author: BARRY, Judge.

text:
    Wilbur SENTILLES and Stephen Sentilles v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. CA-0899.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Writ Denied Feb. 10, 1984.

      John D. Lambert, Jr., Lambert & Lambert, New Orleans, for plaintiffs-appellants.
    Adrianne L. Baumgartner, Porteous, Hainkel, Johnson & Sarpy, Covington, for defendant-appellee.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   BARRY, Judge.

Both parties appeal a partial summary judgment which prohibited “stacking” uninsured motorist policies and voided plaintiff’s selection of minimum uninsured motorist coverage.

On June 5, 1980, Stephen Sentilles was seriously injured when struck by a car while attempting to cross a street in Ft. Walton Beach, Florida. The vehicle was insured by Government Employees Ins. Co. with liability limits of $15,000. Alleging damages greatly in excess of that coverage, Stephen and his father, Wilbur Sen-tilles, sued State Farm Mutual Automobile Ins. Co., the father’s uninsured/underin-sured motorist carrier.

Plaintiffs alleged that at the time of the accident State Farm had in effect three insurance policies, each of which entitled plaintiffs to recover $5,000 U.M. policy limits. Subsequently the petition was amended to allege the coverage under each policy was $100,000 because the U.M. coverage forms executed by Mr. Sentilles in 1976 and 1980 were invalid and inapplicable when the accident occurred.

State Farm moved for partial summary judgment, contending plaintiffs are prohibited from stacking U.M. coverage and that the forms signed by Mr. Sentilles limited U.M. coverage to $5,000 under each policy. After a hearing the trial court ruled:

Plaintiffs may not stack the three State Farm policies; the U.M. selection forms signed in 1976 were void thereby causing each policy to have U.M. limits of $100,-000/$300,000, the same as the liability limits.

State Farm appeals as to the selection forms and plaintiffs appeal the stacking prohibition.

Mr. Sentilles has been insured by State Farm since October, 1972 when he covered a Buick and a Chrysler. That insurance continued until the cars were replaced with a Cadillac and a Mercury. On April 26, 1976, Mr. Sentilles signed two “Louisiana Uninsured Motor Vehicle Coverage” forms which declared:

In keeping with the provisions of the laws of the State of Louisiana I hereby request that the insurer designated below proceed as indicated as respects the policy of bodily injury liability insurance on the described motor vehicle, its replacements, and any subsequent transfer, reinstatement or renewal of such policy or policies to be issued. I understand that had I so desired it would have been possible for me to have purchased limits of liability for Uninsured Motor Vehicle Coverage equal to the Bodily Injury Liability limits designated on my application for insurance.

Mr. Sentilles marked the box on both forms designated “OPTION TO ELECT LOWER LIMITS OF LIABILITY FOR UNINSURED MOTOR VEHICLE COVERAGE. Provide Uninsured Motor Vehicle coverage under such policy with liability limits of 5,000/$10,000.” It was stipulated that neither form was given back to Mr. Sentilles to be attached to the policies, nor were they attached to any subsequent policies (renewals, substitute or otherwise) issued to him by State Farm.

On January 24, 1977 Mr. Sentilles substituted a Cadillac for the Buick with the same coverage. On August 30, 1979, a Pontiac was substituted for the Cadillac with the same coverage plus collision coverage. Similarly, on February 1, 1977 a Mercury was substituted for the Chrysler with the same coverage. Mr. Sentilles never signed another U.M. selection form for any of the policy renewals or replacements.

On May 23, 1980 State Farm issued another policy to Mr. Sentilles for a Pontiac, his third vehicle. He signed a U.M. selection form identical to the other two forms which designated limits of $5,000/$10,000.

Thus, on the date of Stephen’s accident, State Farm had three insurance policies on three automobiles owned by Mr. Sentilles. The “Declaration” page of each policy specified liability limits of $100,000/$300,000 and U.M. limits of $5,000/$10,000 covering Wilbur Sentilles and “any resident of the same household.” It is undisputed that Stephen Sentilles lived with his father and was insured.

VALIDITY OF U.M. SELECTION FORMS

Plaintiff contends that U.M. limits of $100,000/$300,000 were statutorily read into the first two policies by operation of LSA-R.S. 22:1406(D), the portion of the Louisiana Insurance Code on U.M. coverage.

At all pertinent times R.S. 22:1406(D) specified U.M. coverage is to be provided in not less than the amounts of bodily injury liability coverage, unless the insured rejects such coverage or selects lower limits. The statutory requirements for a waiver or lower limits have been amended several times, notably in 1977. The two U.M. selection forms at issue were signed by Mr. Sentilles on April 26, 1976 when R.S. 22:1406(D) provided:

(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.... (Emphasis added)

LSA-R.S. 22:628, a general provision of our Insurance Code, in effect then and now, specifies:

“No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless in writing and made part of the policy.” (Emphasis supplied.)

