author: CURRAULT, Judge.

text:
    Billy Wayne ARMSTRONG v. LAND & MARINE APPLICATORS, INC., et al. Billy Wayne ARMSTRONG v. LAND & MARINE APPLICATORS, INC., et al.
    Nos. 84-CA-509, 84-CA-247.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Rehearing Denied Feb. 28, 1985.
    Writs Denied April 12, 1985.
    Craig R. Nelson, Hulse, Nelson & Wan-ek, New Orleans, for plaintiff-appellee.
    Thomas E. Loehn, Joseph L. von Rosenberg, III, Boggs, Loehn & Rodrigue, New Orleans, for defendant-appellant.
    Before BOUTALL, CURRAULT and GRISBAUM, JJ.
   CURRAULT, Judge.

This is an expedited appeal of a summary judgment granted to third-party plaintiff, Clemco Industries (Clemco) in a worker’s compensation case against third-party defendant, Commercial Union Insurance Company (Commercial Union)

The facts reveal that on or about August 31, 1981, plaintiff, Billy Wayne Armstrong, filed suit against various defendants, including Clemco. Plaintiff alleged that he had contracted a lung disease known as silicosis as a result of his working as a sandblaster-painter for various employers from 1962 through 1979, but that he first learned of his disease on June 19, 1981.

Clemco subsequently filed a third-party demand against Commercial Union, alleging that Commercial Union issued policies of liability insurance to Clemco, effective from August 1, 1970 until September 30, 1976, and that Commercial Union owed indemnification and its pro-rata share of Clemco’s future defense costs.

Commercial Union filed an answer denying indemnity and the duty to defend on the basis that the period of coverage expired five years prior to the bodily injury.

Third-party plaintiff, Clemco, subsequently filed a motion for summary judgment on these issues; and on July 3, 1984, the motion was granted and defendant was ordered to defend Clemco in this suit.

As a result, third-party defendant, Commercial Union, perfected this appeal of the summary judgment granted in Clemco’s favor.

Appellant, Commercial Union, alleges that the trial court erred in granting the motion of Clemco for summary judgment and ordering Commercial Union to participate in Clemco’s defense, where the Commercial Union policy, on its face, clearly does not provide coverage for the injuries alleged by plaintiff.

Prior to resolving the issue raised by appellant, the court must first determine which state law applies as appellee argues that California law is applicable to the duty to defend in this case. We disagree.

The Louisiana Supreme Court in Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973) adopted the “interest analysis” theory as the proper approach for resolving choice of law problems in uninsured motorists policies written in other states citing with approval Restatement, Second, Conflict of Laws, 86 (1969). Of interest is the statement by the court as follows:

“Conflict of Laws is that part of the law of each state which determines what effect is given to the fact that the case may have a significant relationship to more than one state.” Restatement, Second, Conflict of Laws, § 2 (1969). A false conflict occurs when it is found that only a single state has an interest in the application of its law, and that the other state involved has no interest in the application of its law in the case.”

Since the Jagers decision, the interest analysis test has been applied in the following cases involving uninsured motorist insurance coverage in policies written in states other than Louisiana. Wilson v. State Farm Insurance Co., 448 So.2d 1379 (La.App. 2d Cir.1984); Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir.1976); Brawner v. Kaufman, 496 F.Supp. 961 (E.D.La.1980); Bell v. State Farm Fire & Casualty Co., 527 F.Supp. 300 (W.D.La. 1981); Bell v. State Farm Mut. Auto. Ins. Co., 680 F.2d 435 (5th Cir.1982); Jones v. American Fire-Indemnity Insurance Company, 442 So.2d 772 (La.App. 2d Cir. 1983). See also Wickham v. Prudential Ins. Co. of America, 366 So.2d 951 (La. App. 1st Cir.1978). In Champion v. Panel Era Mfg. Co., 410 So.2d 1230 (La.App. 3d Cir.1982), the interest analysis was applied in cases involving non-auto insurance policies to find the foreign insurance contract governed by the law of Louisiana. On the other hand, the approach was rejected in Richard v. Beacon Nat. Ins. Co., 442 So.2d 875 (La.App. 3d Cir.1983); and Abel v. White, 430 So.2d 202 (La.App. 4th Cir. 1983).

We agree with the court in Wilson, supra, that Jagers and its progeny “represent sound public policy designed to permit Louisiana courts to apply to situations requiring choice of law where Louisiana interest is sufficient to mandate this result.” At page 1382.

In this case, the alleged injury occurred in Louisiana, purportedly by a product used for many years in Louisiana. California has no significant interest in the application of its law relative to either the duty to defend or the question of insurance interpretation. Consequently, this is a false conflict and we hold that Louisiana law applies to this case.

Appellant argues that the contract provision and the jurisprudence mandates that the injury manifest itself during the policy term in order to trigger coverage and thus the duty to defend.

In Cute-Togs of New Orleans, Inc. v. Louisiana Health Service & Indemnity Co., 386 So.2d 87, 89 (La.1980), the Louisiana Supreme Court reiterated the rule regarding the insurer’s duty. to defend as follows:

“In American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969), we clearly stated the ‘duty to defend’ rule as follows:
‘... the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. * * *
‘Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured. * * * 230 So.2d at 259. [cits, omitted]”

Plaintiff alleges in the petition, in pertinent part, that: ...

Ill
Plaintiff over the approximate period 1962 through 1979 worked as a sandblaster/painter for various employer-defendants, as hereinafter indicated.
XVIII
During the period of plaintiff’s employment in the sandblasting-painting industry, as aforedescribed, plaintiff utilized non-air fed hoods provided by his employers which were manufactured and sold by Pulmosan Safety Equipment Company and/or Clemco Industries.
XXII
As a direct consequence of plaintiff’s sandblasting activities as aforedescribed, he was caused to contract the incurable lung disease known as silicosis and, as a direct consequence thereof, plaintiff is permanently and totally disabled.
XXIII
Plaintiff did not become aware of the fact that he had silicosis as a result of the use of silica abrasives and non-air fed hoods until receipt of the report of Dr. Hans Weill on or about June 19, 1981.
XXIV
Plaintiff’s contraction of silicosis was a direct result of his use of non-air fed hoods and silica abrasives during the course of his employment in the sandblasting-painting industry.
XXX
Pulmosan Safety Equipment Company and Clemco Industries a/k/a Clemco-Clementina Limited, are absolutely liable unto plaintiff in that the hoods sold by them to plaintiff’s employers, and used by plaintiff in his employment for the purpose for which they were sold, were not fit for the purpose for which they were sold (sandblasting) and were the direct cause of plaintiff’s contraction of silicosis.
XXXI
Pulmosan Safety Equipment Company and Clemco Industries, a/k/a Clemco-Clementina Limited were negligent proximately causing plaintiff’s injuries and disability, in the following particulars, among others that will be shown at the time of trial, to wit:
(a) In defectively designing the hoods;
(b) In defectively manufacturing the hoods;
(c) In failing to warn potential users of the inherent dangers of the hoods;
(d) In failing to warn against the use of the hoods with silica abrasives;
(e) In failing to warn of the danger of contracting silicosis when using the hoods.

The insurance contract at issue provided coverage from August 1, 1960 until September 30, 1976, and the terms of the contract state:

1. COVERAGE A — BODILY INJURY LIABILITY COVERAGE B — PROPERTY DAMAGE LIABILITY
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury or
Coverage B. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements, “occurrence” means an accident, including injurious exposure to conditions, which results, during the policy period, in
bodily injury or property damage neither expected nor intended from the standpoint of the insured;
“bodily injury” means bodily injury, sickness or disease sustained by any person.

Appellant urges the court to interpret the contract to require “manifestation of the injury” during the term of the policy as opposed to the “exposure” theory, and they argue that to do so would exclude coverage as plaintiff’s petition alleges that the injury did not manifest itself until 1981. According to the arguments by the parties, this determination is necessary to the resolution of the correctness of the summary judgment. Both parties cite jurisprudence from the federal courts as the Louisiana cases do not address the issue specifically under these facts. However, in our opinion, we do not find it necessary to explore the manifestation vs. exposure theories of contract interpretation propounded at this time as the duty to defend rule decides the matter in appellee’s favor.

As stated by the Louisiana Supreme Court, the duty to defend is triggered by the allegations in plaintiff’s petition. Cute-Togs, supra. In Cute-Togs, the petition alleged facts giving rise to breach of contract between plaintiff Cute-Togs and defendant Blue Cross. Blue Cross’s liability insurer was not held to a duty to defend because the breach of contract was a clearly excluded occurrence.

In reference to the arguments on the duty to defend rule, appellant cites Young Oil Co. of Louisiana, Inc. v. Durbin, 412 So.2d 620 (La.App. 2d Cir.1982); Aetna Insurance Co. v. Grady White Boats, Inc., 432 So.2d 1082 (La.App. 3d Cir.1983); White v. Robinson, 367 So.2d 1358 (La. App. 4th Cir.1979); Blue Ridge Insurance Company v. Newman, 423 So.2d 1 (La. App. 1st Cir.1982); Jackson v. Lajaunie, 270 So.2d 859 (La.1972).

