text:
    Dr. Rodney HIGGINS v. STATE of Louisiana, DEPARTMENT OF HEALTH & HUMAN RESOURCES d/b/a Charity Hospital of La and Rockwood Insurance Company.
    No. 83 CA 0624.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 1984.
    Writs Denied Nov. 16,1984.

      Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ON APPLICATION FOR REHEARING

ALFORD, Judge.

Plaintiff-appellee, Dr. Rodney Higgins, while an intern at Charity Hospital in New Orleans, contracted in the course and scope of his employment, viral encephalitis, rendering him permanently and totally disabled under worker’s compensation. The subject of this appeal is a rule filed by plaintiff wherein he was awarded $37,-464.00 for the non-professional nursing care rendered him by his mother, Mildred Higgins, from January 11, 1980, through April 18, 1982, at the rate of $3.50 per hour.

Defendants-appellants, the State of Louisiana, Department of Health and Human Resources d/b/a Charity Hospital of Louisiana, and Rockwood Insurance Company, appealed the judgment on the rule, arguing that (1) the trial court erred in failing to rule that the claim for nursing services rendered by Mrs. Higgins had been compromised by a previous stipulation and stipulated judgment (both filed August 10, 1982) and that, accordingly, their exception of res judicata should have been sustained, and (2) alternatively, Dr. Higgins failed to adequately prove his claim.

In brief, plaintiff argued that the trial court erred in (1) failing to award the full amount sought for the nursing services rendered by Dr. Higgin’s mother and (2) failing to grant penalties and attorney’s fees sought in connection with the rule.

On original hearing, Higgins v. State, Dept. of H. & H. Resources, 451 So.2d 142 (La.App. 1st Cir.1984), this court did not consider Dr. Higgin’s arguments. We stated in a footnote that Dr. Higgins neither appealed nor answered the appeal to request a modification in the judgment, and that, accordingly, we could not consider these items, citing LSA C.C.P. art. 2133. However, as correctly pointed out by plaintiff, Dr. Higgins had in fact filed an answer to the appeal in district court, rather than with this court, and the answer was not noted in our record. Therefore, for the sake of fairness, we granted a rehearing on all issues noted above.

After again carefully reviewing the record, we affirm our decision in the original hearing relative to the issues of compromise and res judicata.

Defendants argue that the claim for the nursing services of Mrs. Higgins was res judicata because of a stipulation between Dr. Higgins and defendants filed August 10, 1982. The August 10, 1982, stipulation was entered into as a compromise for certain medical expenses incurred by Dr. Higgins, including nursing services amounting to $8,435.00. Defendants maintain that the August 10, 1982, stipulation was a compromise of nursing services sufficient to bar, as res judicata, Dr. Higgins’ subsequent rule filed November 12, 1982, seeking $58,-719.50 for nursing services rendered by Mrs. Higgins.

As we noted in our original opinion, although the charges for Mrs. Higgins’ nursing services arose prior to the August 10, 1982, stipulation, the record indicates that the stipulation was not intended to, nor did it, include the nursing services performed by Mrs. Higgins.,

On the hearing of the rule for Mrs. Higgins’ nursing services, the trial court dealt with the issues of res judicata and compromise. Statements were made by counsel for Dr. Higgins and the trial court judge that the instant rule was the first time a claim had been made for Mrs. Higgins’ nursing services. Counsel for defendants made no effort of record to negate these assertions.

A compromise agreement extends only to those matters which the parties expressly intend to settle. LSA C.C. art. 3073. Considering the record as a whole, we cannot say that the trial court judge was clearly wrong in finding that the charges for Mrs. Higgins’ nursing services were not included in the August 10, 1982, stipulation, and thus, had not been compromised. Accordingly, the decision of the court below is affirmed in favor of Dr. Higgins as to the defendants’ pleas of compromise and res judicata.

Defendants also argue that plaintiff did not sufficiently prove his claim. At the same time, plaintiff contends that the trial court judge erred in awarding Dr. Higgins $37,464.00 instead of the full amount demanded. As the resolution of these issues is interrelated, we will deal with them together.

The bill for nursing services rendered by Mrs. Higgins was based on records kept in her calendar contemporaneously with her work. The nursing services award encompassed services rendered from January 11, 1980, through April 18, 1982. Although we are well aware that Mrs. Higgins did not reconstruct from her records the hours actually spent with Dr. Higgins until June of 1982, we note that, based on Mrs. Higgins’ uncontradicted testimony, the trial court judge felt, and we agree, that Mrs. Higgins did the very best she could. The judge below listened to counsel for both sides question Mrs. Higgins. He also questioned her himself. It is obvious from reading the testimony on the rule that the trial court judge was carefully assessing the time periods testified to and evaluating Mrs. Higgins’ testimony as to credibility and accuracy. It is well settled that the reviewing court must give great weight to the reasonable evaluations of credibility and reasonable inferences of fact made by the trial court. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Keohring Company, 283 So.2d 716 (La.1973). Under the facts of this ease, we cannot say that the court below was clearly wrong in finding that Dr. Higgins had sufficiently proved his claim for nursing services rendered by Mrs. Higgins in the amount of $37,464.00.

Dr. Higgins has argued that he is entitled to penalties and attorney’s fees under LSA R.S. 23:1201.2 because defendants arbitrarily and capriciously refused to pay his claim for nursing services rendered by Mrs. Higgins and refused to guarantee payment of future treatment at Mount Sinai Hospital in New York.

LSA R.S. 23:1201.2 is applicable only to an employer not covered by insurance however, LSA. R.S. 22:658 contains a similar provision for penalties and attorney’s fees in the event of an insurer’s failure to pay a claim when such failure is found to be arbitrary, capricious, or without probable cause. Concerning LSA R.S. 22:658, this court in Shatoska, v. Intern. Grain Transfer, Inc., 430 So.2d 1255, 1262 (La. App. 1st Cir.1983) said:

This statute is penal in nature and must be strictly construed. It should be utilized only in those instances in which the facts negate probable cause for nonpayment. The burden is on the claimant to prove entitlement to penalties. Hammond v. Fidelity & Casualty Company of New York [419 So.2d 829, 831 (La. 1982)], supra; Moore v. Millers Mutual Fire Insurance Company of Texas, 406 So.2d 708 (La.App. 2nd Cir.1981), writ denied 410 So.2d 1132 (La.1982); Batiste v. Pointe Coupee Constructors, Inc., 401 So.2d 1263 (La.App. 1st Cir.1981), writ denied 409 So.2d 615 (La.1981). Where there is a serious defense presented in good faith, the assessment of the statutory penalties is not appropriate. Furtado v. Alton Ochsner Medical Foundation, 413 So.2d 528 (La.App. 4th Cir.1982), writ denied 420 So.2d 171 (La. 1982).

Regarding Mrs. Higgins’ nursing services, defendants’ defenses of compromise and res judicata involved questions of fact upon which reasonable persons could disagree. As did the trial court judge, we feel that these were serious defenses in good faith and that defendants did not act arbitrarily, capriciously or without probable cause. Penalties were properly denied.

Dr. Higgins also argued that defendants’ failure to provide a written guarantee that defendants would pay all future medical and incidental expenses that Dr. Higgins might incur at Mount Sinai Hospital in New York entitles Dr. Higgins to statutory penalties. Dr. David Dunn recommended by deposition that Dr. Higgins be treated at Mount Sinai. By letter dated November 11, 1982, counsel for Dr. Higgins made formal request to defendants for such written guarantee of payment. Dr. Higgins ruled defendants into court on the Mount Sinai matter, along with the claim for Mrs. Higgins’ nursing services. At the hearing of the rule on January 28, 1983, defendants stipulated that they would pay the costs of examination, evaluation, and incidental expenses that Dr. Higgins would incur at Mount Sinai Hospital.

LSA R.S. 22:658 requires that the insurer “pay the amount of any claim due" within sixty days after receipt of “satisfactory proofs of loss” and demand therefor. As noted above, this statute is penal in nature and must be strictly construed. Under the strict wording of the statute, an insurer is required to “pay”— not guarantee future payment of — any claim due the insured. Accordingly, penalties and attorney’s fees were properly denied.

For the foregoing reasons, the judgment of the trial court is affirmed in all respects.

Appellants are to pay all costs of the original appeal.

Appellants and appellee are to share any costs of rehearing.

AFFIRMED.

      . As LSA R.S. 23:1201.2 read prior to the 1983 amendments.

      . LSA R.S. 22:658 reads as follows:
      Payment of claims, policies other than life and health and accident; penalties
      All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney's fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    In re PROTEST OF the DOW CHEMICAL COMPANY.
    No. 83 CW 0881.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 12, 1984.