While the version of R.S. 22:1406(D)(1)(a) in effect when plaintiff signed the U.M. selection forms did not specifically require that such selection be both in writing and attached to the policy, the writing and attachment requirements of R.S. 22:628 were held applicable to R.S. 22:1406(D)(1)(a) in A.I.U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981). Our Supreme Court, after a thorough analysis of the- history of R.S. 22:1406(D), declared:

[Cjlearly, prior to September 9, 1977, the effective date of Act 438 of 1977, any selection of lower limits, to be valid, had to be in writing and attached to the policy.

In 1977 R.S. 22:1406(D) was amended and the requirement that a waiver or selection of lower limits be attached to the policy was made inapplicable to “renewal or substitute policies.”

Just as the two forms here, the attempted waiver/selection of lower coverage in A.I.U. Ins. Co. v. Roberts was made before the 1977 amendment to R.S. 22:1406(D), but the policy was issued or renewed after 1977, and the accident occurred after 1977.

The A.I. U. Ins. Co. case is closely analogous to the case sub judice. There our high court dealt with an attempted oral waiver of the statutory U.M. coverage made by the insured in 1975. The policy had been continuously renewed at 6-month intervals, the last renewal being made in June, 1978, a month before the accident. Although the policy renewal and accident in A.I.U. Ins. Co. occurred as here, after the 1977 amendments to R.S. 22:1406(D), the Court looked to the law in effect at the time of the attempted waiver of U.M. coverage. The Court held, at 404 So.2d 951-52:

It is of no moment that the policy in the instant case provided lower limits since the coverage was read into the policy by the terms of the statute. Since selection of lower limits conflicted with the coverage written into the policy [by] law, such selection was required to be in writing and attached to the policy. The oral waiver of uninsured motorist coverage was therefore invalid as being in in contravention of La.R.S. 22:628 notwithstanding the fact that the version of La. R.S. 22:1406 in effect at the time did not contain a writing requirement, [citations omitted.] Clearly, prior to September 9, 1977, the effective date of Act 438 of 1977, any selection of lower limits, to be valid, had to be in writing and attached to the policy.

In this case, the versions of R.S. 22:1406(D) and 22:628 in effect when plaintiff signed the U.M. selection forms in 1976 mandated the attachment of such written waivers or selection forms to the insured’s policy. State Farm admits the selection forms were not attached and were therefore invalid; nevertheless, it argues the later amendments to R.S. 22:1406 retroactively validated the 1976 selection forms and made them applicable to renewals of the policies after 1977.

State Farm relies on the provision in the 1977 amendment that “Any document signed by the named insured .... which initially rejects such coverage ... shall be conclusively presumed to become a part of the policy or contract when issued or delivered, irrespective of whether physically attached thereto.” We do not construe the amendment as an effort to resucí-tate a waiver that was void ab initio when the waiver was signed. If, as State Farm urges, the policies in effect when the accident occurred were either renewals of/or substitutes for the prior policies, which admittedly provided for U.M. limits equal to the liability limits, there would be no “carryover” effect from the previously invalid waivers. Likewise, if the current policies are viewed as entirely new contracts, the U.M. limits would equal the liability coverage because the insured did not sign any additional selection forms applicable to the new policies. See Courville v. State Farm Mutual Automobile Ins. Co., 393 So.2d 703 (La.1980).

The same conclusion was reached by the Third Circuit in the recent case of Stroud v. Liberty Mutual Ins. Co., 429 So.2d 492 (La.App. 3d Cir.1983). The insured in Stroud had written a letter declining U.M. coverage in 1973. The letter was never attached to the original policies or to those in effect when the accident occurred in 1979, which were apparently replacements or renewals of the 1973 policies. The Court refused to apply the 1977 U.M. amendment retroactively, declaring at 429 So.2d 496:

The letter rejecting uninsured motorist coverage in the case at bar was written a long time prior to the effective date of Act 438 of 1977. It was never effective as a rejection of uninsured motorist coverage on the policy originally issued to John Morrel Company [the insured] since it was never attached to such previous policy. It is thereby ineffective to constitute a rejection of uninsured motorist coverage in the policy in question, as well.

The judgment of the trial court holding the U.M. coverage on the Pontiac and Mercury to be $100,000/$300,000 at the time of plaintiff’s accident is therefore affirmed.

APPLICATION OF “STACKING”

LSA-R.S. 22:1406(D)(1)(c), in pertinent part, provides:

“(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
“With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
. .“(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
.. “(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than orie coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant. ” (Emphasis added).