In Jackson, supra, after a trial on the merits, the third-party defendant homeowner insurer was dismissed because the facts of the petition alleged an accidental shooting at a gas station and the policy specifically excluded acts connected with the gas station. The policy in Aetna Ins. Co. v. Grady White Boats, Inc., supra, excluded damage to the named insured’s products, and there plaintiffs petition alleged damage to one of his products (a vessel). As the policy in question excluded such damage, the insurance company had no duty to defend. In Young, supra, the petition alleged misappropriation which was a clearly excluded act in the policy at issue here. Finally, the policy in White v. Robinson, supra, clearly excluded coverage for an automobile leased by the insured to anyone other than a salesman for use on business of the insured.

In this case, the petition alleges that plaintiff utilized Clemco’s product (a hood used in the sandblasting industry) for 20 years, a result of which use he contracted silicosis; that plaintiff did not become aware of the fact that he had the silica-related disease (silicosis) until after it was medically diagnosed in 1981. These allegations, in our opinion, do not unambiguously exclude coverage under the policy as written. Appellants assert to the contrary, on the basis that the illness was diagnosed in 1981. However, the policy does not require that the “bodily injury” or “disease” be diagnosed during the policy term, it requires that the injury or illness occur during the term of the policy. The question of whether an illness or injury occurs during the policy term is factual and not yet determined by a trial on the merits. Further, contrary to appellant’s assertion, plaintiff’s petition need not include facts indicating that the injury specifically arose during the period the policy was in effect. The duty to defend rule requires only that the facts alleged in the petition do not unambiguously exclude coverage. As we find that the allegations of the petition herein do not unambiguously exclude the fact of bodily injury occurring during 1970 to 1976, appellant is required to participate in appellee’s defense regardless of the possible outcome.

Therefore, after a review of the record and evidence, we hereby affirm the summary judgment granted in favor of third-party plaintiff, Clemco Industries, and ordering third-party defendant, Commercial Union Insurance Company, to participate in Clem-co’s defense.

Appellant is to pay all costs of this appeal.

AFFIRMED.

      . This appeal arises from a suit in the trial court from which a separate appeal involving other parties was pending before this court. See 463 So.2d 1331. Thus, the appeals were consolidated.

      . The Louisiana Supreme Court granted writs in Blue Ridge and is now pending. Thus the case will not be discussed. [427 So.2d 865 (La.1983) ].


source: Caselaw Access Project

author: CURRAULT, Judge. PER CURIAM.

license: Public Domain

text:
    Billy Wayne ARMSTRONG v. LAND & MARINE APPLICATORS, INC., et al. Billy Wayne ARMSTRONG v. LAND & MARINE APPLICATORS, INC., et al.
    Nos. 84-CA-247, 84-CA-509.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Rehearing Denied Feb. 28, 1985.
    Writs Denied April 12, 1985.

      Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, for plaintiff-appellant.
    E. Carroll Rogers, Robert B. Deane, Chaffe, McCall, Phillips, Toler & Sarpy, A. Wendel Stout, Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appellees.
    Before BOUTALL, CURRAULT and GRISBAUM, JJ.
   CURRAULT, Judge.

This appeal arises from summary judgment granted in favor of defendants, Certain Underwriters at Lloyds of London (Lloyds), Harbor Insurance Company (Harbor) and Insurance Company of North America (INA) in an action for worker’s compensation brought by plaintiff, Billy Wayne Armstrong.

The record discloses that plaintiff is an offshore oil worker, painter and sandblaster. During his extensive period of employment in the offshore oil industry, he was employed by several employers, one of whom was Land and Marine Services, Inc. Apparently plaintiff was employed by Land & Marine Applicators, Inc. in offshore sandblasting and painting from the last quarter of 1964 through the second quarter of 1967. During that period Land & Marine was the assured under various contracts of insurance, including a primary worker’s compensation and employer’s liability insurance policy issued by INA. The excess insurance was made subject to the same terms, conditions and exclusions of the INA policy.

Fourteen years later, plaintiff allegedly discovered that he was suffering from the disease of silicosis. Consequently, he filed suit on August 31, 1981 against 48 various named defendants, including Land & Marine, Lloyds and Harbor. As to them, he alleged that he developed the disease silicosis as a result of his employment with Land & Marine.

Defendants INA, Lloyds and Harbor filed separate motions for summary judgment based on a thirty-six-month exclusion in the primary insurer’s (INA) contract, and incorporated into the excess insurers contracts (Lloyds and Harbor) which states that:

“This policy does not apply: ... (e) under Coverage B to bodily injury by disease unless prior to thirty-six months after the end of the policy period written claim is made or suit is brought against the insured for damages because of such injury or death resulting therefrom.”

On January 10, 1984, the motion was granted as to INA; and on March 9, 1984, the motions were granted dismissing the suit against Lloyds and Harbor.

Plaintiff, Billy Armstrong, thereafter perfected an appeal of those judgments.

The issue for review is whether the thirty-six month exclusion violates public policy insofar as worker’s compensation is concerned, and whether the provision conflicts with LSA-R.S. 22:629.

The precise question presented for our review has not been previously considered by the Louisiana courts, although appellee cites several Louisiana cases which have found in other types of policies, clauses containing “claims made” or “discovery” provisions not to be against public policy, i.e., Oceanonics, Inc. v. Petroleum Distributing Company, 292 So.2d 190 (La.1974) [general liability policy]; Livingston Parish School Board v. Fireman’s Fund American Insurance Company, 282 So.2d 478 (La.1973) [professional liability policy]; Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir.1972) writ refused 261 La. 824, 261 So.2d 230 (La.1972) [health and accident policy]. We find those cases inapplicable for the reasons that the parties involved in those disputes over coverage were the parties to the contract; and also because the types of policies involved in those decisions did not involve the special considerations the courts must utilize to determine an injured worker’s rights.

In further support of the summary judgments, appellees cite a federal decision which directly addresses both public policy and the question of whether the thirty-six month exclusion violates LSA-R.S. 22:629 subd. A(3) found in the insurance code. In that case, Scarborough v. Travelers Insurance Company, 718 F.2d 702 (5th Cir. 1983), the federal Fifth Circuit analyzed and analogized the above-mentioned Louisiana cases, and found that the thirty-six-month provision is not against the public policy of Louisiana. The court further found that the provision does not violate LSA-R.S. 22:629, subd. A(3) for the reason that the statute limits the right of the insurer to reduce the time period within which the insured (or the injured party) can bring suit against the insurer. The thirty-six-month provision, the court held on the contrary, places no time limit on the right to bring suit, but defines the “duration of the covered risks” provided by the policy.

After reviewing the Scarborough ease, we conclude that the decision is likewise inapplicable to the facts herein for one of the reasons the Louisiana cases are distinguishable; that is, that the court addressed the issues vis-a-vis the rights of the contracting parties (i.e., the employer as against the employer’s insurer.). The ef-feet of the thirty-six month provision on the worker, not before the court in Scarborough, is subject to other consideration in light of the statutory protections of the worker’s compensation statutes. Insofar, however, as Scarborough may be interpreted to imply or infer that the same result applies to the worker, we cannot agree with the decision as we find the provision invalid in these circumstances.

It must be recognized that the compensation of injured workers is an area specially regulated by the Louisiana legislature in LSA-R.S. 28:1021-23:1351, which is commonly known as the worker’s compensation act. Furthermore, the legislature, through its promulgation of an insurance code, specifically regulates the insurance industry for the purpose of protecting the public interest. LSA-R.S. 22:1-22:1912. Worker’s compensation insurers are subject to the general provisions of the insurance code and are further regulated by special provisions in the worker’s compensation act, in particular LSA-R.S. 23:1161— 23:1182.

As a matter of policy, the worker’s compensation act in general is designed to balance the interests of the worker and the employer, with the theoretical concurrent benefit to the public of reducing the cost of doing business. Under the act, the employee is forced to relinquish his right to recover for injuries in tort and receive damages possibly more in line with the injury; in exchange the workman receives the benefit of faster compensation without the difficulties inherent in tort litigation. The employer who is forced to pay, except in very limited circumstances, is not burdened by high awards which could put the company out of business. Theoretically, the public benefits in that the integrity of the business community is maintained, injured workmen are compensated quickly and the cost of doing business remains reasonable with the result that the prices of goods and services do not overburden the consumer.

Occupational diseases such as silicosis and asbestosis are long-term developing diseases which-, because of their medical nature, involve symptoms which appear gradually. These diseases are unique and have in the past caused problems for the plaintiff in seeking recovery. In an effort to remedy some of the problems, the legislature provides a specific right to recover for these illnesses and provides that the right of action for occupational diseases accrues where there is:

(1) manifestation, (and)
(2) disability, (and)
(3) knowledge that the disease is occupationally related.