      G. William Jarman, Baton Rouge, and Patrick W. Pendley, Plaquemine, for plaintiff-appellee Dow Chemical Co.
    Michael R. Fontham and Sara Vance, New Orleans, for defendant-appellant James H. Dupont, Assessor Iberville Parish.
    Robert H. Abbott, III, Baton Rouge, for defendant-appellee La. Tax Com’n.
    Victor A. Sachse, III, Gordon A. Pugh, Van Mayhall, Jr. & David Cassidy, Baton Rouge, for exceptors-appellee Cosmar Inc., et al.
    Before COLE, WATKINS, LANIER, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Dow Chemical Company protested to the parish Board of Review (LSA-R.S. 47:1931 and 47:1992) the ad valorem tax assessment of its properties situated in Iberville Parish, Louisiana. Upon the Board of Review maintaining the assessment, Dow appealed to the State Tax Commission under the provision of LSA-R.S. 47:1991. It then filed a request for the discovery of certain documents in the custody of the Assessor of Iberville Parish. The Assessor objected, and Dow filed a motion to compel inspection by Dow. The matter was set for hearing before the State Tax Commission. Dow sought the production of the following documents:

(1) All fair market value appraisals, and the source documents for such appraisals, of each parcel of improved and unimproved industrial land, as well as all comparable sales used in connection with these appraisals, for Dow and the other taxpayers in Iber-ville Parish.
(2) Fair market value appraisals, and the source documents of such appraisals, of all buildings located on improved industrial parcels in Iberville Parish as well as all documents furnished by each taxpayer to the assessor to aid in these appraisals for Dow and the other taxpayers in Iberville Parish.
(3) Fair market value appraisals, and the source documents of such appraisals, separately for each type of land improvement, for each improved industrial parcel on (sic) Iberville Parish as well as all documents furnished by each taxpayer to the assessor to aid in these appraisals for Dow and the other taxpayers in Iberville Parish.

After oral argument by counsel for both Dow and the Assessor, the Tax Commission refused to order discovery of the above-mentioned documents in a well-reasoned ruling holding the documents to be irrelevant to a determination of Dow’s assessment. Dow applied for review by the Nineteenth Judicial District Court which, after oral argument by counsel for Dow and the Assessor, reversed the holding of the Tax Commission on discovery and ordered that Dow be permitted to inspect the mentioned documents.

The documents sought to be discovered include basically the ad valorem tax returns of all industrial and industrial land taxpayers in Iberville Parish, including the supporting documents, the Assessor’s work sheets and the other internal documents based upon these returns.

After a judgment of the District Court a group of some twelve industrial taxpayers in Iberville Parish filed an exception of non-joinder of indispensable parties, alleging that the documents sought contained confidential information and contending that all of the industrial taxpayers in the parish whose returns are sought to be examined are indispensable parties to the proceeding. No ruling upon the exception is to be found in the record.

The Assessor then applied to this Court for a supervisory writ of review, which we granted, in view of the novel issue presented in this case. After having reviewed the matter, we hold that the documents sought are not presently subject to discovery, and remand to the Tax Commission for consideration of the correctness of Dow’s assessment.

The twelve industrial taxpayers of Iber-ville Parish filed a brief before us as amici curiae contending again that the documents sought would contain confidential information which was not subject to discovery.

The ad valorem tax returns filed by taxpayers contained the following caption: “CONFIDENTIAL; (R.S. 47:2327) FORMS FILED BY A TAXPAYER SHALL BE USED BY THE ASSESSOR, THE GOVERNING AUTHORITY, AND THE LOUISIANA TAX COMMISSION SOLELY FOR THE PURPOSE OF ADMINISTERING THIS STATUTE.” Also relevant to the question of confidentiality is the language of LSA-R.S. 47:2327, referred to above, which reads as follows:

Forms filed by a taxpayer pursuant to this Act shall be confidential and shall be used by the assessor, the governing authority, and the Louisiana Tax Commission solely for the purpose of administering the provisions of this Act. Such forms shall not be subject to the provisions relative to public records as set forth in Title 44 of the Louisiana Revised Statutes of 1950, provided however, that such forms shall be admissible in evidence and subject to discovery in judicial or administrative proceedings according to general law relating to the production and discovery of evidence: (emphasis added)

The industrial taxpayers contend, as does the Assessor, that discovery by Dow of the documents sought would constitute a breach of faith in view of the language contained in the tax return, and would permit release of confidential information to a business or industrial competitor. They further contend that discovery of tax returns is permitted under LSA-R.S. 47:2327 only in proceedings to which the taxpayer is a party. Dow contends that under the general rules of evidence, these matters are not barred from discovery and that, as the provisions of LSA-R.S. 47:2327 apply to administrative as well as judicial proceedings, it is not contemplated that discovery be limited to proceedings to which the taxpayers are parties.

We must first consider, before arriving at the merits, the question of whether or not the Tax Commission had appellate jurisdiction of an individual assessment and, if that be so, whether or not the Nineteenth Judicial District Court had jurisdiction to review the question of discovery, which all parties agree is an interlocutory matter.

As to the first jurisdictional contention of the Assessor, that the Tax Commission is without jurisdiction to review the correctness of the assessment of an individual taxpayer within a parish, such an appeal by an individual taxpayer from the Board of Review is clearly permitted by LSA-R.S. 47:1992(D).

Dow sought to raise two basic issues before the Tax Commission, as its brief to this Court in paraphrase states: (1) the correctness of the assessment of Dow’s property, i.e., whether the Assessor properly arrived at the fair market value of Dow’s property; and (2) whether the Assessor has uniformly assessed Dow’s property with that of other taxpayers similarly situated.

Counsel for Dow appears to concede that the documents sought to be discovered are relevant only to the issue of lack of uniformity and states that refusal of the Tax Commission to permit discovery amounts to a de facto dismissal of all parts of this case involving the issue of uniformity, thus constituting irreparable injury.

LSA-R.S. 49:964(A), which is found in the Administrative Procedure Act (49:950 et seq.) reads as follows:

A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury-

Thus, under the second sentence of Section 964(A) a procedural ruling of an administrative agency, such as the Tax Commission, is subject to review by the district court if delay to final ruling would inflict irreparable injury. If we assume for purposes of argument that denial to Dow of the information sought would jeopardize its attempt to substantiate its allegations of lack of uniformity in assessment, then we must conclude that a possibility of irreparable injury to Dow indeed existed. Hence, the district court had jurisdiction of the matter.

As we have stated, Dow contends that its property within Iberville Parish was not assessed at fair market value and further, that its property in that Parish was denied uniformity of assessment with similar industrial properties.

The tax returns of other industrial taxpayers would be of no possible relevancy to the Commission’s determination of whether or not Dow is assessed at fair market value. The sole issue that might require Dow’s examination of the information sought is denial of uniformity. Denial of uniformity in the form of underassessment of other taxpayers is indeed a denial of equal protection and due process and may validly be urged in a complaint of a taxpayer as has long been recognized by the courts of this land, both state and federal. But to establish an unconstitutional denial of unformity in the form of underas-sessment of other taxpayers, a pattern of underassessment must be alleged and proven. See, e.g. Southern Ry. Co. v. Watts, 260 U.S. 519, 43 S.Ct. 192, 67 L.Ed. 375 (1923); Louisville and Nashville Railroad Co. v. Public Service Commission, 631 F.2d 426 (6th Cir.1980); Southland Mall v. Garner, 455 F.2d 887 (6th Cir.1972); Annot., 9 ALR 4th 428 (1981), Tax Assessment, Standing to Challenge.

Dow has not specifically asserted an argument of denial of equal protection or due process in brief before this Court. We have little doubt that, if substantiated, a complaint of unconstitutional denial of uniformity would necessitate the inspection of some of the documents sought so that Dow could prove its case. However, Dow in its formal pleading's, which consisted of a complaint to the Tax Commission made on a form supplied by the Commission, and a motion to compel inspection of documents also filed before the Commission, failed to indicate any factual basis in support of its broad assertion of lack of uniformity. Dow became somewhat more specific in oral argument before the Commission, but even here its argument failed to focus upon specific instances of alleged denials of uniformity to a sufficient degree to satisfy the court that Dow is not simply embarking upon a “fishing expedition”. To permit each taxpayer to challenge assessments on the basis of vague allegations of denial of statutory or constitutional rights and then seek to obtain tax records to determine the correctness vel non of such allegations would place the assessor and the tax collecting authority at the mercy of any discontented taxpayer who might seek to raise the spectre of alleged denial of constitutional rights. The disclosure of confidential information, as the information sought clearly is, is to be permitted only upon clear representation by the would-be discoverer of the nature of the information that it seeks, and why it believes that the information it seeks is essential to the proceeding in which discovery is sought. Broad hints of impropriety, such as denial of uniformity of assessment, are insufficient to remove the protection that courts should give in the realm of discovery to matters declared confidential by law. A pattern of lack of uniformity must be asserted to allege a denial of constitutional rights. Further, the denial of uniformity must have been intentional, although intent may be inferred from a systematic lack of uniformity. See Southern Ry. Co. v. Watts, supra; Louisville and Nashville Railroad Co. v. Public Service Commission, supra; Southland Mall v. Garner, supra. To obtain the production of the documents sought, an intentional denial of uniformity must be shown sufficient to overcome the general protection given confidential documents. As the Fourth Circuit said in Bianchi v. Pattison Pontiac Co., 258 So.2d 388, 390 (La.App. 4th Cir.1972), in holding income tax returns of an automobile dealer not to be discoverable: “Whenever it is urged that the unrestricted use of the discovery process may result in undue hardship, loss or damage — monetary or otherwise — the trial judge shall resolve all reasonable doubts in favor of the party against whom it is invoked and liberally apply the protective devices authorized by LSA-C.C.P. art. 1452.” As the broader opinion makes clear, confidential matters are discoverable only if the would-be discoverer overcomes the doubts raised by the opposing party as to the real need for discovery. In the present case, the need for discovery is not sufficiently demonstrated to overcome the opposing considerations of substantial inconvenience to the assessor and harm to other taxpayers that disclosure of confidential information would in all likelihood produce. To allow unlimited discovery solely on factually unsupported general allegations would render the confidentiality of the records meaningless. We reserve the right of Dow to apply again to the Tax Commission should it more fully allege a factual basis underlying its claim of lack of uniformity. For the moment, we deny discovery.