This provision was added to the statute regulating U.M. coverage in order “to prohibit stacking except under certain designated circumstances.” Courville v. State Farm Mutual Automobile Ins. Co., supra. In Courville, the court construed the above provision quite literally by holding it did not bar the injured son of the named insured, who was occupying a vehicle owned by his father, from recovering both the U.M. limits on the car in which he was injured and the U.M. limits on another car owned by the youth’s father. Applying each of the statutory clauses as written, Courville held: (1) the injured boy was “occupying a vehicle not owned by said injured party”; (2) the U.M. coverage on the vehicle in which the boy was riding was primary (the fact that the “non-owned vehicle” belonged to the boy’s father, the named insured, did not matter); and (3) since the primary coverage on the occupied vehicle was exhausted due to the severity of the boy’s injuries, he could “recover as excess from other U.M. coverage available to him,” in that case the U.M. coverage on his father’s other car.

Courville, at page 705, explicitly recognized “the general rule that an insured who has insurance available to him under more than one uninsured motorist policy may not stack....”, but found the plaintiff there to be within the single statutory exception to the anti-stacking provision of R.S. 22:1406(D)(1)(c). That exception was obviously intended to allow a party who is injured in another person’s car to recover under both the U.M. limits on the car in which he was riding, and one other policy under which he is an insured (generally, a policy on his own car). Because the statutory exception of R.S. 22:1406(D)(1)(c) was drafted broadly enough to include the Courville situation, the Court there allowed the plaintiff to stack.

The instant situation does not fall within the statutory exception because Stephen Sentilles was a pedestrian. He was, therefore, obviously not “occupying an automobile not owned by said injured party,” the first requisite to application of the anti-stacking exception. Furthermore, the designation of “priorities of recovery under U.M. coverage” in 22:1406(D)(l)(c)(i) and (ii) could not possibly refer to an injured pedestrian, since the definition of “primary” coverage is the coverage on the “vehicle in which the injured party was an occupant.” By its own terms, the statutory exception limits “excess coverage” to “one uninsured motorist policy ... over and above the primary coverage available to the injured occupant.” Therefore, this case falls within the anti-stacking prohibition of R.S. 22:1406(D)(l)(c).

Plaintiffs submit, alternatively, that even if our Insurance Code does not allow stacking, the specific policy language does:

“Subject to the above, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance, and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” (Emphasis supplied.)

Plaintiffs argue the conjunction “and” instead of the disjunctive “or” in the phrase “the damages shall ... not ... exceed the higher of the applicable limits of this insurance and such other insurance” allows plaintiffs to add the U.M. limits of all available policies. We reject that interpretation because it disregards the phrase “the higher of” the applicable U.M. coverages, which is clearly intended to refer to whichever of the two or more applicable policies has greater limits.

Plaintiffs’ argument was considered in Clement v. Continental Ins. Co., 430 So.2d 1212 (La.App. 1st Cir.1983) which involved an identical policy endorsement. In rejecting the insured’s interpretation of that provision, the Court quoted Branch v. O’Brien, 396 So.2d 1372, 1377 (La.App.2d Cir.) writ denied 400 So.2d 905 (1981):

The pro rata paragraph of the “Other Insurance” clause would seem to be applicable because it provides that where the insured has other similar insurance available to him, the highest limits of the available policies govern, and each policy is to bear its pro rata share of the loss. Application of the clause here is inconsequential, however, because the available insurance policies were all written by the same company.
Plaintiff is entitled to recover up to the highest limits of the available policies. It matters not in this case, where all policies were issued by the same insurer, whether plaintiff is said to recover under the one policy providing [the highest] limits, or pro rata under each of the four policies. Plaintiff is entitled to judgment against the uninsured motorist insurer, State Farm, for the full amount of her damages, not to exceed the ... policy limits [of the one policy with the highest coverage.]

Plaintiffs, in relying on the quoted policy clause, do not point out or cite what said paragraph is subject to. The paragraph preceding the one cited incorporates into the policy the exception to the anti-stacking provisions of R.S. 22:1406(D)(l)(c). The statute mandates that “with respect to other insurance available the policy of insurance or endorsement shall provide the following” and State Farm accordingly obeyed said mandate by incorporating the required provision into the endorsement. The paragraph cited by the plaintiff is not only subject to the paragraph above it (which lists priorities for an injured occupant of a nonowned vehicle), but also to R.S. 22:1406(D)(l)(c) which prohibits stacking except in one situation. All this endorsement does is incorporate the exception provided for by law into the policy.

The jurisprudence clearly indicates that the statute controls and specifically prohibits stacking. Stephen Sentilles was not occupying a non-owned vehicle on which there was a primary policy providing U.M. coverage. Rather, he was a pedestrian subject to the anti-stacking prohibition contained in R.S. 22:1406(D)(l)(c) and incorporated into each of his father’s insurance policies with State Farm.

The judgment of the district court is affirmed.

AFFIRMED.

      . Policy numbers were the same with the addition A, B, etc.

      . Plaintiffs’ counsel conceded during oral argument that the third policy issued in 1980 is not in contest for U.M. coverage or stacking.


source: Caselaw Access Project

author: CIACCIO, Judge. WILLIAMS, Judge,

license: Public Domain

text:
    Barbara MANUEL v. Wilbur MANUEL, Jr.
    No. CA-0820.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearing Denied Jan. 25, 1984.