The workman is then given six months in which to file a claim. LSA-R.S. 23:1031.-1(E), (F)

In regard to insurers of worker’s compensation liability, the liability of the insurer is the same as the insured and that liability is an issue of fact which must be determined in the trial court. Most importantly, those companies who choose to write compensation insurance do so for the benefit of the employee under the worker’s compensation act. LSA-R.S. 23:1162, in particular, states that:

A. No policy of insurance against liability arising under this Chapter shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to compensation all installments of the compensation that may be awarded or agreed upon, and that this obligation shall not be affected by any default of the insured after the injury, or by any default in the giving of any notice required by such policy, or otherwise. This agreement shall be construed to be a direct obligation by the insurer to the person entitled to compensation, enforceable in his name. No policy of insurance against liability under this Chapter shall be made unless the policy covers the entire liability of the employer; provided, that as to the question of the liability as between the employer and the insurer the terms of the insurance contract shall govern, and provide, further, that a contract of indemnity may be issued to an employer qualified as a self-insured under this Chapter, by which contract an insurer may undertake to indemnify such employer against loss or losses arising with respect to his obligations under this Chapter in excess of a stated or determinable amount.
B. When an employer is engaged in more than one business for the purpose of insurance against his liability under this Chapter, each separate and distinct business may be covered by separate policies.
C. All policies insuring the payment of compensation must contain a clause to the effect that as between the employee and the insurer, the notice of the insured or the knowledge of the occurrence of the injury on the part of the insured, shall be deemed to be notice or knowledge on the part of the insurer, as the case may be.
D. The insurer shall be subrogated to all rights and actions which the employer is entitled to under this Chapter. As amended Acts 1962, No. 457, § 1. (Emphasis added)

Under this statute, the worker is provided protections superior to the insurance contract rights of the employer and insurer and the right to recovery overrides any limitations if he is as a factual matter entitled to recover. The worker’s compensation insurer is bound to cover the entire liability of the employer. The insurer is obligated to pay regardless of any default on the employer’s part; and notice of the illness or injury to one, or the knowledge of one, is imputed to the other. Where a dispute as to liability arises between the employer and insurer, the terms of the contract govern and are enforceable. Thus, as to the effect of this agreement between the contracting parties (as is the situation in those cases cited in Louisiana approving “claims made” provisions and the Scarborough case) the provision may be justifiable and reasonable. However, because the act clearly seeks to compensate the employee for the unique and problematic disease of silicosis and asbestosis, a restriction by an insurance provision which denies coverage unless a claim is brought within a certain period has the potential effect of barring recovery in direct violation of the worker’s compensation act, in particular LSA-R.S. 23:1162. It is furthermore indirectly repugnant to LSA-R.S. 22:629, subd. A(3) of the insurance code since it limits the worker’s right to sue before the action accrues in respect to all insurances, including worker’s compensation. Consequently, insofar as the thirty-six month limitation penalizes or adversely affects the right of recovery of a statutorily protected worker suffering from an occupational disease, we find the provision void.

Accordingly, after a review of the law and evidence, the summary judgments granted to defendants Certain Underwriters At Lloyds of London, Harbor Insurance Company and Insurance Company of North America are hereby reversed. Cost of appeal is to be assessed proportionately between defendants-appellees.

REVERSE.

ON APPLICATION FOR REHEARING

PER CURIAM.

Defendant-appellees, Certain Underwriters at Lloyds of London (Lloyds); Harbor Insurance Company (Harbor) and Insurance Company of North America (INA) filed a motion for rehearing after an opinion by this court reversed the trial court’s granting summary judgment in their favor. In this respect, appellees reurge their original arguments as well as pointing out a fact not considered originally and which appellees assert provides a basis for re-argument.

Briefly, the ease involves an interpretation of a 36 month exclusion clause' in a contract of worker’s compensation and employer’s liability insurance executed between a former employer of plaintiff-appellant and the defendant-appellees.

In reversing the trial court judgment which granted summary judgment in appel-lees’ favor, we found the provision to be directly in conflict with the public policy inherent in the Louisiana Worker’s Compensation Act and indirectly repugnant to the public policy underlying the Louisiana Insurance Code.

Appellee, however, argues that the provision which is found under Coverage B of the policy is a maritime provision and thus our decision premised upon application of the Louisiana public policy is faulty as the case falls solely within the law of admiralty. After our review, we find that the provision does appear to relate to maritime claims; however we also find that this factor does not change our result.

The plaintiff-appellant alleges a seaman status in his petition, but that fact has not yet been established. Determination of a plaintiff’s status as a seaman is a mixed question of law and fact. Crador v. La. Dept, of Highways, 625 F.2d 1227 (5th Cir.1980) writ den., 452 U.S. 915, 101 S.Ct. 3048, 69 L.Ed.2d 417. The jurisprudence provides that under certain circumstances an appellate court may make that determination without a factual finding by the trial court, but that is only appropriate when the record clearly reveals facts showing plaintiff to be either within or without the ambit of admiralty jurisdiction. Bouvier v. Krenz, 702 F.2d 89 (5th Cir.1983). The record is not clear in this case, thus as a vital factual matter is yet to be resolved, the summary judgments are particularly inappropriate. Consequently, we pretermit the question of the viability of the 36 month provision in the context of admiralty law until such time plaintiff’s seaman status is established.

Insofar as our opinion disposed of appel-lee’s other arguments, and insofar as a trial on the merits may result in a finding that plaintiff-appellant is entitled to relief under Louisiana law, we find that neither a rehearing nor a reversal is warranted.

For the foregoing reasons, therefore, the motion for rehearing is hereby denied.

REHEARING DENIED.

      . LSA-R.S. 22:629 provides, in pertinent part, that:
      "A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement: ... "(3) Limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances unless otherwise specifically provided in this Code.”

      . As amended by Act 666 of 1980, effective July 24, 1980.

      . The facts are more fully delineated in Armstrong v. Certain Underwriters at Lloyd’s of London, etal, 463 So.2d 1327 (La.App. 5th Cir. 1984).

      . LSA-R.S. 23:1021 et seq.

      . In particular see LSA-R.S. 22:629.


author: LOBRANO, Judge.

text:
    Albert J. HUDDLESTON, Robert D. Martinez, and his wife, Mardel W. Martinez, Jacques E. Lauer, and his wife, Alva N. Lauer, Margaret Louise Huddleston, Kevin Doyle Huddleston, Lindsay Madeline Huddleston, and Alicia St. John Huddleston v. BOSSIER BANK & TRUST COMPANY.
    No. CA-2038.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Feb. 26, 1985.
    Writ Granted April 19, 1985.

      Peter J. Butler, Aubrey B. Hirsch, Jr., M. Shawn McMurray, Butler & Heebe, New Orleans, for plaintiffs/appellants.
    Robert A. Mathis, Newman, Drolla, Mathis Brady & Wakefield, New Orleans, for defendant/appellee.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   LOBRANO, Judge.

This appeal arises out of a suit for usury brought by plaintiff-appellants, Albert J. Huddleston, and his wife, Aurelia S. Hud-dleston, Robert D. Martinez and his wife, Mardel W. Martinez and Jacques E. Lauer, and his wife, Alva N. Lauer (hereinafter Huddleston) against defendant-appellee, Bossier Bank and Trust Company (hereinafter Bossier) for the return of certain payments, (interest and non-interest) made in connection with a loan for $825,000.00. The lower court rejected Huddleston’s claim but did award them $9,250.00 in attorney fees. Both parties have appealed.

STATEMENT OF THE CASE:

Albert J. Huddleston, as the owner of an undivided one-third interest in the apartment complex known as the “Malibu Apartments” filed suit in November of 1977 seeking a partition by licitation. The lawsuit proceeded to a June 21, 1978 judicial auction. No sale occurred on this date. Another judicial auction was advertised and set for August 2,1978. At this auction one of the appellants herein, Jacques Lauer bid the property in for the price of $1,250,-000.00. A deposit of $125,000.00 was put up with the Sheriff as a down payment. This deposit was jointly made by Huddle-ston, Lauer and Martinez. Each put up one-third. Each intended to own an undivided one-third interest in the complex after the sale. However, that sale was not completed as the lender who had committed to lend appellants the balance of the purchase price refused to make the loan. Another judicial auction was advertised for October 25, 1978. At this time, after receiving the necessary loan application and financial statements, Bossier agreed to make the loan in the amount of $825,-000.00. It was agreed by all parties that this loan would be a discounted loan. In connection therewith, on October 3, 1978 Huddleston executed a collateral mortgage which was pledged to secure a hand note in the amount of $894,083.03 payable to Bossier with interest at 10% from maturity, and due in 90 days. The breakdown on said note is as follows:

Cash proceeds $825,000.00
Life Insurance Premium 19,014.00
Precomputed interest 21,748.61
Loan Fee (points) 28,320.42
$894,083.03

When the note matured January 1, 1979 Huddleston was unable to pay it in its entirety. Negotiations took place to renew the note for an additional ninety days, and Bossier agreed to this provided Huddleston pay the sum of $39,195.30. This amount was paid, and a new note was executed on January 2, 1979. This note was in the amount of $905,501.05 payable to Bossier, with interest at 8% from maturity and due in ninety days. Bossier asserts, and offers proof that the breakdown on this note is as follows:

Balance due on October 3, 1978 note $894,083.03
Less Payment 39,195.40
Balance to Renew $854,887.73
Fees to renew $ 17,446.69
Precomputed interest 33,166.63
Amount of new note $905,501.05

Bossier asserts that of the $39,195.30 paid by Huddleston, $21,748.61 was interest on the October note, and $17,446.69 were fees or points charged to renew the note. As seen later in this opinion Huddleston presents a contrary argument.