As we have stated, twelve industrial taxpayers in Iberville Parish filed an exception of non-joinder of indispensable parties in district court. We know of no provision of law permitting a person not a party to a proceeding to file an exception, although we are free to notice an exception of non-joinder of an indispensable party on our own motion. LSA-C.C.P. art. 927. Cf. National Medical Enterprises v. Guissinger, 432 So.2d 367 (La.App. 1st Cir. 1983). However, we do not think that the twelve industrial taxpayers have sufficient interest in the ultimate relief sought by Dow, a lowering of Dow’s assessment, to be indispensable parties to the present litigation. We reserve their right to intervene on the issue of discovery and to obtain a protective order limiting Dow’s discovery within reasonable limits should Dow succeed subsequently in obtaining a discovery order.

The judgment of the district court is reversed, all rights being reserved to Dow Chemical Company to obtain discovery of some or all of the information herein sought should Dow Chemical Company sufficiently demonstrate a basis of such discovery. The case is remanded to the Tax Commission for further proceedings consistent with this opinion. All costs shall be paid by Dow Chemical Company.

REVERSED AND REMANDED.


author: REDMANN, Chief Judge.

text:
    Robert SANDS, M.D. v. STATE of Louisiana Through LOUISIANA STATE MEDICAL CENTER, SCHOOL OF DENTISTRY.
    No. CA1538.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.
    Trevor G. Bryan, Jefferson, Bryan & Gray, New Orleans, for plaintiff.

      John H. Gniady, Ivor A. Trapolin, New Orleans, for defendant.
    Before REDMANN, C.J., and KLEES and CIACCIO, JJ.
   REDMANN, Chief Judge.

Plaintiffs complex medical claim is that defendant’s improper dental x-raying caused him a calamitous bodily deterioration whose results include cataracts and the threat of general paralysis. He now appeals from a judgment for defendant on motion at the close of plaintiffs evidence. He argues error only in the denial of his trial-time motion for a continuance after he fired his then lawyer five days before trial.

We deem it beyond question that a continuance is not due on a naked showing that a client has discharged his or her lawyer. To discharge one’s lawyer, even without any cause, would otherwise enable one to delay going to trial forever. It would be fundamentally unjust to allow a plaintiff never to have to supply proof of his charge, or to allow a defendant never to have to respond to a charge. The constitutional guarantee that courts shall be open to provide remedies for wrongs, La. Const, art. 1 § 22, assures expressly that a defendant cannot, as by continuances at will, close the courts to a plaintiff; and it equally assures implicitly that a plaintiff cannot, by continuances at will, close the courts to a defendant by making a charge, never bringing it to trial, and forever avoiding its dismissal as unproven.

Because discharge of one’s lawyer is therefore not by itself grounds for postponing another party’s access to the courts for a decision in a pending action, the client bears the burden of showing other circumstances that would justify a continuance.

“A continuance may be granted in any case if there is good ground therefor.” La.C.C.P. 1601. “Good” ground is something less than “peremptory” ground, for which C.C.P. 1602 declares a continuance “shall” be granted. Inability to obtain evidence that is material despite “due diligence” is a peremptory ground under C.C.P. 1602. Inability to obtain material evidence despite diligence that is not quite “due diligence” may therefore be a “good” though not a peremptory ground.

We postulate that a client who shows that he has himself behaved with reasonable diligence, but who has learned near trial time that his lawyer cannot produce material evidence because he has not prepared for trial, ought to be able to fire the lawyer and get a continuance to employ another, unless the unfairness to the other parties of granting the continuance outweighs the unfairness to the moving client of denying the continuance. A reasonably diligent client’s having fired his lawyer for unpreparedness could be “good” ground for a continuance in the absence of counterbalancing circumstances.

But that does not appear to be our situation, notwithstanding that the client’s firing of the lawyer may suggest a superficial illusion that dilatoriness by the lawyer has put the client in a disadvantageous position. Our situation appears to be that plaintiff, himself a medical doctor, did not entrust the medical evidence aspects of his case to his lawyer’s care but, because of his own expertise, has himself sought but has been unable to produce the medical evidence necessary to prove his case. Thus, if plaintiff was indeed damaged by-x-rays at defendant’s dental school in 1977, plaintiff appears unfortunately unable to prove it, notwithstanding that over two years passed from the time he filed his action in 1980 until the time the continuance in question was denied.

Plaintiff’s appellate counsel cites Marpco, Inc. v. South States Pipe & S., 377 So.2d 525 (La.App. 3 Cir.1979). Counsel concedes that that case is factually distinguishable, but argues that we should apply its language asserting a “duty of the trial court, in some circumstances, to look beyond every jot and tittle of the law in order that every citizen availing himself of the courts will be assured of being heard.” Id. at 527. But that language for “some circumstances” cannot intend to apply to the case where the citizen is unwilling or unable to produce evidence to support his cause. La. Const, art. 1 § 22’s guarantee of open courts, for defendants as well as for plaintiffs, is not a mere jot or tittle but the whole boldface of a bedrock principle. Our trial court did not deny our plaintiff the opportunity to be heard. Our plaintiff, unfortunately, was unable to present anything to be heard.

We simply cannot say that the trial judge abused his discretion by refusing to continue this matter under the circumstances.

Affirmed.

      . Suit was filed in November 1980. Answer was filed in June 1981. Trial was set for February 18, 1982 but continued to December 8 without record explanation. Trial was continued to April 5, 1983, by signed consent of counsel for both parties dated December 3 (although the record also contains plaintiff's motion of that day, asking a continuance on the basis of his deteriorating medical condition). Plaintiff moved a continuance on the same ground March 29 but it was on that day denied for lack of independent medical evidence to support it. On March 31 plaintiff discharged his counsel and by letter so informed the trial judge. That letter was received April 4. On April 5 plaintiff in person orally moved for a continuance on the ground that he needed to employ another lawyer. The trial judge refused and plaintiff went to trial pro se, with his former lawyer in the courtroom, instructed by the trial judge to assist plaintiff. After plaintiff attempted to present his case, with no independent expert evidence, defendant successfully moved a directed verdict, having brought only one witness to the courtroom although its counsel had other experts ready.


author: CIACCIO, Judge.

text:
    Artis M. SOLOMON v. Willie SKINNER and New Orleans Public Service.
    No. CA-1421.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.
    Walter F. Gemeinhardt, John P. Keegan, P.C., New Orleans, for plaintiff-appellee.
    Charlton B. Ogden, II, New Orleans, for defendant-appellant.
    Before KLEES, LOBRANO and CIAC-CIO, JJ.
   CIACCIO, Judge.

An employee of defendant, New Orleans Public Service, Inc., accidentally dropped a two pound hammer from the top of a power-line pole where he was working. The falling hammer struck plaintiff on the head. NOPSI appeals from the jury verdict, which was made the judgment of the trial court, awarding plaintiff $20,000.00 as compensation for the injuries received as a result of the accident.

La.C.C.Art. 1934(3) affords the trier of fact “much discretion” in the assessment of damages in cases such as this one. The only issue raised on appeal concerns whether the amount of the award in this case represents an abuse of that discretion. NOPSI contends that the award is excessive and, therefore, an abuse of discretion. Plaintiff argues that the evidence in the record clearly supports the amount of the award as appropriate.

Por the reasons that follow, we affirm the judgment of the district court.

After being struck by the hammer, plaintiff was treated on the scene by paramedics and transported to the Charity Hospital emergency room. At Charity Hospital she was treated for head trauma, and released without being admitted. Plaintiff did not lose consciousness at any time.

Six days following the accident plaintiff consulted Dr. Robert W. Little, a specialist in family practice. Plaintiff complained to the doctor of suffering from headaches that hurt all over her head, occurred six to eight times a day, lasted thirty minutes to an hour, and were very severe for the first three or four days following the accident. At the time of her visit with the doctor the headaches had become more moderate in intensity. Plaintiff also complained of dark spots appearing like ants in front of her eyes.

Plaintiff suffered from significant anxiety and depression which Dr. Little related to some personal difficulties in plaintiff’s life. Dr. Little further testified, however, that “it was quite apparent at the time of the accident the depression and anxiety became greatly aggravated, significantly worse, and I think the accident itself greatly worsened her symptoms of depression and anxiety.”

Plaintiffs anxiety surrounding her injury was compounded by some personal history. Testimony was offered that a relative of plaintiffs had suffered a head injury and had died on the operating table (presumably in connection with treatment for the head injury).