      Lawrence A. Areell, New Orleans, for defendant-appellant.
    William R. Mustian, III, Alonzo T. Stan-ga, Metairie, for plaintiff-appellee.
    Before REDMANN, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

The district court, pursuant to a rule to make past due child support executory, awarded the plaintiff 12,040.0o and $250 in attorney fees. The court dismissed the plaintiff’s rule for contempt arising out of the defendant’s refusal to pay child support. A rule to reduce child support, filed by the defendant, was granted.

The plaintiff appeals alleging error by the trial court in reducing the child support payments. Additionally she asks that this court amend the judgment by increasing the award of attorney fees and by awarding interest on the past due child support.

The defendant appeals alleging that the trial court erred in granting the plaintiff a judgment for past due child support.

This Court reverses in part, amends and affirms the judgment of the district court.

The facts are as follows:

The plaintiff and defendant separated prior to 1978 and obtained a legal separation on April 28, 1980. There were two children born of the marriage and they are currently minors. Prior to his legal separation, Mr. Manuel sustained a job related injury which rendered him disabled. As a result of the accident, he received $42,000 as a legal settlement and this sum was shared with the plaintiff. Since the time of the accident, Mr. Manuel has had only one source of income, namely Social Security benefits in the amount of $533 per month. Social Security benefits were also paid to the defendant’s minor children in the amount of $54 per month for each child. Mr. Manuel acquired a house after his legal separation. He bought the house for $38,-000 and pays a house note of $232 per month. He also owns a 1980 Buick automobile, for which he paid $8,000 and upon which he pays a monthly note of $256.

The issues presented are: (1) Did the trial judge err in awarding an executory judgment for past due child support? (2) Should the judgment be modified to award interest from the date of each past due installment? (3) Is the plaintiff entitled to an increase in attorney fees for prosecution of the rule to make past due child support executory? (4) Did the trial court err in granting the defendant’s motion for a reduction of child support? (5) Should that judgment have been given retroactive effect?

Rule to Make Past Due Child Support Executory

Mr. Manuel argues that the trial court erred in awarding a judgment for past due child support because the sole income of the defendant was Social Security benefits and Washington v. Washington, precludes any part of these benefits from being given to his children. 418 So.2d 748 (La.App., 4th Cir., 1982).

In Washington v. Washington, supra at 748, this Court held:

In view of the Supremacy clause, U.S. Const. Art. VI, and in view of 42 U.S.C. Sec. 407, exempting Social Security benefits from “execution, levy, attachment, garnishment, or other legal process,” we conclude that a state court has no jurisdiction to order, in effect, a payee of Social Security benefits to turn over part of those benefits to his children (themselves the recipients of benefits) and to enforce such an order by contempt proceedings. That order and enforcement amount to “legal process” in violation of 42 U.S.C. Section 407.

This decision does not preclude an award of child support when Social Security benefits constitute the sole income of the one who is making the payments, provided there are assets out of which such an award can be satisfied. Nor does it preclude a judgment making past due child support payments executory, provided there are assets (and/or other income) out of which such a judgment can be satisfied. See: Terjersen v. Terjersen, 420 So.2d 704 (La.App., 4th Cir.1982). The decision would preclude a contempt order arising out of the failure or refusal to make child support payments when the one making the payments has no assets and no income other than Social Security benefits. Likewise, the Washington decision, supra, prevents one from seeking satisfaction of an executory judgment from a recipient’s Social Security benefits.

Accordingly, the trial court did not err when it awarded plaintiff a judgment of $2,040 for past due child support. As revealed by the record, the defendant has assets (other than his Social Security income) out of which such a judgment can be satisfied.

The plaintiff contends that the judgment making past due child support execu-tory should be modified to award interest from the date of each past due installment.

Civil Code Article 1938 provides:
Art. 1938. Time from which legal interest is due.
All debts shall bear interest at the rate of twelve percent per annum from the time they become due, unless otherwise stipulated.
Amended by Acts 1970, No. 315, Sec. 1; Acts 1980, No. 402, Sec. 1; Acts 1981, No. 574, Sec. 1; Acts 1981, No. 639, Sec. 1; Acts 1982, No. 142, Sec. 1.

This provision has been applied to those cases dealing with arrearages of child support. Thompson v. Courville, 372 So.2d 579 (La.App., 1st Cir., 1979), citing Miller v. Miller, 321 So.2d 318 (La., 1975).

Accordingly, we find that the judgment for past due child support should bear legal interest on the delinquent amounts from the respective due dates until paid.

The plaintiff next contends that his award of $250 attorney fees for the prosecution of the rule to make past due child support executory should be increased to compensate for the additional work on appeal.