This renewal note matured April 3, 1979. On April 2, 1979, Huddleston again executed a renewal note extending the due date for an additional 91 days. This third note matured on July 2, 1979. This note remained unpaid until November 12, 1979.

On November 2, 1979, Huddleston tendered payment of $877,173.39 on the April 2, 1979 note. Of this amount $23,573.37 represented interest thru November 9, 1979. Bossier rejected this payment asserting the correct payout amount to be $911,417.03.

After considerable discourse between their attorneys, Bossier accepted Huddle-ston’s payout figure as full payment. As a result of this controversy, Huddleston incurred attorneys’ fees of $9,250.00.

On December 19, 1979 Huddleston filed the instant suit against Bossier. In Count I of his petition, Huddleston alleged that the promissory note of October 3, 1978 for $894,083.03 was usurious and therefore, all charges in connection with the use of the money loaned must be returned. These charges are alleged as follows:

(a) Life Insurance Premium $19,014.00
(b) Capitalized Interest 21,748.61
(c) Capitalized Fees (points) 28,320.42
$69,083.03

Thereafter, Huddleston amended Count I to request in addition to the above, the loan renewal fee of $17,446.69 bringing the total in Count I to $86,529.72.

Count II of Huddleston’s original petition concerned Bossier’s alleged tortious conduct in refusing to accept the $877,173.39 tendered to pay the April 2, 1979 note. Huddleston prayed that all charges in-eurred for the use of the money loaned by Bossier to Huddleston pursuant to that note be returned. He also alleged that legal fees of $9,250.00 were incurred in order to prevent payment of the incorrect usurious amount demanded by Bossier.

Subsequent to the filing of the original petition, Huddleston withdrew his demand for all items of damages prayed for in Count II with the exception of the $9,250.00 attorney’s fees incurred.

From the judgment rejecting his demands Huddleston appeals alleging four specifications of error:

1) The Court erred in that, while it found as a matter of fact that the promissory note of October 3, 1978 provided for interest of ten (10%) percent post maturity interest, which exceeded the maximum conventional interest allowed by Article 2924 of the Louisiana Civil Code as it read at the time, the Court nonetheless found that usurious payments were required to make the October 3, 1978 note a usurious contract, and to create a cause of action based upon usury.
2) The Court erred in that it did not even address the issue of whether the interest paid on the October 3, 1978 note, as discount, was usurious interest under Article 2924 of the Louisiana Civil Code, because the said note was usurious on its face.
3) The Court erred in finding that the $17,466.69 “renewal fee” charged by Bossier did not constitute a usurious interest charge, forfeited under the usurious contract.
4) The Court erred in finding that the life insurance premium of $19,014.00 paid by Huddleston was not forfeited by Bossier, because of the usurious contracts.

Bossier appeals the judgment alleging two specifications of error:

1) The court erred in awarding attorney’s fees to Huddleston;
2) The court erred in failing to find that Huddleston’s claim for the forfeiture of the $17,446.69 renewal fee had per-empted.

HUDDLESTON’S SPECIFICATIONS OF ERROR 1 and 2.

Huddleston asserts that the first note dated October 3, 1978 is usurious on its face in that it provides for 10% interest after maturity and therefore all interest paid on the note should be forfeited. Hud-dleston relies on La. Civil Code Article 2924 and this Court’s decision in Grünewald v. Bartkolemew, 269 So.2d 274 (La.App. 4th Cir.1972).

At the time the first note was executed Article 2924 provided in pertinent part:

“The amount of the conventional interest cannot exceed 8% ...
Except in the cases herein provided, if any person shall pay on any contract a higher rate of interest than the above, as discount of or otherwise, the same may be sued for and recovered within two years from the time of such payment ... The owner of any promissory note, bond or other written evidence of debt for the payment of money to order or bearer or transferrable (transferable) by assignment shall have the right to collect the whole amount of such promissory note, bond or other written evidence of debt for the payment of money, notwithstanding such promissory note (,) bond or other written evidence of debt for the payment of money may include a greater rate of interest or discount than eight percent per annum; provided such obligation shall not bear more than eight per cent per annum after maturity until paid.”

In addition La.R.S. 9:3501 provides:

“Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.”

In Paulat v. Pirello, 353 So.2d 1307 (La.1977) our Supreme Court in dealing with a situation wherein interest was collected every six months on the maturity date of a discounted note without renewal of the note stated:

“Louisiana Revised Statute 9:3501 provides for the forfeiture of interest in excess of that authorized by law collected by virtue of a contract so providing.” Id. at 1308.

There is no question that the October 3rd note, as written violated the above quoted provisions of Article 2924. However the trial court found that the 10% figure was placed in the note due to a clerical error, and that that note was renewed without the payment of any interest other than the discounted interest contained therein. We agree with this conclusion, and reject Huddleston’s argument that simply because the note was usurious on its face all interest collected must be forfeited. The lower court’s conclusion is well substantiated by the evidence.

Bossier’s president, Mr. McKigney, testified he never loaned money on a note he knew to be usurious. He stated he did not realize the note called for 10% after maturity and would have changed the rate to 8% had he noticed the error.

Bossier’s notary, Mr. Herzog, who prepared the note, testified he understood the law to be 8% at that time and did not intend to place the 10% figure in the note. He surmises that his secretary inadvertently placed 10% because she also prepared a collateral mortgage at the same time, and the law allowed a real estate mortgage to bear 10% interest.

Huddleston’s reliance on Grünewald, supra, is not substantiated by the facts of that case. True our Supreme Court in Paulat, supra, agreed with the legal principle enunciated in Grünewald that “usury is determined from the face of the instrument”, the facts of that case are clearly distinguishable from this case. In Grüne-wald the plaintiff was attempting to collect the full amount of a discounted note which had no maturity date, but was payable on demand. The court stated:

“As maturity in a demand note is the date of the instrument, there is no interval of time between date and maturity; they occur at the same time.” Grüne-wald, supra at 227.

Thus the court held that since the discounted interest exceeded 8% per annum, the note violated the provisions of Article 2924.

The situation in the instant case is clearly different. There is no attempt by Bossier to collect usurious interest, nor has Huddleston paid any usurious interest. A plain reading of Article 2924 makes it clear to this Court that only persons who “shall pay” on any contract a higher rate of interest have a cause of action. This also would include a situation where the holder attempted to collect at a higher rate than allowed by law. See, Holmes v. Eisler, 289 So.2d 820 (La.App. 4th Cir.1974) where the holder filed suit to collect usurious interest. We are not unmindful of the holding in Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973) cert, denied 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53, wherein our Supreme Court ordered the forfeiture of all interest collected by plaintiff on a note which provided for usurious interest in the nature of late charges. The language of that case would seem to indicate that La.R.S. 9:3501 provides for the forfeiture of all interest. However we believe that language is tempered and further explained by the above cited quote from the later Paulat case, supra. We believe the Supreme Court intended that statute to apply to a situation where usurious interest was actually collected. This would be consistent with Thrift Funds where usurious interest was in fact collected, and additional usurious interest was being sought.

Therefore we hold that where the note became usurious on its face by virtue of a clerical error, and where the holder neither collected nor intended to collect usurious interest, nor attempted to collect usurious interest, there is no forfeiture of the legal interest collected.

This brings us to Huddleston’s third argument that the $17,446.69 fee was in fact interest paid after the maturity of the October 3rd note and is therefore usurious.

Error No. 3

The trial court properly found that the $17,446.69 payment made at the time the October 3, 1978 note was renewed did not constitute a usurious interest payment but was, in fact, a fee charged to renew that loan, and was charged in connection with the renewal note of January 2, 1979. Mr. McKigney testified that had Huddle-ston opted to pay the first note in full rather than renew the loan, the fee would not have been charged. The agreement to renew was a separate contract which arose when Huddleston decided to renew the loan for another 90 days. There is no language in the first note concerning late or renewal fees which could be camouflaged interest. See, Thrift Funds of Baton Rouge, Inc. supra. In discussing the legal relationship between successive notes, the Supreme Court in Karmgard v. Southland Mortgage Company, 341 So.2d 1109 (La.1977), stated:

“However, the interst as to note number two does not in our view arise from the same contract. While the second note immediately succeeded the first, and while the consideration for execution of the second note was a novation of the principal outstanding at conclusion of the first note, we believe that there were here separate and distinct contracts, certainly at least with respect to the capitalized interest charges on the second being untainted by the usurious interest charges collected on the first.” at p. 1115. (emphasis added)

Thus we hold that the $17,446.69 fee paid by Huddleston was not interest on the first note but was the consideration for renewing that note.

HUDDLESTON’S SPECIFICATION OF ERROR NO. 4:

In this specification of error, Huddleston discusses the types of damages available when usurious interest has been charged and paid. As we have already determined that Bossier was not liable for any usurious loan transactions to Huddleston, the measure of damages is moot. However, the trial judge in his reasons for judgment discusses the $19,014.00 life insurance premium charged by Bossier:

“The Court is of the opinion that the life insurance premium ... was in no sense a fee or interest ... paid by plaintiffs to the defendant for the loan ... but was a security requirement of the lender.”