Dr. Kenneth E. Vogel, a neurological surgeon, testified that the persistent, seemingly permanent, headaches which plaintiff complained of up until trial, more than two years after the accident, were “very unusual.” He indicated, however, that in a small percentage of cases, “[mjaybe two or three percent”, “[y]ou can have permanent headache syndrome, but almost always with a more severe concussion.” Plaintiff also related to Dr. Vogel that occassionally her legs would give out on her, a situation corroborated by lay testimony from a friend of the plaintiff.

Dr. W. Randolph Page, a specialist in neurological surgery, testified that in his opinion plaintiff suffered “a very minimal injury ... many many thousands of people have injuries of that magnitude and some of them don’t even go the hospital for them.” In connection with her continuing complaints of headaches the doctor said, “she had headache[s] after the injury but a lot of other things can cause headaches.” Dr. Little and Dr. Vogel also testified that causes other than being hit on the head could have contributed to plaintiff’s headaches. Dr. Little and Dr. Vogel both opined, however, that since plaintiff had not suffered from headaches prior to the hammer hitting her head, the headaches can be related to the accident.

NOPSI argues that the evidence indicates and that the opinions of the doctors confirm that plaintiff should have recovered completely within a short time following the accident, and had in fact reached maximum recovery within a year following the accident. Maximum recovery is not necessarily complete recovery. Further, plaintiff is entitled to recover for the damages she suffered; she is not limited to recovering for what most people in a similar situation might have suffered.

The jury apparently concluded that plaintiffs continuing difficulties with headaches and her legs giving out resulted from the hammer hitting her head. We have reviewed the entire record and cannot say that this conclusion is clearly wrong. See-Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Considering that these difficulties persisted until trial, more than two years after the accident, with no significant sign of terminating, we cannot say that the jury abused its much discretion by awarding plaintiff $20,000.00. La.C.C.Art. 1934(3). Reck v. Stevens, 373 So.2d 498 (La.1979). Accordingly, the judgment of the trial court is affirmed. All costs are to be borne by appellant, New Orleans Public Service, Inc.

AFFIRMED.


author: CIACCIO, Judge. BARRY, Judge,

text:
    Mrs. Bernice M. DOHM v. Michael H. O’KEEFE, Ben Daly Bridgeman, Edmond G. Miranne Apartment Housing Corporation, Darryl D. Berger, David R. Burrus, Joseph E. Berrigan, Jr. and The Bridgeman-O’Keefe-Miranne, Metairie Towers Partnership.
    No. CA-1628.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.

      Chaffe, McCall, Phillips, Toler & Sarpy, E. Harold Saer, James A. Babst, Marc G. Shachat, New Orleans, for appellant.
    John R.R. Martzell, Charles E. McHale, Jr., New Orleans, for appellees.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   CIACCIO, Judge.

Plaintiff has sued a multiplicity of defendants, asserting many causes of actions. The focus of this appeal is upon her right of action to sue certain defendants, viz., Apartment Housing Corporation, Old Metairie Ltd., Darryl Berger, and David Bur-rus. The trial court maintained an exception of no right of action raised by the above named defendants, and dismissed these defendants from the suit. Plaintiff appeals. We reverse.

The Bridgeman-O’Keefe-Miranne Partnership (BOM) is a Louisiana partnership in commendam. Appellant is a limited partner to the extent of 14.5%.

This action arises out of the sale of an apartment building which was the principal asset of BOM. The apartment building was sold to Apartment Housing Corporation, a Louisiana corporation, whose principal stockholders are Darryl Berger and David Burrus. On the same day the apartment building was purchased, it was transferred by Apartment Housing Corporation to Old Metairie Limited, a Louisiana partnership in commendam, in which Messrs. Berger and Burrus are partners.

Plaintiff has alleged that, in connection with the sale of the apartment building, Apartment Housing Corporation, Old Me-tairie, Ltd., Darryl Berger and David Bur-rus, along with the general partners in BOM, participated in a scheme to defraud the Partnership and the limited partners. Appellees pleaded the peremptory exception of no right of action arguing that plaintiff, as only one of a number of limited partners, does not have standing to file suit for damages and nullity of a real estate transaction between the Partnership and third parties.

Appellees assert that the causes of action pursued against them by plaintiff belong exclusively to the partnership. Because plaintiff is a limited partner, appel-lees argue, she does not have authority to act for the partnership and, therefore, has no right of action against appellees. We disagree.

Plaintiff alleges that she is a victim of a scheme to defraud. Involved in that scheme, she alleges, are the general partners of BOM and appellees. On the basis of La.C.C. Art. 2324 plaintiff asserts that the defendants, by conspiring to defraud, are solidarily liable. La. C.C. Art. 2324 provides:

Art. 2324. Liability for assisting or encouraging wrongful act He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.
* ⅛ ⅜ ⅜ ⅜ *

Where fraud is alleged as a basis of the complainant’s right to relief, all persons who participated in the alleged fraud and those who are its beneficiaries are proper parties to the suit. Jefferson Business Service, Inc. v. Olivetti Corporation of America, 393 So.2d 880 (La.App. 4th Cir. 1981); Board of Com’rs of Orleans Levee Dist. v. Shushan, 197 La. 598, 2 So.2d 35 (1941).

The exception of no right of action, La. C.C.P. Art. 927(5), raises the question of whether the plaintiff has any interest in enforcing judicially the right asserted, and whether he has the capacity to bring the action. Lambert v. Donald G. Lambert Construction Co., 370 So.2d 1254 (La.1979). The exception of no right of action does not question the plaintiff’s ability to succeed in his allegations, nor does it question the plaintiffs actual damages. Smith v. Livingston Parish Police Jury, 423 So.2d 5 (La.App. 1st Cir.1982). In considering this issue, we are mindful that the articles of our code of civil procedure are to be construed liberally and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves. La. C.C.P. Art. 5051. In this regard, we are reminded that fraud vitiates all things, and the law furnishes a remedy against fraud, when exposed, whatever guise it may assume. Todt v. Todt, 237 La. 168, 110 So.2d 566 (1959); Board of Com ’rs of Orleans Levee Dist. v. Shushan, supra.

In this case plaintiff clearly has an interest in seeking to enforce her claim that she has been defrauded. Plaintiffs status as a limited partner does not strip her of the capacity to sue to protect her interests. Both sides have cited the Comment to La. C.C. Art. 2843:

Comment
This article continues the basic principle that a partner in commendam may not exercise the same rights and privileges available to a general partner. His role is that of a passive contributor whose powers are generally restricted to the protection of his interest.

We recognize plaintiffs right to file suit to protect her partnership interest. We find that plaintiffs right of action extends to appellees who are alleged to be participants in and beneficiaries of a scheme to defraud.

Appellees argue that this result flies in the face of the codal structure of limited partnerships and will create confusion and uncertainty. We think not. By adopting the present structure for partnerships in commendam our legislature did not intend to create a procedural barrier against limited partners who claim to be the victims of wrongdoing. Surely the legislature did not intend to sanction fraud.

We have found that plaintiff has an interest in the subject matter of the suit and possesses the legal capacity to sue to protect her interest. We hold that the exception of no right of action was improperly maintained, and therefore, reverse.

Accordingly, the judgment appealed is reversed, and the matter is remanded for further proceedings consistent with this opinion. All costs of these proceedings in this court are to be borne by appellees.

REVERSED AND REMANDED.’ '

BARRY, J., assigns additional reasons.

BARRY, Judge,

assigns additional reasons.

This matter involves two distinct questions. Can a limited partner allege a fraudulent sale of partnership property to a third party and sue to nullify the sale? Does a limited partner have a right to sue for damages from the alleged fraudulent third party purchaser?

The concept of limited liability for a limited partner in return for non-participation in partnership affairs is a reasonable quid pro quo. However, this does not stop a limited partner from participating or interfering in the partnership’s business. To do so simply means the limited partner waives his liability immunity and is treated as a general partner.

There is no statutory prohibition against any type of partner seeking legal redress if a general partner(s) allegedly conspires with a third party to defraud the partnership. Such a restriction (gag) on a limited partner would effectively condone such conduct.

This limited partner’s lawsuit certainly can’t be considered “dealing” with the third parties, as appellee suggests. Nor is C.C. art. 2843 applicable since the limited partner’s lawsuit to protect her investment is not an effort “to conduct any business with third parties on behalf of the partnership.” Nor is this an effort at piecemeal dissolution of the partnership if the sale is nullified. Further, Jeffries v. Moore, 219 La. 692, 53 So.2d 898 (La.1951), relied on by appellee, involved a suit (not on fraud) between partners (not a third party) and is inapplicable.

It can hardly be said, as appellee claims, that this limited partner is suing “for the benefit of the partnership.” That’s impossible since the general partners are participants in the alleged fraudulent transfer and could lose almost $3 million.

Appellees would have this limited partner wait for the general partners to protect her interests — an impossible happening considering the allegations.

Under these circumstances appellant had no choice and certainly the right to sue those who allegedly defrauded her partnership interest. The comment to C.C. art. 2843 succinctly says the limited partner’s role is “generally restricted to the protection of his interest.” I agree.