The amount of attorney fees to be awarded is a matter within the sound discretion of the trial court judge. R.S. 9:305. See: Mathews v. Mathews, 415 So.2d 234 (La.App., 2nd Cir., 1982). In view of the facts of this case, the amount of $250.00 does not constitute an abuse of discretion and accordingly, no increase will be granted.

2. Rule for Reduction of Child Support

The plaintiff contends that the trial court erred in granting the defendant’s rule to reduce child support.

In reaching its conclusion that child support payments should be reduced, the court reasoned as follows:

Two thousand forty dollars is made exec-utory plus attorney’s fees in the amount of $250 plus court costs. Now, he has not shown anything at all to convince this Court that there should be a reduction. However, the Court is aware that recently the Fourth Circuit Court in the case of Dorothy Washington v. Steven Washington [418 So.2d 748, La.App.], No. 12990, decided on August 13th, 1982— the Fourth Circuit, in its infinite wisdom, if one wants to call it that, has indicated as follows: “In view of the Supremacy clause, U.S. Const. Art. VI, and in view of 42 U.S.C. Section 407, exempting Social Security benefits from execution, levy, attachment, garnishment, or other legal process,” we conclude that a state court has no jurisdiction to order, in effect, a payee of Social Security benefits to turn over part of those benefits to his children (themselves the recipients of benefits) and to enforce such an order by contempt proceedings. That order and enforcement amount to legal process in violation of 42 U.S.C. Sec. 407.”
So in effect, while there has been no change of circumstances, as Mr. Manuel is concerned, the law has changed and therefore the motion to reduce will be granted. [Tr. 20-21]
* * * * * *

As previously discussed, the Washington decision, supra, of this Court, does not negate an award for child support unless the sole income of the one making the payments is Social Security benefits and there are no assets out of which such an award can be satisfied. (Emphasis Supplied) See: Terjersen v. Terjersen, supra.

In the instant case the record reveals that the defendant owns a house and automobile, and these items apparently contain some equity. Accordingly, these items would constitute “assets out of which such an award can be satisfied.” Once the equity in the defendant’s assets is exhausted and the child support award would thereby constitute an impingement upon the defendant’s Social Security benefits, he would be entitled to petition the court for a reduction of child support. Washington v. Washington, supra. See: Terjersen v. Terjersen, supra.

Therefore, absent a showing as required under Washington, supra, the reduction of a child support judgment may only be maintained where there has been a showing that there has been a change in the financial circumstances of the parties since the award was judicially established. Mancuso v. Mancuso, 352 So.2d 359 (La.App., 4th Cir., 1977).

Since the trial judge found that there was no change of circumstances and since the defendant has assets out of which an award of child support can be made, we find that the trial judge erred in granting the defendant’s rule to reduce child support payments.

Since we reverse the judgment reducing child support, we do not address the question of its retroactive effect, as that issue is now moot.

For the reasons assigned, the judgment of the district court dismissing the plaintiff’s rule for contempt is affirmed. The judgment of the district court granting the plaintiff’s rule to make past due child support executory is amended to award legal interest from the date of each past due installment and as amended, is affirmed. The judgment of the district court granting the defendant’s rule to reduce child support payments is reversed and the judgment of the court awarding child support payment of $127.50 per week is reinstated. Each party is to bear his own cost for this appeal.

REVERSED IN PART, AMENDED AND AFFIRMED.

WILLIAMS, J., concurs with reasons.

WILLIAMS, Judge,

concurring.

I agree with the result reached by the majority. I would like, however, to emphasize that merely owning assets in addition to or having income other than Social Security benefits does not automatically qualify one as being able to pay child support or alimony. Each case must be examined and evaluated on its own merits.

      . The parties stipulated that the amount of past due child support was $2,040.00.

      . The court did not specify the amount of the reduction, nor did the defendant indicate the amount of reduction desired.

      .This was the amount being received by the defendant when the court awarded child support on August 16, 1982 in the amount of $127.05 per week.


author: LOBRANO, Judge.

text:
    AUDUBON INSURANCE COMPANY v. Edward FARR and Allstate Insurance Company.
    No. CA-0895.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearing Denied Jan. 25, 1984.
    Writ Granted March 9, 1984.

      James L. Donovan, Jr., Donovan & Lawler, Metairie, for Edward Farr and Allstate Ins. Co., appellants.
    Michael K. Springmann, Dillon & Cam-bre, New Orleans, for Audubon Ins. Co., appellee.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   LOBRANO, Judge.

This appeal arises out of a subrogation suit brought by appellee, Audubon Insurance Company (hereinafter Audubon), against appellants, Allstate Insurance Company and Edward Farr (hereinafter Allstate and Farr), for reimbursement of $4,412.00 paid by Audubon to its insured, Donna M. Paul (hereinafter Paul) for damages to her dwelling which were caused by the negligence of Allstate’s insured, Farr. Allstate subsequently filed a third party demand against Audubon’s insured, Paul, for return of the $4,000.00 paid to her by Allstate allegedly for the same damages. The trial court ruled in favor of Audubon as subrogee of Paul for the full amount it paid to its insured, and granted Allstate and its insured, Farr, a third party judgment against Paul for the $4,000.00 paid by them. Allstate perfects this appeal as to the judgment obtained by Audubon.