The law is clear. The judgment of the trial court is correct. Even assuming Huddleston had prevailed in his usury claim, he would not be entitled to the return of the premiums. Gordon Finance Company v. Chambliss, 236 So.2d 533 (La. App. 4th Cir.1970); Evangeline Bank and Trust Company v. Guillory, 364 So.2d 220 (La.App. 3rd Cir.1978).

BOSSIER’S SPECIFICATION OF ERROR NO. 1:

Bossier contends the trial court erred in awarding Huddleston attorney’s fees of $9,250.00. We agree with Bossier. In his reasons for judgment, the trial judge stated:

“... the defendant’s failure to accept the principal and interest due on the April 3, 1979 promissory note was an illegal act which caused the plaintiffs to incur attorney fees in the amount of Nine Thousand Two Hundred and Fifty Dollars ($9,250.00). Absent defendant’s improper refusal to accept the amounts due on that promissory note, that is, the sum of Eight Hundred Fifty-three Thousand Six Hundred Dollars and 02/100 ($853,-600.02) plus eight per cent (8%) post-maturity interest, the plaintiffs would not have incurred the expense claimed for attorney fees in the amount of Nine Thousand Two Hundred Fifty Dollars ($9,250.00).”

The general rule is that attorney’s fees are not allowed a successful litigant in Louisiana except where authorized by statute or contract. General Motors Acceptance Corporation v. Meyers, 385 So.2d 245 (La.1980); Nassau Realty Company Inc. v. Brown, 332 So.2d 206 (La.1976).

Besides the fact that Huddleston was unsuccessful in his demands and withdrew the demand in Count II for which the attorney’s fees were incurred, there is absolutely no statutory or contractual authority upon which the trial judge could lawfully have awarded attorney’s fees.

BOSSIER’S SPECIFICATION OF ERROR NO. 2:

Since we have determined the $17,446.69 renewal fee was not usurious interest, we need not discuss whether Huddleston’s claim for forfeiture of that amount had prescribed or perempted.

For the reasons assigned above, the judgment of the trial court awarding attorney’s fees of $9,250.00 is reversed. In all other respects the judgment is affirmed.

REVERSED IN PART, AFFIRMED IN PART.

      . Although the $39,195.30 was paid around January 12, 1979, all parties agreed that the note be back dated to coincide with the maturity date of the first note.

      . We note that both opinions were authored by Justice Tate.


author: SHORTESS, Judge.

text:
    Ronald Wayne EFFERSON v. STATE of Louisiana, THROUGH the DEPARTMENT OF TRANSPORTATION & DEVELOPMENT. Dale A. LEBLANC v. STATE of Louisiana, etc. Charles W. STEVENS v. STATE of Louisiana, etc.
    Nos. 83 CA 1155 to 83 CA 1157.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 29, 1984.
    Rehearing Denied Dec. 28, 1984.
    Writs Denied March 8, 1985.

      Charles W. Borde, Jr., Denham Springs, for plaintiffs Ronald Wayne Efferson and Dale A. LeBlanc.
    A. Wayne Stewart, Denham Springs, for plaintiff Charles W. Stevens.
    Jerry L. Finley, Baton Rouge, for the defendant State of La., through Dept, of Transp. & Development.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

The State of Louisiana, through the Department of Transportation and Development (DOTD) appeals the judgments against it in these consolidated cases. Ronald Wayne Efferson, Dale A. LeBlanc, and Charles W. Stevens were injured when a pickup truck driven by Stevens left Louisiana Highway 1032 in Denham Springs, Louisiana, and struck two trees. Efferson and LeBlanc brought suit against Stevens and the State of Louisiana through the Department of Development and Transportation (DOTD). Stevens brought suit against DOTD. Efferson and LeBlanc settled with Stevens and his insurer and executed releases which reserved all rights against any other parties which might be liable. After trial, the trial court found the DOTD solely responsible and awarded judgment in the principal amounts of $321,-981.11 for Efferson, $793,908.81 for Le-Blanc, and $44,300.00 for. Stevens. The DOTD has suspensively appealed these judgments.

The undisputed facts are as follows:

On October 14, 1980, at approximately 9:00 p.m., plaintiffs were involved in an accident on Louisiana 1032, also known as the River Road, located in Denham Springs. The accident involved only the pickup truck driven by Stevens and owned by his father. As the vehicle traveled south, it failed to negotiate a left curve in the road, ran off the road, struck one tree in the outside of the curve with its right rear fender, traveled a short distance farther, and struck another tree head-on. The truck was demolished and serious injuries were sustained by all three plaintiffs. It was established at trial that Stevens had consumed some alcohol in the form of hard liquor and beer during the late afternoon and evening before the accident; that he had also eaten a meal earlier in the evening; that the approach to the curve had been marked by a reverse curve sign and a 15 mile per hour advisory 333 feet before the beginning of the curve; that a 40 mile per hour regulatory sign had been placed between the curve advisory and the curve, approximately 200 feet from the curve; that a driver’s view of the curve advisory on approach beyond 100 feet may have been somewhat obscured by tree limbs; that there were no skidmarks on the roadway; that there was an undetermined number of small black and white curve delineator signs erected on the shoulder both just before and at the curve.

The trial court found the DOTD liable to the plaintiffs under both theories of negligence and strict liability, finding that the State was negligent in that it (1) installed an improper curve sign for this curve; (2) placed the curve sign too close to the curve itself; (3) placed a 40 miles per hour speed limit sign between the curve and speed advisory signs and the curve itself; (4) improperly maintained the curve delineation markers in the curve itself; (5) installed the wrong type of delineation markers in the curve; (6) allowed trees to grow and remain too close to the paved portion of the highway on the outside of the curve; (7) improperly maintained the shoulder of the roadways in the accident area “allowing a drop-off to exist in excess of one inch”; and (8) failed to remove tree limbs which obscured the curve advisory sign. The court stated that it felt that “all of these acts of negligence of the defendant were the sole and proximate cause of the accident which is the subject of this lawsuit.” The court went on to set up the elements of the plaintiff's burden of proof under the strict liability theory of La.C.C. art. 2317 and concluded:

This court feels that the plaintiffs have met this burden of proof. The highway was in the care and custody of the defendant, State of Louisiana, through the Department of Transportation and Development, as stated herein above, this Court found that the roadway, shoulders, signs and road right of way were defective, this Court feels that these defects occassioned (sic) an unreasonable risk of injury and that these defects were the cause-in-fact of the plaintiffs’ injuries and damages, all as concluded by the plaintiffs’ expert witnesses also.

The court also stated specifically that it “does not find any negligence or victim fault on behalf of any of the plaintiffs in this case,” stating that even if it found such, the DOTD would still be strictly liable since the plaintiff fault would not amount to harms caused by (1) “fault of the victim,” (2) ‘sole’ fault of third party,” or (3) “irresistable force.”

After reviewing the entire record, we find that the facts in this case lend themselves more readily to a discussion of the condition of this curve generally than to a discussion of each particular conclusion of the trial court or each assignment of error.

We note initially that the trial court’s enumerated findings were used to support a finding of negligence. However, nowhere in the record was it shown that the DOTD knew or should have known of these “defects,” nor was any act or omission imputable to the DOTD shown on the part of any person. Liability based upon negligence is imposed when the DOTD is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time. Sini-tiere v. Lavergne, 391 So.2d 821 (La.1980). However, in the interest of justice, we will consider these factual findings as supporting the trial court’s finding of strict liability on the part of the State.

As Stevens approached the curve heading south he first encountered the reverse curve sign and the 15 mile per hour speed advisory. He stated at trial that he saw neither sign, without giving any reason for this failure. Photographs introduced at trial show that the curve advisory sign (which was posted just above the speed advisory) may have been partially obscured by tree limbs. However, Duaine Evans, plaintiffs’ expert witness, testified that he estimated that both signs could be seen from a distance of approximately 100 feet upon approach. The fact that Stevens did not see the sign, even though it was visible for 100 feet shows that it did not play any causative role in this accident. Only if he had seen it and acted upon its message could it be considered a cause in fact of this accident.

Further, the plaintiffs’ contention that the limbs obscuring the curve advisory sign lead in some way to State liability is without merit. Stevens was familiar with the road. He had gone to school in the area for twelve years. He denied driving the road often but admitted he had done so a few times and had been in cars when others had done so. He had passed the curve going north about fifteen minutes before the accident, which occurred as he was proceeding south and returning to his home. He knew the curve was there. The trial court was clearly wrong in finding that limbs partially obscuring the curve sign created an unreasonably dangerous condition which led to plaintiffs’ injuries.

We also find that the trial court was clearly wrong in basing its finding of unreasonable risk in part upon the distance the curve sign was from the curve. The only evidence in the record regarding the appropriate distance from the curve for the sign to be placed was testimony regarding the standards from the Uniform Manual of Traffic Control Devices, stating that the sign should be 250 feet from the curve in urban areas and 750 feet from the curve in rural areas. However, Dr. Walton testified that 333 feet from the curve was a proper placement distance for the sign in a 40 miles per hour speed zone, given that the 250 feet standard was calculated for a 30 miles per hour zone. This curve was within the city limits of Denham Springs and near its business district, and Stevens knew where it was. The distance this sign was placed from the curve played no part in this accident.