      . A partner in commendam does not have the authority of a general partner to bind the partnership, to participate in the management or administration of the partnership, or to conduct any business with third parties on behalf of the partnership.


author: SCHOTT, Judge.

text:
    PLAQUEMINES PARISH COMMISSION COUNCIL v. DELTA DEVELOPMENT COMPANY, INC., et al.
    No. C 2487.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 1984.
    See also 451 So.2d 134.

      John M. McCollam, Marcel Garsaud, Jr., Andrew McCollam, III, Gordon, Arata, McCollam, Stuart & Duplantis, New Orleans, for relators Joyce Perez Gelpi, Chester P. Gelpi, Thomas Perez Eustis, Flora Ann Eustis, Geoffrey Edward Eustis, Nancy Kerr Eustis and Margaret Miller Eustis.
    Daniel Lund, Harold B. Carter, Jr., Frank P. Accardo, Montgomery, Barnett, Brown & Read, New Orleans, for relator Delta Development Co., Inc.
    Gene W. Lafitte, William R. Pitts, Anne E. Tate, Liskow & Lewis, New Orleans, for relators Betty Perez Carrere and Richard J. Carrere.
    Peter J. Butler, Louis V. Lauricella, Butler & Heebe, New Orleans, for relators Leander H. Perez, Jr., and Aphra Perez.
    J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for relators Chalin 0. Perez and Lynn Perkins Perez.
    Ernest R. Eldred, Jerry F. Davis, Ernest R. Eldred, P.C., Baton Rouge, John R. Schupp, Broadhurst, Brook, Mangham, Hardy & Reed, New Orleans, for respondent Plaquemines Parish Com’n Council.
    Jack M. Weiss and Mary Louise Strong, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for intervenors The Times-Picayune Pub. Co. and James O’Byrne.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   SCHOTT, Judge.

We granted certiorari in order to consider the validity of a ruling of the trial court which denied relators’ motion for a protective order prohibiting the dissemination of certain discovery materials. The threshold issue is whether freedom of expression as guaranteed by the First Amendment to the United States Constitution confers any right on respondent and an intervening newspaper publisher (hereinafter sometimes collectively referred to as “respondents”) to disseminate to the public at this stage of these proceedings the information being produced by relator, Delta Development Company, Inc., in compliance with discovery requirements. Next, assuming that respondents have such a First Amendment right, the issue becomes whether relators’ right to privacy under the federal and state constitutions outweighs freedom of expression on the part of respondents.

This is a suit by respondent, Plaquemines Parish Commission Council, against the children and grandchildren of Leander H. Perez, Sr. along with Delta Development Company, Inc., to recoup from them lands and mineral interests allegedly taken from Plaquemines Parish by Perez, Sr. and his sons, relators, Leander H. Perez, Jr. and Chalin 0. Perez, while they were in positions of high office and authority in the Parish beginning in 1936. The suit also seeks an accounting from the Perez family members for the money they have received over these years in rents and royalties from these allegedly public lands.

From the outset of the litigation respondent has utilized extensive discovery procedures. In January, relators sought a protective order with respect to discovery, but this was denied for the most part. However, the court did limit attendance at depositions to the parties and their attorneys. Despite this limitation information obtained at the depositions was publicized by the news media prompting relators to seek relief from this court in April. We referred the parties back to the trial court for a reconsideration of relators’ motion for a protective order in view of the media’s conduct.

In May the trial court conducted this hearing and also considered a motion by Delta to prohibit any publication of information obtained through discovery. The court reinstated its earlier order limiting attendance at depositions but also fashioned a procedure whereby relators could, in response to discovery, designate specified material as confidential, to be available only to the parties and their attorneys, but not to be disseminated to the public. Under this procedure the court would decide, after a hearing, whether to approve the designation of confidentiality or not.

In June Delta was served with extensive interrogatories and requests for production of documents as to which it designated six answers as confidential. The court disapproved the designation of confidentiality as to records pertaining to Leander H. Perez, Jr., Chalin 0. Perez and their “immediate families” as defined by LSA-R.S. 42:1102(13). These individuals are the wives of Leander and Chalin Perez and their two sisters, Joyce Perez Gelpi and Betty Perez Carrere.

The materials involved are the records of receipts and disbursements by Delta of rents and royalties from the lands respondent claims it owns and unrecorded working interests and donations as to the six individuals. Collectively, the information would disclose exactly how much money each of the individuals has made from these lands over the years.

C.C.P. Art. 1426 provides that a party or other person from whom discovery is sought may obtain a protective order to protect the person from annoyance, embarrassment, oppression, or undue burden. Such a protective order may be fashioned to preserve the confidentiality of the information disclosed. The granting or not of a protective order and the extent of protection extended are within the discretion of the trial court; and the court of appeal will not ordinarily modify or reverse the trial court in such matters absent an abuse of the trial court’s discretion. However, in this case the trial judge made it clear in oral reasons from the bench that he regarded the question as a close one. He indicated that he had studied Seattle Times Company v. Rhinehart, — U.S.-, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), a case relied upon by relators, and commented on some features of that case which distinguish it from the instant case. On the other hand, he referred to R.S. 38:2213 which requires disclosure by public officials who purchase public lands and the Code of Governmental Ethics, R.S. 42:1101 et seq. and while recognizing that these laws were not yet enacted at the time the lands were allegedly taken the judge seemed to feel that these laws nevertheless applied. However, he made it clear that he had some difficulty reaching a conclusion and expressed the hope that his decision would be reviewed by this court. He stated, “I think that we could use assistance from higher authority, from the appellate courts.” Consistent with this attitude he stayed his own order and preserved confidentiality of the records until this court would dispose of relators’ writ application. Under these circumstances we have no hesitancy about reviewing the trial court’s decision on its merits.

Although there are some distinguishing features of the Seattle Times case, supra, as noted by respondents in their briefs, the Supreme Court unequivocally held that a litigant has no First Amendment right of access to information made available in respose to pre-trial discovery procedures. By the same logic, respondents have no right to this information under the Louisiana Constitution of 1974 whose guaranty of freedom of speech and press in Article 1, Section 7 is no broader that the First Amendment to the United States Constitution. On this basis alone we would conclude that all relators are entitled to the protective order they sought. However, we do not end our discussion here since the possibility exists that a reviewing court may disagree with this threshold conclusion, and hold that respondents do indeed have some constitutional right to publicize the information at this stage.

Citizens of the United States enjoy a right to privacy including an interest in avoiding disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). A Louisiana citizen is guaranteed security “in his ... papers ... against ... invasions of privacy.” Article 1, Section 5, Constitution of 1974. If the instant case were between private citizens it seems clear that these privacy concerns would protect parties from publication of their financial records at this stage of the proceedings. The problem here is that respondent is the Plaquemines Parish governing body and has alleged that these records relate to public lands. Because the case is charged with public interest respondents contend that their constitutional right to freedom of expression overrides any right to privacy relators may have. It is difficult to understand this argument considering the present stage of the litigation. All we have so far are unproved allegations of wrongdoing. Relators filed exceptions to the petition which have not yet been heard. It is possible that the case will never go to trial. If that is so relators’ right to privacy would be lost because of a suit against them having no legal basis.

It seems clear from respondent’s brief that it would justify relators’ loss of privacy at this stage of the proceedings because they are collecting money which belongs to the public and which came from public lands. But this begs the question. For our purposes here we cannot presume that respondent’s allegations are true. The in-tervenor takes the same position. Conceding arguendo that relators’ right to privacy is inalienable, intervenor denies “that there is any substantial basis in federal or state law for the proposition that the Constitution protects the amount of money being paid by oil companies to present and former public officials based on leases of public lands.” [Emphasis supplied] Again this presumes the allegations to be true at a stage when exceptions are still pending and the case may never go to trial.

The position taken by respondent, Council, is difficult to understand. It haá taken to court a claim which involves serious and complex issues and a seemingly enormous amount of money. If the suit is successful the Parish of Plaquemines will reap tremendous benefits. Yet it has sidetracked this effort in favor of trying to publicize this financial information. Publication will not enhance the legal position of the council and the sooner the case goes to trial the closer to publication will the financial records be.

As to the intervenor, we can appreciate and we respect its concern for freedom of expression and its mission of keeping the public informed. However, freedom of expression is not absolute and must sometimes yield to competing interests. By recognizing and preserving relators’ privacy rights at this time and stage of the proceedings we are simply postponing the public’s learning exactly how much money these six individuals have received over these years. We are not persuaded that this temporary limitation on intervenor’s freedom of the press or the public’s right to know is a substantial blow to interve-nor’s rights, and we conclude that it is justified under the circumstances.

Finally, in deference to our esteemed brother on the trial court, we turn to his stated reasons for denying relators’ request for a protective order. He seemed to find some connection between this case and R.S. 38:2213 and the Code of Governmental Ethics, even while noting that these statutes were not enacted until 1977, long after the alleged wrongdoing took place. While deciding that the grandchildren of Perez, Sr. and others were entitled to the protective order, he denied relators’ request— that of Leander, Jr. and Chalin because they were public officials when some of the wrongdoing took place and that of the wives and sisters of the Perez brothers because these ladies are included in the definition of “immediate family” found at R.S. 42:1102(13).