The following facts were stipulated prior to trial, and are not in dispute.

On June 2, 1978, a 1965 Ford 2-door automobile, owned and operated by Edward Farr struck the dwelling owned by Donna M. Paul bearing Municipal Nos. 600-602 Louisa Street, New Orleans, La. This was a hit-and-run accident. Farr’s negligence was the sole and proximate cause of the accident. Audubon Insurance Company was the homeowner insurer of Paul, insuring her home against this type loss in excess of a $100.00 deductible. Allstate Insurance Company was the automobile liability insurer of Farr.

Audubon and Paul agreed that the total amount of the loss was $4,512.00. On July 5, 1978, Audubon issued to Paul its settlement draft in the amount of $4,412.00 (the loss minus the $100.00 deductible). Pursuant to the contract of insurance between Audubon and Paul, a subrogation receipt in the amount of $4,412.00 was executed by Paul in consideration of said payment. On August 18, 1978 that draft was paid by the bank.

During this same period of time, Paul was negotiating a settlement with Allstate and Farr whose identity at that time was unknown by Audubon. On July 20, 1978, Allstate issued to Paul its settlement cheek in the amount of $4,000.00 with the notation, “IN PAYMENT OF PROPERTY damage of 6-1-78”. The draft contained-no release language thereon, and Allstate did not procure from Paul a release of any kind in connection with its aforesaid payment of $4,000.00. Allstate’s draft was paid by the bank on August 21, 1978.

Upon receipt of the police accident report on August 16, 1978 Audubon became aware of the name of the tortfeasor, Farr. On October 3, 1978 Audubon filed an SR-10 form with the Department of Financial Responsibility in an attempt to learn the name of Farr’s insurer, if any. On March 3, 1979, the Louisiana Department of Public Safety sent a letter to Audubon indicating liability coverage on Farr with Allstate. On March 16, 1979 Audubon sent Farr a notice of subrogation which he in turn forwarded to Allstate. They received said notice on March 23, 1979. As a result of a telephone conversation with Farr, Audubon sent to Allstate on March 29, 1979 a copy of its subrogation receipt and proof of loss which Allstate received on April 5, 1979. In response thereto, Allstate informed Audubon of its $4,000.00 payment to Paul and forwarded a copy of the draft.

Allstate refused to reimburse Audubon asserting that its payment to Paul extinguished the debt owed to Audubon, thus resulting in this litigation.

The issues raised by Allstate in this Court are as follows:

.1. The trial court erred in finding that the obligation of Edward Farr and Allstate Insurance Company to Donna M. Paul had not been extinguished with payment to her.
2. Alternatively, whether Edward Farr and Allstate Insurance Company should not have been given a credit for their payment to Donna M. Paul.

After a careful review of the record we find that the judgment of the trial court is correct.

Audubon’s policy of insurance to Donna M. Paul contained the following subrogation clause:

“Subrogation. This company may require from the insured an assignment of all rights of recovery against any party for the loss to the extent of that payment therefor is made by this company.”

The jurisprudence is well settled that where a subrogation clause is included in an insurance contract, subrogation takes place automatically at the time of payment as an incident to it. Bond v. Commercial Union Assurance Co., 407 So.2d 401 (La.1981); Cox v. W.M. Heroman and Co. Inc., 298 So.2d 848 (La.1974); State Farm Fire and Casualty Co. v. Sentry Indemnity Co., 346 So.2d 1331 (La.App. 3rd Cir.1977); Continental Casualty Company v. Canadian Universal Co., 605 F.2d 1340 (5th Cir., 1979); Union Indemnity Company v. Crow, 14 La.App. 197, 127 So. 35 (1930); Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766 (1907). Where subrogation clauses are included in insurance contracts, upon payment by the carrier to its insured, “the subrogee is substituted and figuratively placed in the shoes of subrogor.” American Auto Ins. Co. v. Twenty Grand Towing Co., 225 So.2d 114 (La.App. 1st Cir.1969); La.C.C. Arts. 2160 and 2161.

Upon Audubon’s payment to Paul, the debt of the tortfeasor and his insurer was divided between Audubon and Paul, causing them to become either several or joint obligees, and that any subsequent action by Paul in exercising her right to collect her part of any credit due her had no prejudicial effect upon Audubon’s rights. Southern Farm Bureau Casualty Ins. Co. v. Sonnier, 406 So.2d 178 (La.1981). More specifically, Paul did not lose or give up her right to proceed against Farr and Allstate for any amounts she felt may be due simply because she settled with her own insurer. Thus the payment by Audubon to Paul created a subrogation right in Audubon’s favor against Allstate and Farr up to the amount so paid.