The next sign that Stevens encountered as he approached the curve was a 40 mile per hour regulatory sign placed approximately 200 feet before the curve. Stevens testified he saw this sign and that it led him to believe that he could travel safely at a speed of 40 miles per hour. He maintains that he traveled 35 miles per hour and was forced off the road in the curve due to centrifugal force. The conclusion he advocates is that it is impossible for a vehicle to make the curve at 35 to 40 miles per hour, and that therefore the placement of that sign indicating 40 miles per hour to be a safe speed made the curve unreasonably dangerous.

The trial court agreed with Stevens. This conclusion was clear error.

At trial, Evans stated that in his opinion a person could not travel the curve safely at 35 to 40 miles per hour. He based this upon the ball-bank tests he had done which indicated that 25 miles per hour was the fastest the curve should be signed. He even went so far as to state that he would not attempt to test it at 40 miles per hour. He stated, “I did drive it at 35, but of course, I was under test conditions, I knew what I was approaching and I was in the daytime_” (Emphasis added.) The tri-

al court apparently relied upon this testimony in concluding that the curve could not be safely negotiated at 35 to 40 miles per hour. After reviewing the entire record, we find that this reliance constituted clear error in several respects.

First, Stevens had driven through the curve in a northerly direction just minutes before the accident. It was not the first time he had driven around this curve, and he admitted that he had been a passenger in vehicles traveling this curve before. He further admitted in his deposition that he “knew it was ahead.” The trial court was manifestly erroneous in relying upon Evans’ testimony to support a finding that Stevens could not have negotiated the curve. Evans’ testimony supported only an inference that the curve might be dangerous for the driver unfamiliar with the road. Since Stevens was familiar with the road, Evans’ testimony does not support a finding that the curve could not be handled by Stevens.

Furthermore, Evans was the only person (other than the three plaintiffs) at trial who thought the curve could not be negotiated at 35 miles per hour. Ned Walton, defendant’s expert, stated that he drove it safely at 40 miles per hour and was of the opinion that a driver could maintain control of his car if he left the road at the point the plaintiffs’ truck did going a speed of 35 or 40 miles per hour. Maurice Jordan, the State’s maintenance engineer, stated that he had traveled around the curve safely going 45 miles per hour. Dale Mills, the officer who investigated the accident, stated that he had driven the curve at 35 to 40 miles per hour with no trouble at all. Joe Sanchez, Mills’ partner, also noted that 35 to 40 miles per hour was a safe speed.

In addition, Evans appears to have based his conclusion upon the ball-bank tests he conducted. However, Walton was uncon-tradicted when he testified, in his capacity as an expert, that the ball-bank test is not used to indicate a safe road speed from an engineering standpoint but merely indicates the maximum speed a driver may take the road without experiencing an uncomfortable degree of centrifugal pull within the passenger compartment of his car. He stated that the curve could be safely driven at 35 miles per hour, a speed faster than that which might be indicated by a ball-bank test as the comfortable speed.

Our second reason for finding the trial court’s reliance upon Evans’ testimony to be clear error is that it failed to realize that Evans further qualified his testimony, stating that he was able to drive the curve safely at 35 miles per hour partly because he was driving during the daytime. He also testified that regardless of the presence of the 40 miles per hour sign, “weather and traffic would be the two factors that would force [Stevens] to not travel at that speed....” The inference supported is that the reasonably prudent driver who knows the curve is ahead and is traveling in less than optimal weather conditions (which we deem must include the darkness of nightfall) slows to a speed below the posted legal limit. Stevens should have so adjusted his speed if the fact that he was driving at night was going to give him a problem negotiating the curve.

We find, therefore, that the trial court was clearly wrong in concluding the curve could not be handled by Stevens at 35 miles per hour. The great weight of the evidence was that it could be driven at that speed; further, Evans so qualified his testimony that it did not support the finding of an unreasonable risk of harm to Stevens who was aware that the curve was ahead.

The trial court found that the position, maintenance, and types of curve delinea-tors present at the accident site contributed to the unreasonably dangerous condition of the curve. We note that there was no evidence presented as to how many curve delineators were in place, or their condition, before the accident. All of the testimony was based upon the observations of the witnesses that some of the delineators had been knocked down, but it was never established when those delineators had been destroyed.

The trial court found that the road was structurally defective in that it had (1) a one-inch shoulder drop from the pavement, (2) an excessive shoulder slope from the pavement to a point approximately eight to nine feet from the pavement to the trees, and (3) trees that were too close to the road. The only testimony regarding any difference in the height of the pavement and the shoulder was given by Evans. He stated that he found a three-inch to five-inch drop-off from the pavement to the shoulder; however, he stated that the spots he marked were clearly well beyond any point in the road which had anything to do with this accident. There was no other evidence pointing to any difference in the level of the shoulder and the pavement whatsoever, and Officer Mills testified that upon checking for some discrepancy he found none. We further note that the photographs entered at trial show a perfectly level pavement and shoulder at the point where the truck left the road. The trial court was clearly wrong in this conclusion.

Upon examining all the evidence, however, we find that we cannot say the trial court was clearly wrong in concluding that the combination of the proximity of the trees to the road with the severe slope of the outer part of the shoulder constituted an unreasonably dangerous condition in this roadway. The plaintiffs all testified that it was only shortly after the truck left the road that it hit the first tree. The experts also testified that the drop on the outside of the shoulder was severe, up to eleven inches at some points, and that this drop occurred right at the base of the trees.

One may recover against the State on the basis of strict liability under La.C.C. art. 2817 by showing (1) that the thing which caused the damage was in the care or custody of the defendant, (2) that it had a vice or defect, i.e., some condition which occasioned an unreasonable risk of injury, and (3) that the injury was caused by the defect. Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980). This shoulder had (1) a severe outer slope which an inadvertent driver leaving the roadway might have significant trouble with when attempting to return to the roadway, and (2) trees which were approximately nine feet from the paved portion of the road and posed a formidable obstacle for the inadvertent driver who found himself bearing down upon them. These shoulder conditions were defects which created an unreasonable risk of harm to straying motorists.

The DOTD has a duty to see that the highways are reasonably safe for persons exercising ordinary care and reasonable prudence. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Everett v. Louisiana Department of Transportation and Development, 424 So.2d 336 (La.App. 1st Cir.1982). Included within this duty is the maintenance of the shoulders of the highways in a reasonably safe condition. Rue v. State Department of Highways, 372 So.2d 1197 (La.1979).

The court in Sinitiere stated that the DOTD is not a guarantor of the safety of travelers, but owes a duty under traditional negligence theory to keep the highways and shoulders reasonably safe for non-negligent motorists. Before this duty can be applied to the facts in this case, however, two questions must be answered:

(1) Does the duty as formulated under Sin-itiere, a case decided under traditional negligence theory, apply to this case being decided under La.C.C. art. 2317 strict liability; and
(2) To whom is this duty owed?

APPLICATION OF THE SINITIERE STANDARD IN STRICT LIABILITY.

The court in Sinitiere, 391 So.2d at 825, noted in footnote 3 that it was not deciding the applicability of La.C.C. art. 2317 to the facts it faced. However, as this court noted in Buchanan v. Tangipa-hoa Parish Police Jury, 426 So.2d 720, 724 (La.App. 1st Cir.1983):

In Kent [v. Gulf States Utilities Co., 418 So.2d 493 (La.1982)], the court observed that the only difference between the strict liability and negligence theories of recovery was the element of the defendant’s scienter. Under the negligence rule, it must be shown that defendants either knew or should have known of the risk, whereas under strict liability the claimant is relieved only of proving that the defendant knew or should have known of the risk. In either case, the claimant must still prove an unreasonable risk of harm that resulted in damage. While the basis for determining the existence of the duty is different between strict liability and negligence, the duty which arises is the same.

(Underscoring added.)

We find, therefore, that we have no trouble applying the duty imposed in Sinitiere in a strict liability case.

THE AMBIT OF THE DUTY

Although the statements of the duty in Sinitiere do not clearly state whether the duty is owed only to the “non-negligent” motorist or to some larger group of potential plaintiffs, that court’s handling of the duty owed the negligent driver Lavergne appears to answer our question. After discussing the development of the duty through prior jurisprudence the court stated that “the plaintiff’s decedents in the Sinitiere-Henry suit, as well as Lavergne, are within the ambit of the Department’s duty to maintain reasonably safe highway shoulders.” (Emphasis added.) After discussing the negligence of the DOTD, the court held that “the Department must also be said to have breached its duty to Mr. Lavergne since he was within the scope of the Department’s duty.” Sinitiere, 391 So.2d at 825.

We conclude that when the Sinitiere court wrote that the DOTD “owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists” (emphasis added) it did not mean to restrict the duty as being owed only to the non-negligent motorist. Therefore, the DOTD in this case breached its duty to Stevens.

However, we have yet to fully answer the question of the cause of this accident. Indeed, the shoulder sloping into the trees did play a causal role in the injuries received by all three plaintiffs. However, our treatment of the trial court’s reasons requires us to delve farther into the record to determine why this accident happened. STEVENS’ NEGLIGENCE

The trial court was clearly wrong in failing to take into account the copious evidence which showed that Stevens was negligent in several respects in his operation of the vehicle. More particularly, Stevens was negligent in that he failed to see the 15 miles per hour advisory sign, even though it was visible for a distance of at least 100 feet.