As to the Perez brothers if they used their positions to take public lands and mineral interests, respondent would seemingly have a cause of action for the return of these things under the general law regulating the conduct of a fiduciary. But the statutory basis cannot be a special law or code enacted long after the conduct took place. In any event, our prior conclusions as to relators’ right to privacy at this time applies equally to the six, including these two who were formerly high ranking public officials.

Even if this conclusion were found to be wrong there is still no reason why the wives and sisters should not be extended a protective order. Assuming that the two sisters have been benefiting from their father’s and brothers’ wrongdoings for many years prior to 1977 and the wives from the time of their marriages, there is no suggestion that they had any part in or knowledge of such wrongdoing. Yet a definition from a 1977 act of the legislature was used as a basis to place these ladies in the same class as the Perez brothers. The definition of “immediate family” in the Code of Governmental Ethics is there because the Code itself imposes certain restrictions on the conduct of a public official’s immediate family such as R.S. 42:1112 B’s prohibition against transactions where a member of the official’s immediate family has a substantial economic interest. It cannot serve as a basis for publicizing the financial records of these ladies because of their relationship to the Perez brothers.

Accordingly, the order of the trial court dated June 11, 1984 is amended so that the protective order by relators is granted. Documents produced by Delta Development Co., Inc. in response to plaintiff’s interrogatories 5, 20, 21, and 24 and in response to plaintiff’s requests for Production Nos. 2(c) and 2(d) shall be and remain confidential materials in accordance with the prior protective order of the court dated May 9, 1984. All costs in connection with this writ application are assessed against respondent, Plaquemines Parish Commission Council.

AMENDED.


author: YELVERTON, Judge.

text:
    Levene REED, Plaintiff-Appellee, v. SEACOAST PRODUCTS, INC., Defendant-Appellant.
    No. 83-889.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    On Rehearing Nov. 26, 1984.

      Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, for defendant-appellant.
    Raleigh Newman, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Seacoast Products, Inc., and its insurer appeal jury findings of unseaworthiness, Jones Act negligence, liability for maintenance and cure, and an allegedly excessive damage award, while the plaintiff, Levene Reed, answers the appeal asking for increases in the damage award and attorney’s fees, and an award for punitive damages. We increase attorney’s fees from $700 to $7500, award punitive damages of $175,000, and otherwise affirm, finding no merit to any of the other assignments of error raised by any party.

The basis for the action was a slip and fall on August 25, 1981, on board the M/V SIKEOYNESS, a menhaden fishing vessel owned by defendant Seacoast Products, Inc., and insured by Northwestern National Insurance Company. Plaintiff, Levene Reed, 48, was the pilot of the vessel, which was underway in the Calcasieu Ship Channel heading for its fishing grounds in the Gulf of Mexico. At about 5:15 in the morning, as Reed was walking down the bridge of the wheelhouse toward the galley, he slipped in water and oil, and fell hard upon the steel deck. The fall and resulting injuries left him permanently disabled.

At the time of trial Reed had already undergone extensive surgery in Houston for the removal of two discs, and there was an indication he was in need of further back surgery for a developing Cauda Equi-na Syndrome. Defendants paid maintenance at the rate of $15 per day, except for periods of hospitalization, until August 1982, when maintenance was terminated. Just before trial in March 1983, defendants gave plaintiff a check for maintenance from August 1982 until October 25, 1982. Defendants never paid any of plaintiff’s medical expenses, which, as of the date of trial, totaled $17,743.

Reed’s suit against the defendants combined counts of unseaworthiness and Jones Act negligence as the basis for general and special damages. Additionally, plaintiff demanded maintenance and cure, and sought attorney’s fees and punitive damages for the alleged arbitrary refusal of the shipowner to meet its maintenance and cure obligations. After a four-day trial, the jury returned a combination general and special verdict finding (1) the M/V SIKEOYNESS was unseaworthy, (2) its owner was negligent, (3) plaintiff was not himself negligent, and (4) plaintiff suffered damages entitling him to $325,000. The jury also found that (5) plaintiff was entitled to maintenance and cure, that (6) he had not reached maximum cure, that (7) the termination of maintenance and cure was arbitrary and unreasonable, and that (8) attorney’s fees should be $700. For a reason undisclosed by the record, neither the court’s charges to the jury nor the verdict form mentioned the issue of punitive damages, nor was this issue specifically addressed by the trial court in the judgment on the verdict.

The owner and insurer of the SIKEOYNESS attacks this judgment on several grounds. They contend that the jury erred in all its findings of fact, that the award was excessive, and that the award of both $325,000 and maintenance and cure operated to give plaintiff an improper double recovery of lost wages and the medical expenses. Defendants also questioned the ruling of the trial court excluding an item of physical evidence. The plaintiff answered the appeal and contends that the jury award was insufficient, that the attorney’s fee of $700 was insufficient, and that the trial court should have made an award for punitive damages. We will address all of these issues raised by the parties, but first, it is necessary that we look at the appropriate standard of review for this court to test the jury’s verdict.

In Ellender v. Texaco, Inc., 425 So.2d 291 (La.App. 3rd Cir.1983), we recognized our limited role in reviewing jury verdicts in civil cases involving claims of seamen under the federal Jones Act and federal maritime law. Under the federal jurisprudence, the appropriate standard of review to test the sufficiency of the evidence in Jones Act and unseaworthiness claims tried before a jury is whether there is a “reasonable evidentiary basis” for the jury’s verdict. Loehr v. Offshore Logistics, Inc., 691 F.2d 758 (5th Cir.1982). As explained by Judge Tate in Loehr, the “reasonable evidentiary basis” standard in the federal system applies to the scrutiny of fact findings made by a jury, while the “clearly erroneous” standard applies to the review of findings by a judge, and there is a difference: reviewing a jury verdict, the appellate court exhausts its function once it determines that there is an evidentiary basis for that verdict. Id., at pp. 760-761. Bearing in mind, therefore, the limitations on our power of review, we will now turn to a consideration of the specific issues raised on appeal.

UNSEAWORTHINESS

Under the admiralty doctrine of warranty of seaworthiness the owner of a vessel traditionally is absolutely liable for any injury sustained by a crew member in the course of his employment. Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir.1977). Under this doctrine the owner of the vessel has a duty to provide a vessel that is reasonably fit for its intended use, and this duty to provide a seaworthy vessel requires that its gear, appurtenances and operation must be reasonably safe. Drachenberg v. Canal Barge Co., Inc., 571 F.2d 912 (5th Cir.1978).

In the present case the plaintiff testified that he slipped in a puddle of water containing some oil on the deck of the wheelhouse. The captain of the vessel testified that upon inspection, the deck was wet where the water comes from off the roof of the wheelhouse, but he saw no grease or oil. The captain further stated that the vessel was designed to drain water and other substances from the roof and deck levels to the fishhold, but that the drain pipe had rusted and broken. The captain, the chief engineer and the plaintiff all testified that the hardening units leaked hydraulic oil in the area where plaintiff slipped, and that the unit was leaking at the time of the accident. Given these facts, according to the opinion of a safety expert, a slippery film of. this heavy oil would be left on the walkway. Further testimony revealed there was no skid-proof material on the deck and no lighting in that area at the time.

In Curry v. Fluor Drilling Services, Inc., 715 F.2d 893 (5th Cir.1983) the court affirmed a finding that the accumulation of an oil based fluid known as “Black Magic” upon the walkway caused an unseaworthy condition. Also, in McCoy v. United States, 689 F.2d 1196 (4th Cir.1982) the court affirmed a district court’s finding that an oil and water spill in the forced draft fan area caused an unseaworthy condition.

In the present case the jury had a reasonable evidentiary basis for finding that there was a water and oil accumulation on the deck of the SIKEOYNESS which caused an unseaworthy condition, and that that condition was the proximate cause of the accident.

JONES ACT

The parties stipulated that plaintiff had seaman’s status. Therefore, he was entitled to bring an action based on negligence under the Jones Act, 46 U.S.C. Sec. 688. Federal jurisprudence declares that evidence of “the slightest negligence” is sufficient to sustain a finding of Jones Act liability. Davis v. Hill Engineering, Inc., supra.

There was evidence presented to the jury that Seacoast Products had knowledge of the leaking hardening units. There was also testimony that the area had inadequate lighting and that there was no skid-proof material upon the deck. The jury heard testimony and saw photographs indicating that the drainage system had rusted, allowing water and oil to accumulate upon the deck. This accident happened on a Tuesday, and there was evidence the vessel’s decks were cleaned only on weekends when it was in port. There was thus a reasonable evidentiary basis for this finding and the Jones Act verdict will remain undisturbed.

COMPARATIVE NEGLIGENCE

Defendants contend that the jury’s finding that plaintiff himself was not negligent was erroneous, arguing that plaintiff was not watching where he was going and that he was not using the handrail that was there for his use.

“In contrast to the broad duty imposed upon a vessel owner to supply a safe work place, the seaman’s duty to protect himself is slight.” Ceja v. Mike Hooks, Inc., 690 F.2d 1191 (5th Cir.1982). But the duty does exist. Thezan v. Maritime Overseas Corporation, 708 F.2d 175 (5th Cir.1983), cert. denied — U.S.-, 104 S.Ct. 729, 79 L.Ed. 189 (1984).