Allstate asserts the defenses of extin-guishment of the obligation or remission of the debt, either in whole or in part, upon its payment of the $4,000.00 to Paul. In support of these arguments, Allstate cites the cases of Voss v. Mike and Tony’s Steakhouse, 230 So.2d 470 (La.App. 1st Cir.1969) and Pennsylvania Fire Ins. Co. v. Harrison, 94 So.2d 92 (La.App. 1st Cir.1957).

In Voss, the defendants settled with the plaintiff knowing full well that the plaintiff had already collected from his collision insurer. In fact, the collision insurer had intervened in the suit by plaintiff against the defendant. Upon payment by defendants they obtained a full release from plaintiff for all responsibility including any responsibility they might have to plaintiff’s collision insurer. The collision insurer then successfully proceeded against plaintiff claiming he, in effect, had been paid twice. These facts are quite different from the instant case; most notably where Allstate, the defendant, failed to get any release whatsoever, and where Audubon, the insurer is proceeding directly against the tort-feasor, and not its own insured.

In Pennsylvania Fire Insurance Company, the tort-feasor also settled with the insured knowing that he had already collected under the collision portion of his policy. The tort-feasor’s payment was for an amount in excess of the collision insurer’s payment because the insured felt he was not fully compensated for his damages. The Court held that since the damages were stipulated by the insured to be the same amount as paid by his insurer, the tortfeasor should be given a credit for the excess amount paid by him. We disagree with the reasoning of that case, since it is inconsistent with the principles set out by our own circuit in American Bankers Insurance Company of Florida v. Costa, 107 So.2d 76 (La.App. Orleans 1958), discussed below.

We are convinced that an insured cannot release a tortfeasor from liability arising in favor of its insurer. American Bankers Insurance Company of Florida v. Costa, supra. In the instant case that principle of law is especially applicable since Audubon’s subrogation rights vested prior to any payment by Allstate and where Audubon at the time it issued the draft, had no knowledge of the tortfeasor or his insurer. To hold otherwise would allow subsequent conduct on the part of the insured to undermine the contractual and legal rights of the insurer.

Furthermore, we reject Allstate’s claim that Audubon was in a better position to have prevented this situation and therefore equity requires that Audubon should bear the loss. Inasmuch as Farr was a hit-and-run driver, Audubon did not know the identity of the tortfeasor at the time of the accident or if he was insured. Despite this lack of knowledge, Audubon settled its obligation with its insured in a very expeditious manner, which it was legally required to do. They cannot, now, be penalized for living up to their contractual obligations. This Court is well aware of the fact that it is the tortfeasor and his liability carrier, not an innocent party, who should bear the loss inasmuch as it is the act of the tort-feasor which caused the damages. LSA C.C. Art. 2315.

For the foregoing reasons the judgment of the trial court is affirmed. All costs to be paid by appellant.

AFFIRMED.


author: WARD, Judge. BARRY, Judge, PER CURIAM.

text:
    Lei Lani HERRIN and her Father, Freddie Herrin v. Mona LOWE, Brian Lyons and State Farm Mutual Automobile Insurance Company.
    No. CA-0487.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearing Denied Jan. 25, 1984.

      Samuel Richard Exnicios, Liska, Exnicios & Nungesser, New Orleans, for plaintiffs/appellees, Lei Lani Herrin and her father, Freddie Herrin.
    Owen A. Neff, Peter S. Title, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for defendant/appellant, State Farm Mut. Auto. Ins. Co.
    Edward J. Mozier, Jr., New Orleans, for intervenor/appellee, Pendleton Memorial Methodist Hosp.
    Before WARD, REDMANN and BARRY, JJ.
   WARD, Judge.

This is a suit for damages for personal injuries that Lei Lani Herrin received while she was riding as a guest passenger on Armand Audibert’s motorcycle after it collided with an automobile driven by Mona Lowe, but owned by Brian Lyons, now her husband. Lei Herrin sued Mona Lowe and Brian Lyons, but neither Mona Lowe nor Brian Lyons had liability insurance, consequently, Lei and her father, Freddie Her-rin, sued Herrin’s uninsured motorist carrier, State Farm Mutual Automobile Insurance Company. Armand Audibert, who was killed in the accident, did not have liability insurance for his motorcycle, and neither vehicle was insured. Neither he nor his Succession was made a party to this lawsuit. Lei and Freddie Herrin claim, however, that they are entitled to recover uninsured motorist benefits from State Farm for both uninsured vehicles.

The Trial Judge found that Armand Au-dibert, as operator of the motorcycle, and Mona Lowe, as operator of the automobile, were both,negligent, and he rendered judgment against Mona Lowe and Brian Lyons, for $119,874.00 and against State Farm as the uninsured motorist carrier of Freddie Herrin. Lei Herrin was insured under the terms of the uninsured motorist provisions of two State Farm policies held by her father. Each policy contained uninsured motorist coverage of $15,000.00, and the Trial Judge held that State Farm was liable for $30,000.00 of the $119,874.00 judgment, or $15,000.00 under the uninsured motorist provisions of each policy.