The evidence clearly established also that Stevens had been drinking earlier in the evening. The only testimony as to the quantity of alcohol consumed by Stevens was the self-serving testimony of the three plaintiffs that he consumed approximately two ounces of liquor and one beer. However, a blood test taken at the hospital several hours after the accident showed his blood-alcohol level to be .06. Dr. James Freeman was accepted as an expert in clinical pathology, and on the effects of alcohol on human conduct. His uncontradicted testimony was that, given a normal rate of breakdown for a man of Stevens’ weight, at the time of the accident his blood-alcohol level would have been .092. Dr. Freeman further testified that this alcohol content would have impaired his physical function somewhat.

We also find that the record supports the conclusion that Stevens was driving at an excessive speed when entering the curve. The extensive damage which occurred to the vehicle indicated a speed of greater than 40 miles per hour when it left the highway. The truck traveled over 87 feet before hitting the first tree with its right rear fender, then another 65 feet before hitting the second tree head-on. The photographs introduced at trial show the front end of the truck to be demolished. After making these observations, Officer Mills concluded and indicated in his accident report that Stevens had been speeding.

That Stevens’ driving was the primary cause of this accident, and not any defective condition of the roadway, is further supported by the fact that Efferson stated to Officer Mills at the scene that Stevens “lost control” of the truck. Furthermore, none of the three plaintiffs remembered anything unusual happening before the truck left the shoulder and struck the tree. When we consider plaintiffs’ testimony with Walton’s, that the person inside a vehicle which was leaving the road due to centrifugal force would feel “seat of the pants friction” inside the truck long before the centrifugal force would be sufficient to move the truck off the road, we conclude that centrifugal force actually had nothing to do with this truck leaving the road. Both Officer Mills’ and Stevens’ testimony established that the truck left the road just past the last driveway at the start of the curve. At most, the fault attributable to the State was the severe slope of the shoulder and proximity of the trees, conditions which may not have permitted a driver to steer back onto the highway easily once the vehicle left the pavement. However, the primary cause of this accident was Stevens’ driving at an excessive rate of speed and his failure to see the warning signs erected by DOTD. Dr. Freeman’s testimony indicates that Stevens’ perception was impaired by alcohol. This, too, was probably a contributing cause of the accident.

In conclusion, we find that Stevens was contributorily negligent in causing his own damages, and as to plaintiffs Efferson and LeBlanc, was a third party concurrently negligent with the DOTD. His negligent fault contributed significantly to, but was not the sole cause of this accident, which was also significantly, but not solely, caused by some fault on the part of the DOTD for which it is strictly liable.

APPORTIONMENT OF LIABILITY UNDER COMPARATIVE NEGLIGENCE

La.C.C. art. 2323 was amended by Acts 1979, No. 431, § 1, to introduce the concept of comparative negligence into our law. It provides for the apportionment of fault between the defendant and the plaintiff and reduction of the plaintiff’s damage award in proportion to that apportionment “when contributory negligence is applicable to a claim for damages ...” In Dorry v. LaFleur, 399 So.2d 559 (La.1981), the court found that where the activity for which the defendant was strictly liable was neither ultrahazardous nor unnatural to the locality, and produced no income to the defendant, that there was no policy reason to deny the defendant the defense of contributory negligence. Dorry, 399 So.2d at 561. In Morgan v. Hartford Accident and Indemnity Company, 402 So.2d 640 (La.1981), the court noted at page 643, note 3, that “[t]he question of whether contributory negligence can serve as a defense in a strict liability case has recently been considered by this Court in Dorry ... and answered affirmatively in a plurality opinion-” After considering this jurisprudence as well as the similar jurisprudence of this circuit, we conclude that contributory negligence is available generally as a defense in a strict liability case, subject to the specific exceptions created in Dorry and others which may be created by the courts in the future.

Initially, we note that the trial court found no negligence on the part of Stevens. Whether the plaintiff was con-tributorily negligent presents a question of law when it is a part of the inquiry as to the extent of a defendant’s duty under a duty/risk analysis. Vamado v. Continental Ins. Co., 446 So.2d 1343 (La.App. 1st Cir.1984). If the scope of the duty owed by defendant does not wholly embrace or exclude protection of the plaintiff from the risk of harm caused in part by his own negligence, then the question of apportionment of fault under our comparative scheme is properly presented. See Johnson, Comparative Negligence and the Duty-Risk Analysis, 40 La.L.Rev. 319, 332 (1980). However, the question of the percentage of fault to be allocated a party under comparative negligence is a question of fact. See e.g., La.C.C.P. art. 1812(C). The appellate court has review of facts in Louisiana. La. Const, art. V, § 10(B); La. C.C.P. art. 2164. The court should, in the interest of judicial economy, evaluate all the evidence to make a determination of fact based upon the complete record before it rather than remand to the trial court. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). Therefore, after reviewing the entire record, we find that we are able to justly determine the percentages of fault attributable to the DOTD and Stevens. Borrowing from the appropriate standard for appellate review of damages, we note that since the trial court clearly found the State was 100% at fault in this case, and mindful of the great degree of negligence we find on the part of the plaintiff Stevens, we reduce the percentage of fault attributable to the State to the highest degree of fault a reasonable finder of fact could have found, and raise the percentage of fault attributable to the plaintiff Stevens to the lowest percentage a reasonable finder of fact could have found. We find that the appropriate percentages are 20% fault on the part of the State and 80% fault on the part of Stevens. His claim for damages is not thereby defeated, but is reduced in proportion to his degree of negligence.

THIRD PARTY FAULT OF STEVENS AS IT AFFECTS THE CLAIMS OF EFFER-SON AND LEBLANC

The latest definitive pronouncement by the Louisiana Supreme Court on the applicability of the defense of third party fault to a strict liability claim is found in Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1979), which states that “[T]he fault of a ‘single person’ which exonerates a person from his own obligation importing strict liability as imposed by Articles 2317, 2321 and 2322 is that which is the sole cause of the damage.” Olsen, 365 So.2d at 1293. However, our Civil Code, after the legislative adoption of comparative negligence in Acts 1979, No. 431, requires our consideration of both the fault of Stevens and the DOTD in apportioning the damages due Efferson and LeBIanc.

Our inquiry as to the application of third-party fault under a comparative negligence scheme begins not with article 2323 but with article 2324. “Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido_” As to plaintiffs Effer-son and LeBIanc, this sentence of article 2324 clearly makes Stevens and the DOTD solidary obligors for the damage those two plaintiffs incurred.

The second part of that paragraph provides a narrow exception to the general rules of solidary liability which have been invoked by the use in the article of the words “in solido.” That exception is not applicable to plaintiffs Efferson and Le-BIanc since, as judgment creditors, neither has any degree of negligence whatsoever under our particular facts.

Referring to the Code articles on solidary liability, we find that under article 2091 debtors obliged to do the same thing are obligated in solido and each may be compelled for the whole. Indeed, this is what Efferson and LeBIanc have attempted to do against the DOTD as they have released Stevens. However, under article 2100, a creditor who consents to division of the debt with regard to one of the co-debtors still has an action in solido against the other co-debtors, but must first deduct the part of the debtor whom he has discharged. Billeaudeau v. Lemoine, 386 So.2d 1359 (La.1980); Canter v. Koehring Co., 283 So.2d 716 (La.1973). These cases, decided before La.Acts 1979, No. 431, held that release of one of the solidarily bound joint tort-feasors was considered a division of the debt, and required that a deduction be made of the released tort-feasor’s share from the obligation owed by the others. Article 2103 determined that his “share” under 2100 meant his virile, or equal, portion. Billeaudeau, 386 So.2d at 1361; Canter, 283 So.2d at 727-8. However, article 2103 was amended with the adoption of comparative negligence specifically to reapportion liability among solidary tort-feasors from virile shares based upon equal division among the debtors to a division based upon the “proportion [of] each debtor’s fault.” Therefore, we apply the Bil-leaudeau/Canter analysis to articles 2100 and 2103 as amended and find that the effect of releasing Stevens is to discharge the liability of the DOTD, the remaining solidary co-debtor, to the degree of Stevens’ fault. We therefore reduce the damage awards to Efferson and LeBlanc against the DOTD by 80%, the proportion of fault attributable to Stevens.

DAMAGES

DOTD complains that the awards given plaintiffs were excessive. Plaintiffs have not answered the appeal to complain of inadequacy.

A. As to Dale LeBlanc, the trial court’s reasons provided:

I find that Mr. LeBlanc suffered severe and permanent injuries as a result of this accident, including, but not limited to, a broken neck, rendering him totally disabled based upon his education, experience, and inability to read and write. I do find that he suffered extreme pain and discomfort from the date of this accident until the date of this trial and I find he will continue to suffer pain and discomfort as a result of his injuries.
Lost wages from the date of accident
until trial date. $ 14,817.00
Loss of future wages. $247,937.00
Hospital, doctor and related bills_ $ 11,154.81
Injuries, past pain and suffering_ $400,000.00
Scars and Disfigurement. $ 20,000.00
Future pain and suffering. $100,000,00
TOTAL. $793,908.81

Our examination of the record confirms the very serious and permanent nature of LeBlanc’s injuries. Dr. Patricio Mujica estimated his permanent disability at 35-40% of the body as a whole and that it was probably progressive. Dr. Mujica felt that LeBlanc was physically incapable of little other than “intellectual work;” however, LeBlanc has only a minimal education. The trial court did not abuse its great discretion in its award to LeBlanc.