In the present case the jury’s finding that Reed was not negligent has reasonable support in the record. It was early in the morning that he traversed the bridge and the vessel lights that might have lit his way were not on, because they would have interfered with the vision of the captain who was manning the wheel while the plaintiff, the regular pilot, was getting his breakfast. The jury was therefore justified in not agreeing with the argument of defendants that the plaintiff should have been able to see the oily patch. Also, while plaintiff admitted that he was not using the rail, the jury was justified in concluding that there was no apparent need for him to use it at that time because the vessel was underway in calm inland waters at low speeds. The jury might also have concluded that holding the rail with one hand would not have prevented plaintiff from falling if his feet unexpectedly gave way. We affirm the finding that plaintiff was not negligent.

THE EXCLUSION OF PHYSICAL EVIDENCE

Appellant argues that the trial court erred in the exclusion of certain evidence and testimony surrounding the evidence. We disagree.

Over the objection of plaintiffs counsel, the trial judge initially received into evidence a paint flake about two inches square, on the representation that later evidence would establish the connexity between the flake and the vessel. Defendant’s expert testified that this flake appeared to be representative of the paint on the vessel deck which he examined on March 7, 1983, and again on the day of trial. However, he stated that he did not take this sample during his inspections.

The paint flake was never identified as being a paint sample from the M/V SIK-EOYNESS, much less from the deck where the accident occurred. There was no evidence presented as to who took the sample or when it was taken. Moreover, there was evidence suggesting that some parts of the vessel had been painted since the accident. Pursuant to renewed objection by plaintiffs counsel near the end of trial, the court struck the paint sample and the expert’s brief testimony in relation to it, instructing the jury to disregard both.

We find no error in the trial court’s determination that there was insufficient identification of the paint flake as having come from the vessel. See Pearce v. Gun-ter, 238 So.2d 534 (La.App. 3rd Cir.1970), writ not considered, 256 La. 888, 239 So.2d 543 (1970).

THE $325,000 AWARD

The jury’s award was for both special and general damages, following instructions from the judge that they could give an award for such items as pain and suffering, loss of earnings, past and future, and medical expenses, past and future. The award of $325,000 was not itemized in the verdict. Both sides complain about the amount.

Our opinion is that the sum awarded was fully justified by the plaintiff’s injuries, and the only real issue before us is whether we should increase it.

After plaintiff was injured he was treated locally by two physicians. He was then referred to Houston, where his condition was diagnosed by the orthopedic surgeon Dr. John McCutchen and surgery was performed by the orthopedist Dr. L.C. Deten-beck. In the surgery, March 1982, two discs, L3-4 and L4-5, were removed, and a decompression of the spinal canal was performed. These problems, according to the doctors, were caused by the accident. Following this surgery, there was an easing of what had previously been quite a lot of pain, and plaintiff appeared to be recovering well when in June 1982, irritation at the nerve roots in the L5-S1 area began to produce renewed symptoms. In late 1982 and early 1983 Dr. McCutchen diagnosed Cauda Equina Syndrome, which he said was related to the accident, and which he felt urgently required another operation. Failure to get this operation might, in the doctor’s words, “very well result in permanent paralysis of his lower extremities.” Dr. James Oates, a Houston physician specializing in physical medicine and rehabilitation, saw the plaintiff both before and after the operation and agreed with the diagnosis of Dr. McCutchen. He expressed a similar fear that plaintiff’s condition would worsen into a paralysis, and even found evidence of the beginnings of paralysis in the tests that he conducted. While Dr. McCutchen felt the additional surgery would have a 50-50 chance of improving plaintiff’s condition, Dr. Oates was of the opinion that surgery would not improve plaintiff but would hopefully prevent him from getting worse.

None of the five treating physicians who testified in the ease ever pronounced plaintiff fit to return to sea duty, although they hoped that he might one day improve sufficiently to do light or sedentary work, assuming he could avoid the dire consequence of paralysis which Dr. McCutchen described as “probable.” According to the five treating physicians, plaintiff endured considerable pain.

Plaintiff’s education was to the fifth grade and his work experience is limited to seamanship on menhaden boats. His work history was excellent. He produced testimony through a professor of economics and finance to show present and future loss of earnings of $250,000. Additionally, his medical bills up to trial were $17,743, and Dr. McCutchen testified that the further surgery that plaintiff needed would cost an additional $10,000. Based on this evidence, plaintiff makes a strong argument that the award of $325,000 was insufficient.

On the other hand, defendants argue that the award was excessive, and in this argument they place their reliance on the testimony of one physician who examined plaintiff twice for evaluation purposes only, and whose testimony disagreed with that of the other medical experts. This physician, an orthopedist who does not do back surgery, examined plaintiff physically and took X-rays on two occasions, once before the plaintiffs operation in Houston and once afterwards. Although this expert, Dr. Norman P. Morin, found on his examinations a less serious condition than any of the treating physicians, he told the jury that he would defer to the opinion of Dr. McCutchen. In view of this frank admission, we doubt if the jury was disposed to believe that plaintiffs condition was any less serious than what his treating physicians testified.

Considering the overwhelming evidence of the seriousness of plaintiff’s condition, the award seems low, but we are nevertheless bound by the constrictions placed upon appellate review in the federal system, noting that the court in Thezan v. Maritime Overseas Corporation, supra, said that it would overturn a jury verdict for inadequacy “only upon the strongest of showings.” We cannot say that the evidence compels a higher award, and therefore we will not increase it.

DOUBLE RECOVERY

Defendant argues that the trial court erred in rendering judgment awarding the plaintiff maintenance and cure benefits because the damages awarded the plaintiff by the jury would have necessarily included the same elements of damage.

In the present case we find no double recovery in the award. In Ceja v. Mike Hooks, Inc., 690 F.2d 1191 (5th Cir.1982) the court explained that maintenance is a separate and distinct damage element from lost wages “absent an ‘explicit contractual provision specifying that ... wages [are] to be deemed a substitute for maintenance _’” Id., at p. 1197. Defendants here have not alleged or proved a specific contract that wages were to be deemed a substitute for maintenance.

In the present case the trial court instructed the jury under the unseaworthiness and negligence claims that plaintiff was entitled to lost wages as well as future wages and all past and future medical expenses. The court in its instruction as to the maintenance and cure claim merely stated that the plaintiff would be entitled to the stipulated $15 per day from the date of the accident until maximum cure.

The trial court’s judgment reflecting the maintenance and cure findings correctly provided for plaintiff’s maintenance until maximum cure is reached. The award and instructions to the jury as to maintenance and cure did not provide for the payment of plaintiff's medical expenses since this element of damage was included in the general award. Therefore, there was no double recovery.

MAINTENANCE AND CURE

The shipowner paid maintenance benefits at the rate of $15 per day from the accident until August 1982, when it unaccountably terminated these payments. There is no explanation in the record as to why benefits -were terminated. According to the witnesses, the only person who knew why it happened was a Mr. John Talbot, an employee of the shipowner who lived and worked in New Jersey, and defendants did not call him to testify.

In March 1983 defendants gave plaintiff a check covering maintenance for the period from August 1982 to October 25, 1982. The letter accompanying this check explained the date of October 25, 1982, as “the date he was determined to have achieved maximum medical cure on examination by Dr. Norman Morin.” At the trial, which began on March 18, 1983, Dr. Morin testified that he told Mr. Clements, counsel for defendants, on February 23, 1983, that plaintiff had, in his opinion, reached maximum cure on October 25, 1982, the last date he saw the plaintiff for evaluation. However, on March 3, 1983, six days before the decision was made by the defendants that they would rely on Dr. Morin’s opinion that maximum cure had been reached on October 25 the year before, defendants’ counsel was in possession of the most recent report of Dr. McCutchen, indicating that he had seen plaintiff since Dr. Morin and that plaintiff’s condition had deteriorated and he was in need of further surgery. Defendants were therefore clearly on notice by uncontradicted medical opinion more recent than that of their own expert, that plaintiff had not reached maximum cure by October 25, 1982, and yet, for the second time, they terminated maintenance payments.

The jury found defendants arbitrary and capricious in failing to pay maintenance and cure and found that plaintiff had not reached maximum cure as of the date of its verdict.

The jury was correct in these conclusions. Maintenance is the daily allowance for food and lodging paid to a seaman who is injured or becomes ill in the service of the ship. Hodges v. Keystone Shipping Co., 578 F.Supp. 620 (S.D.Tex. 1983). (In the present case the amount was stipulated at $15 per day.) This amount is to be paid by the vessel owner while the seaman is unfit for duty (and not hospitalized) until the time when he reaches maximum cure. Pelotto v. L & N Towing Company, 604 F.2d 396 (5th Cir.1979). Maintenance and cure is owed whenever the seaman is hurt in the service of the vessel, and it is an obligation independent of liability under either unseaworthiness or Jones Act negligence. Id.

