected are not distinguished by race or any other unalterable trait.

Johnson argues, however, that strict scrutiny should apply in the case sub judice because La.Code Civ.P. art. 424 operates to impinge on a fundamental right which is recognized by the maxim, “things which are temporary for the purposes of attack are permanent for the purposes of defense.” See official comment (b), La. Code Civ.P. art. 424. While we recognize the fact that the quoted maxim has long been a part of the Louisiana jurisprudence, we are of the opinion that the maxim expresses no fundamental right protected by the Constitution. Fundamental rights for equal protection purposes include such rights as freedom of speech and association, exercise of the voting franchise, freedom of interstate travel, the right to privacy, and other fundamental liberties, Everett v. Goldman, 359 So.2d 1256 (La.1978). Certainly, the ability to use a prescribed claim in redhibition as a defense to a suit on a negotiable instrument has not the primacy of those rights recognized as fundamental for equal protection purposes.

Inasmuch as no suspect classifications or fundamental rights are involved herein, strict judicial scrutiny is not required. The standard which applies in all other instances is whether the differentiation created by La.Code Civ.P. art. 424 has a rational basis which is reasonably related to a legitimate state purpose, and thus does not constitute invidious, capricious, or arbitrary discrimination. Bazley, supra; ACORN v. City of New Orleans, 377 So.2d 1206 (La.1979), appeal dismissed in Geeck v. City of New Orleans, 446 U.S. 961,100 S.Ct. 2934, 64 L.Ed.2d 819, rehearing den. 448 U.S. 912, 101 S.Ct. 28, 65 L.Ed.2d 1173.

RATIONAL BASIS

Johnson asserts that the sole purpose of La.Code Civ.P. art. 424 is to remove an obstacle in the collection process of automobile finance companies, who purchase negotiable instruments from car dealers. We note, however, that the pertinent part of the statute runs in favor of all payees or holders of negotiable instruments against makers who assert a prescribed redhibitory claim as a defense; its effect is in no way limited to automobile credit sales.

In the consumer credit context, however, under 16 C.F.R. § 433, all “consumer credit contracts” must contain the “notice” language cited supra to the effect that all holders take the note subject to any defenses which can be asserted against the seller. The express purpose of the Federal Trade Commission regulation is to prevent the seller in a consumer credit transaction from separating the buyer’s duty to pay from the seller’s duty to perform as promised, by selling the buyer’s promissory note to a financing institution, as against whom, because of holder status, defenses would otherwise not be available. The Louisiana Supreme Court in Jefferson Bank and Trust Company v. Stamatiou, 384 So.2d 388 (La. 1980) held that the inclusion of this provision, as mandated by federal law, precluded a banking institution from asserting its status as a holder in due course against a maker who claimed redhibitory defects of his vehicle in defense of a suit on a promissory note.

When viewed in connection with the FTC regulation, the purpose of La.Code Civ.P. art. 424 becomes obvious: to increase the merchantability of negotiable instruments by limiting the defenses assertable against the seller. Under the FTC regulations, all holders take subject to defenses assertable against the seller; La.Code Civ.P. art. 424 protects subsequent holders by limiting the defense of redhibition. The defense of redhibition must be asserted pri- or to the passage of prescriptive period therefor. Thus, the federal regulation cannot avail the appellant since, under state law, redhibition (once prescribed) is not an available defense against the seller.

By limiting the defense of redhibition which a maker may assert against a payee or subsequent holder, the risks involved in purchasing negotiable instruments are reduced. Reduction in risk results in a lower discount rate, which increases merchantability, and we are of the opinion that increasing the merchantability of negotiable instruments is a legitimate state interest.

Additionally, under redhibition, the buyer must prove that the defects alleged existed at the time of the sale, La.Civ.Code art. 2530. With the passage of long periods of time, this burden becomes increasingly difficult; thus, by not allowing the defense of redhibitory defects once the prescriptive period has passed, judicial efficiency is promoted by the elimination of a defense which would be practically impossible to sustain in court. Finally, the legislation promotes fundamental fairness in the judicial system: it reflects the judgment of the legislature that had the object sold truly been riddled with defects, the buyer would have actively sought a recission of the sale, rather than sitting on his claim in redhibition until same prescribed and then refusing to make payment on the negotiable instrument.

For all of the above reasons, we find La.Code Civ.P. art. 424 differentiates along a rational basis which is reasonably related to the furtherance of legitimate state interests. We therefore hold that the statute does not violate the equal protection clause of the Fourteenth Amendment to the U.S. Constitution nor of Art. 1, § 3 of the Louisiana Constitution (1974).

DECREE

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed. All costs, both in this court and in the trial court are assessed to defendant-appellant, Johnny Johnson.

AFFIRMED.

      . La.Code Civ.P. art. 424 reads:
      “A person who has a right to enforce an obligation also has a right to use his cause of action as a defense.
      “Except as otherwise provided herein, a prescribed obligation arising under Louisiana law may be used as a defense if it is incidental to, or connected with, the obligation sought to be enforced by the plaintiff. A prescribed cause of action arising under The Federal Consumer Credit Protection Act may not be used as a defense even if it is incidental to, or connected with, the obligation sought to be enforced by the plaintiff.

        "However, in connection with the enforcement of a negotiable instrument the defense of redhibition may not be used if it has otherwise prescribed.” (emphasis supplied)

      . La.Civ.Code art. 2534 reads:
      “The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
      “This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.
      “Nor where the seller, not being domiciliated in the State, shall have absented himself before the expiration of the year following the sale; in which case the prescription remains suspended during his absence.”

      . La.Civ.Code arts. 2545 and 2546 read:
      Art. 2545.
      “The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.” Art. 2546.
      “In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.
      “This discovery is not to be presumed; it must be proved by the seller.”

      . This effect of La.Code Civ.P. art. 424 could conceivably be argued to violate the Supremacy Clause of the U.S. Constitution (Art. VI, clause 2), since it inhibits the effectiveness of 16 C.F.R. § 433 by reducing the defenses available against holders and sellers alike. Nonetheless, the “Statement of Basis and Purpose” issued by the Federal Trade Commission in connection with 16 C.F.R. # 433 indicates that the courts of the several jurisdictions are the final arbiters of equities between sellers and purchasers. See 40 Federal Register 53424, Nov. 18, 1975. Thus, the enactment of 16 C.F.R. § 433 does not prevent Louisiana from limiting defenses available against sellers and holders alike, since determining rights and liabilities of sellers and purchasers is a matter of state law.