B. As to Ronald Wayne Efferson, the trial court’s reasons provided:

I find that Mr. Efferson suffered severe and permanent injuries as a result of this accident, including, but not limited to, fractured femora in both legs, broken left ankle, broken left arm and lacerations. I find that he suffered severe pain and discomfort due to his many broken bones, hospital stays and surgeries. I find that he has been disabled to work in the past since the accident and will continue to suffer extreme pain and discomfort and will be disabled in the future in the range of 10%-20% in each leg, causing him to miss work on many future occasions. In addition, Mr. Efferson will have to undergo future surgery for the removal of a pin in his hip and will incur expenses and pain and suffering.
Lost wages from the date of accident
until trial date. $ 4,678.40
Loss of future wages. $ 50,000.00
Hospital, doctors and related
expenses . $ 4,302.71
Injuries, past pain and suffering_ $200,000.00
Future medical expenses .. $ 3,000.00
Scars and disfigurement. $ 10,000.00
Future pain and suffering. $ 50,000.00
TOTAL. $321,981.11

Efferson was also seriously and permanently injured in this accident. Dr. Andrew Kucharchuk estimated a 5-10% disability in both legs, probably progressive as he ages, resulting from calcification caused by the insertion of rods in each hip. He was of the opinion that prolonged sitting would cause a great deal of discomfort because of the calcium deposits. He also felt that the rod which still remains in Efferson’s right leg should be removed soon.

The trial court awarded Effer-son $50,000.00 for loss of future wages. There is no evidence in the record that he will ever be disabled from pursuing gainful employment. He is a well motivated, hard working individual who has returned to work and is able to put in a day’s work without significant problems of any kind. We must reduce the award to Efferson by $50,000.00. We also note that the overall award was very generous, but we are not prepared to find that it was an abuse of the trial court’s great discretion.

C. As to Charles W. Stevens, the trial court’s reasons provided:

I find that Mr. Stevens suffered severe injuries, pain and suffering and should be awarded the following damages:

Specials, doctors, hospital and related bills. $ 4,300.00
General damages, pain and suffering and injuries. $40,000.00
TOTAL. $44,300.00

Stevens sustained a comminuted fracture of the shaft of the right ulna which required surgery and internal fixation with a metal plate and screws. The hardware remains in place and causes problems. He also suffered a fracture to the medial malleolus of his left ankle. Dr. Richard Bolton, an orthopedic surgeon, treated him for these fractures. Bolton estimated the healing period for Stevens’ arm to be three to four months and two months for the ankle. If the plate is removed, Bolton testified he would be hospitalized for two days and Bolton’s fee would be $250.00. Bolton did not see Stevens after October 11, 1980.

Dr. Millard Byrd, Jr., also treated Stevens in the hospital for a lacerated liver which he felt healed within three to four weeks without any problems. Dr. Byrd did not see him after he left the hospital.

The award of general damages is extremely generous, but we will not say it was an abuse of the trial court’s great discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

DECREE

For the reasons set forth herein, the judgments of the trial court against the DOTD are amended, awarding the amounts as follows:

1. To Dale A. LeBlanc, the sum of $158,781.76, together with legal interest thereon from date of judicial demand until paid.

2. To Ronald Wayne Efferson, the sum of $64,396.22, together with legal interest thereon from date of judicial demand until paid.

3. To Charles W. Stevens, the sum of $8,860.00, together with legal interest thereon from date of judicial demand until paid.

All costs of these proceedings are taxed 80% to Stevens and 20% to the DOTD.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED.

      . These photographs cannot be relied upon as proof that the limbs obscured Stevens’ view of the curve advisory sign. Counsel for all parties stipulated at the start of trial that although all the photos to be entered accurately depicted the scene, they "were not taken to show ... necessarily what a driver would see.”

      . The court accepted plaintiffs’ allegation that the reverse curve sign was an improper sign and that the reverse turn sign should have been erected. It also accepted Evans’ testimony that according to his tests the proper speed advisory sign would have been one saying 25 miles per hour rather than 15 miles per hour. Despite the fact that this latter point is favorable to the State in that it shows an overabundance of caution, the fact that Stevens failed to the see these signs, even though they were visible, obviates the need for us to discuss with particularity these findings of the court.

      . If Stevens’ testimony that he did not see the sign was incorrect, then his conduct was substandard in seeing the sign and ignoring it in favor of the 40 miles per hour sign. The reasonably prudent man faced with a curve advisory and speed advisory sign followed shortly by a 40 miles per hour sign before he encounters the curve does not ignore the former speed advisory and assume that he can take the curve at 40 miles per hour. We cannot accept Evans' statement that a driver would ignore the advisory because "it’s a lot smaller than the regulatory sign, which means it has less significance, generally speaking.”

      . See, e.g., Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720 (La.App. 1st Cir.1983) and cases cited therein. The excellent discussion in Buchanan spotlights the policy reason mitigating against allowing contributory negligence to be synonymous with victim fault as a defense in strict liability cases. Strict liability, at its inception at the common law, was a means of distributing the risk of injury for ultrahazardous activities among those who conducted the activity, and were (not coincidentally) the ones most able to pay. The contributory negligence of a plaintiff, however, was held to justify barring his recovery. To allow contributory negligence to be applied in defense by a strictly liable defendant undermined the strong social policy behind strict liability, especially in the usual case where there was undeniably some negligence on the part of plaintiff, but not enough to justify barring recovery. The comparative negligence scheme, of course, sidesteps this problem, barring recovery by the plaintiff only to the extent of the damage he caused himself.

      . See Narcise v. III. Cent. Gulf'Railroad Co., 427 So.2d 1192, 1196 (La.1983), at note 5, where the Supreme Court stated "[t]he legislative adoption of a comparative fault system ... requires that the fault of all parties be quantified_”

      . The plaintiff Stevens was made a third party defendant in these suits as per La.C.C. art. 2103.

      . This analysis and result is consistent with that to be reached under the revised (1984) Civil Code articles on Obligations. See article 1803 and Official Revision Comment (b); article 1804.


author: ALFORD, Judge.

text:
    Jacqueline J. ALLEN v. Raymond ALLEN.
    No. 83 CA 1376.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Rehearing Denied Feb. 21, 1985.

      Leo J. Berggreen, Baton Rouge, for Jacqueline J. Allen.
    Raymond L. Simmons, Baton Rouge, for Raymond Allen.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment on a rule for child support ordering defendant-appellant, Raymond Allen, to pay sixty dollars ($60.00) per week to plaintiff-appellee, Jacqueline Allen, for the support of their minor child, Caezara Lynette Allen. The parties stipulated that Mrs. Allen was to have custody of the child with visitation privileges reserved in favor of Mr. Allen.

We are aware of the great discretion afforded trial courts in fixing child support awards. Ducote v. Ducote, 339 So.2d 835 (La.1976). However, as noted in Nelms v. Nelms, 413 So.2d 1341, 1342 (La. App. 1st Cir.1982), writ denied, 415 So.2d 944 (La.1982),

The amount of child support is determined by the wants of the child and the circumstances of the parent who is to pay. La.C.C. Arts. 227,231. Therefore, in making a determination of child support, the trial court must consider the totality of all pertinent circumstances. Marcus v. Burnett, 282 So.2d 122 (La. 1973); Prudhomme, supra; Moss v. Moss, 379 So.2d 1206 (La.App. 3d Cir. 1980); LaBalle v. LaBalle, 352 So.2d 330 (La.App. 4th Cir.1977).

After a thorough review and evaluation of the record, we are convinced that the trial court abused its much discretion in this matter.

The most pertinent circumstance in our opinion is the fact that at the time this rule was heard, Mrs. Allen was employed while Mr. Allen was not. The evidence presented shows that Mr. Allen is a painter whose last contract job ended prior to the instant rule. Mr. Allen had been earning approximately $1,000.00 per month net for the preceding year, however, without any future contracts, he could project a monthly income of only $500.00 for the next year. Mrs. Allen, on the other hand, has a net monthly income of $708.82.

Another pertinent circumstance in this case is the fact that Mrs. Allen was not actually incurring the rent and utilities expenses she listed. She testified that she was living with a relative but looking for an apartment. The estimates she gave as to these items were expenses she expected to incur at a future date.

We are of the opinion that the judgment of the trial court is excessive to the point of being an abuse of discretion. In accordance with the view expressed herein, we reduce the child support award to thirty dollars ($30.00) per week, to be paid under the schedule as set out by the trial court. In all other respects, the judgment of the trial court is affirmed. We note, however, that should the circumstances of these parties change in the future, this award is subject to modification.

AFFIRMED AS REDUCED.

      . Prudhomme V. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir.1980), writ denied, 383 So.2d 782.