Maximum cure is achieved, according to Pelotto v. L & N Towing Company, supra, when it appears probable that further treatment will result in no betterment of the seaman’s condition. In the instant case, the jury heard two physicians who had seen plaintiff after October 25, 1982, tell them that plaintiff needed an additional operation to hopefully improve his condition. There was no testimony to the contrary. He clearly had not achieved maximum cure at the time of trial and the jury’s verdict in that regard was eminently correct.

Defendants have never paid any medical expenses. Until arguments before this court, they never offered either a defense or an explanation for this neglect. During oral arguments, however, the defendants for the first time urged the idea, citing no cases, that under traditional maritime law, the shipowner has an obligation to provide cure but does not have an obligation to pay for it. We have found no factual or jurisprudential support for this theory. To the contrary, see Pelotto v. L & N Towing Company, supra; Caulfield v. AC & D Marine, Inc., 633 F.2d 1129 (5th Cir.1981); and Parker v. Texaco, Inc., 549 F.Supp. 71 (E.D.La.1982).

We turn next to a consideration of the attorney’s fee of $700 which the jury awarded plaintiff. In Gaspard v. Taylor Diving & Salvage Company, Inc., 649 F.2d 372 (5th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed. 445 (1982), the court stated that if a shipowner, in failing to provide maintenance and cure, has been callous and recalcitrant, or arbitrary or capricious, reasonable attorney’s fees may be recovered. The cases of Harper v. Zapata Offshore Company, 563 F.Supp. 576 (E.D.La.1983), and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), indicate that the reasonableness of an award of attorney's fees in a maintenance and cure case is to be judged by the abuse of discretion review.

We have no hesitancy in concluding that this award was so low as to amount to an abuse of discretion. Attorney fees were due only with respect to the work involved in the maintenance and cure count of the lawsuit, and the jury was carefully instructed in that regard. Although there was no evidence presented regarding counsel’s work on that part of the case, we conclude that there was visible evidence before the jury regarding counsel’s efforts sufficient to justify a substantially larger fee than the one that was awarded. The trial, held in Cameron on the Gulf coast, lasted four days. Medical depositions were presented to the jury that were taken in Lake Charles and Houston and showed the presence of counsel. The nature of the case and its complexity necessarily involved considerable work. There was substantial evidence regarding maintenance and cure. Had the case been tried only on the maintenance and cure count, the entire body of medical testimony would have had to be submitted. As recently as the last cycle, a panel of this court upheld an attorney’s fee award of $7500 in a worker’s compensation case tried under state law. Latiolais v. The Home Insurance Co., 454 So.2d 902 (La.App. 3rd Cir.1984). There is no question in our minds that the circumstances of this case, though governed by different rules, deserves an attorney’s fee award at least equivalent to the award in Latiolais. The award of $700 was palpably insufficient; we adjust it to $7500.

PUNITIVE DAMAGES

Reed demanded punitive damages in his petition, but, for reasons which do not appear in the record, this issue was not given to the jury, neither side demanded its submission to the jury, and the trial court failed to make a finding regarding the issue and include it in the judgment. In his answer to the appeal, plaintiff asks us to award punitive damages.

Under our La.C.C.P. arts. 1811 and 1812, if an issue raised by the pleadings is not submitted to the jury and a party makes no objection, he is considered to have waived his right to a trial by jury of the issue omitted. Our articles are based on Federal Rules Civ.Proc., Rule 49(a), the interpretation of which, as seen in J. C. Motor Lines, Inc. v. Trailways Bus System, 689 F.2d 599 (5th Cir.1982), is that the failure to object to the omission of a special issue is deemed to waive jury trial on the issue, but the same rule allows the court to make its own findings on the omitted issue. Our law reads the same. The failure of the trial court in the instant case to make a finding as to punitive damages, can only be regarded as a rejection of that claim. Because it thereby becomes a judge decision and not a jury decision which we are reviewing, the “clear error” standard applies, and, in our opinion, the failure of the trial court to make an award for punitive damages was clearly erroneous. We are authorized under La.C.C.P. arts. 2082 and 2164 to render any judgment which is just upon the record on appeal; similar authority is conferred on federal appellate courts by 28 U.S.C. Sec. 2106. We shall cure the omission of punitive damages in the court below by making an award.

Punitive damages are recoverable under the general maritime law on a showing of willful and wanton misconduct by the shipowner. Complaint of Merry Shipping, Inc., 650 F.2d 622 (5th Cir.1981). Citing this case, a federal trial court in the Eastern District of Louisiana in Harper v. Zapata Off-Shore Company, supra, upheld a jury award of punitive damages against a defendant which had arbitrarily reduced maintenance payments from $40 a day to $8 a day, but reduced the punitive award from $500,000 to $250,000. In that case the jury apparently found that the defendant Zapata had acted “with malice, willfulness [and] callous and reckless indifference”, this being the language used in the jury charge. Citing the Harper case as well as the 5th Circuit’s Merry Shipping, Inc., case, another district court in the Southern District of Texas, Hodges v. Keystone Shipping Company, supra, refused to reduce a $100,000 punitive damage award for defendant’s willful and capricious failure to provide maintenance and cure to plaintiff.

In the present case, the defendant’s conduct — stopping maintenance twice, without any explanation, reasonable or otherwise, and paying no cure benefits whatsoever — is deserving of every adjective used in any of the above cases, including “willful”, “wanton”, “persistent”, “callous”, “recalcitrant”, “with malice”, “reckless indifference”, and the words used on the verdict form employed here, “arbitrary” and “unreasonable”.

Punitive damages, so the above cases say, are meant to punish and deter. To paraphrase Judge Duplantier in Harper, supra, the circumstances cry out for us to assess punitive damages against Seacoast Products, to prevent repetition of the conduct found here, and we do so, amending the judgment rendered herein to award $175,000 as punitive damages.

For the reasons given above, the judgment of the trial court is amended and judgment is hereby rendered awarding $7500 attorney’s fees, and judgment is hereby rendered awarding $175,000 as punitive damages; in all other respects, the judgment appealed from is affirmed. Defendants are to pay all costs of this appeal.

AMENDED, AND AS AMENDED, AFFIRMED.

On Rehearing.

Following our judgment sustaining the jury’s findings of unseaworthiness and Jones Act negligence and affirming the jury's award of general damages, as well as increasing the jury’s award of attorney’s fees and amending the trial court’s judgment by awarding punitive damages, defendant filed an application for rehearing. The application contained suggested reasons why the action of this court was erroneous. Specifically, defendant alleges this court erred as follows: in affirming the jury’s finding of unseaworthiness and Jones Act negligence; in awarding punitive damages; in increasing the award of attorney’s fees; and in affirming the jury’s refusal to find the plaintiff comparatively negligent.

We grant a rehearing in order to review our previous disposition of this matter.

After reviewing the record again, studying the briefs, and studying the applicable statutory law and jurisprudence, we conclude that we erred in our previous disposition of this case, but only as regards the granting of an award of attorney’s fees; in all other respects the decision remains unchanged.

In Holmes v. J. Ray McDermott & Company, Inc., 734 F.2d 1110 (5th Cir.1984), the trial court awarded plaintiff the sum of $10,000 in attorney’s fees due to the defendant's conduct in refusing to continue plaintiff’s maintenance and cure benefits. The appellate court reversed the award because of plaintiff’s failure to produce any evidence with regard to the appropriate amount of attorney’s fees.

In the present case the plaintiff also failed to produce any evidence with regard to an appropriate amount for attorney’s fees. Since we must apply federal law, and in accord with the holding of Holmes, supra, we must reverse our judgment increasing plaintiff’s award for attorney’s fees to $7,500, and also we must reverse the jury’s finding that plaintiff was entitled to $700 in attorney’s fees.

Although it is not mentioned in defendant’s brief for rehearing, we take cognizance of the fact that Harper v. Zapata Off-Shore Company, 563 F.Supp. 576 (E.D. La.1983) — a punitive damage case relied on by this court in its original opinion — has been reversed on appeal. See Harper v. Zapata Off-Shore Company, 741 F.2d 87 (5th Cir.1984).

On appeal the court in Harper, supra, determined that punitive damages for the willful and arbitrary refusal to pay maintenance and cure benefits are available under general maritime law; however, the “willful, wanton and callous conduct required to ground an award of punitive damages requires an element of bad faith.” In Harper the court reversed the awards of punitive damages and attorney’s fees because the record showed that the defendant did not act in callous disregard of plaintiff’s rights. The defendant timely investigated his claim, paid all his medical bills, and made regular maintenance payments, although these were later found to be inadequate. The court declined to impute bad faith to Zapata’s decision to pay what it thought was the legal minimum for maintenance benefits.

In the present case the defendant without any explanation terminated plaintiffs maintenance benefits twice and failed to pay the major part of the plaintiffs medical bills. It is clear from the record the defendant acted in callous disregard of plaintiffs rights, and we easily impute bad faith on defendant’s decisions to terminate plaintiff’s maintenance benefits and its decision to refuse to pay plaintiff’s cure.

For these reasons, our judgment is reversed insofar as it affirmed and increased the jury’s award of attorney’s fees, and it is now ordered that the jury’s award of attorney’s fees be reversed. In all other respects our judgment is hereby affirmed.

REVERSED IN PART AND AFFIRMED IN PART.