State Farm has appealed the portion of the judgment which required it to pay the benefits of Mr. Herrin’s two uninsured motorist policies. State Farm argues that the Trial Judge erred in not applying the “anti-stacking” provisions of La.R.S. 22:1406(D)(l)(c) which would limit State Farm’s obligation to $15,000.00, the coverage under only one uninsured motorist policy. The Herrins argue that “stacking” is not the issue and that they are entitled to the proceeds of each policy because Miss Herrin was injured by the negligence of two joint tortfeasors who were both uninsured. The Herrins also argue that the Trial Judge was correct when he determined that each driver was negligent and that the negligence of each driver caused the accident and the injuries to Miss Her-rin. The Herrins also contend that the Trial Judge was correct when he concluded that because the driver of each vehicle was an uninsured tortfeasor, each of Freddie Herrin’s insurance policies and their uninsured motorist provisions cover the risk of two uninsured motorists and that one policy should pay for the first uninsured motorist, and the second policy for the other.

This very plausible theory is supported by Mr. Herrin’s State Farm policies which state that uninsured motorist benefits will be paid to the insured or his legal representative who is “legally entitled to recover as damages from the owner or operator of an uninsured automobile....” Stated in other words, if State Farm agreed by its uninsured motorist coverage to stand in the shoes of a liability carrier of an uninsured, then one policy may apply to the motorcycle and the other policy to the automobile, applying the uninsured motorist clause to the vehicle and not to the occurrence.

The issue, simply put, is: does the statutory exclusion prohibit stacking of two policies only when there is one tortfeasor, as Herrin contends, or does it prohibit stacking when there is only one occurrence, no matter how many vehicles or tortfeasors are uninsured, as State Farm contends?

We hold recovery from State Farm is limited to $15,000, the limit of one policy, even though Freddie Herrin and consequently, his daughter, Lei, were covered under two State Farm policies. We believe the Trial Court erred in granting recovery from both policies. La.R.S. 22:1406(D)(l)(c) prohibits increasing an uninsured motorist carrier’s liability by “stacking” policies,

(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy;

We believe the statutory scheme is to protect against “damages”, and the number of automobiles or tortfeasors causing the damage is immaterial.

As an indication of that scheme and the intent of the legislature, Section b provides:

(b) For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to be the parties and their insurers or as determined by final adjudication.

Although this does not cover the situation where there are two policies and more than one uninsured, as in this case, Section c indicates the Legislature was concerned about damages from an accident, for one occurrence. Moreover, Section c, above, speaks of “limits” of coverage, meaning, we believe, damages sustained in any one occurrence.

Although two uninsured vehicles were involved and the Trial Court found two tortfeasors, there was but one accident and one occurrence in which Miss Herrin suffered damages, and only one uninsured motorist provision is available to plaintiffs.

The judgment of the Trial Court allowing the Herrins to recover from two uninsured motorist policies, therefore, is reversed.

But we do not reverse the judgment as a whole because plaintiff is entitled to legal interest on $15,000 from judicial demand until it was paid (presumably shortly after trial).

Moreover, plaintiff is certainly entitled to all costs up until trial because of defendant’s failure to tender unconditionally the $15,000 plus interest and costs it indisputably owed (medical was more than that), rather than attempt to force plaintiff to accept $15,000 in full settlement of all claims. (Defendant apparently does not accede to the law that it must pay undisputa-ble claims rather than withhold payment unless it can settle disputed claims, notwithstanding Soniat v. State Farm Mut. A. Ins. Co., 340 So.2d 1097 (La.App. 4 Cir.1976), which awarded penalty and attorney’s fees against our defendant precisely because its offer to pay policy limits on UM coverage was conditioned on her compromising her claim on another coverage.) Nor should plaintiff have to pay the costs of appeal other than those of filing with this court and of preparing the record (but not the transcript, unnecessary because only the stacking question was at issue on appeal.)

We therefore amend the judgment to award plaintiff $15,000 plus interest from judicial demand until the date of payment (with credit for the payment of $15,000 promised shortly after trial), plus all of plaintiff’s costs; plaintiff to pay defendant’s cost of appeal save the transcript cost.

BARRY, J., concurs with written reasons.

BARRY, Judge,

joins the majority with written reasons.

I agree with the result. In a similar factual situation, the Third Circuit denied the claim of an occupant of an uninsured vehicle (as outside the limited exception to stacking) because other coverage was available. La. Farm Bureau Mutual Ins. Co. v. Pinder, 428 So.2d 527 (La.App. 3d Cir. 1983). The exception to stacking is very narrow and should be strictly applied until the legislature provides otherwise.

ON APPLICATION FOR REHEARING

PER CURIAM.

On State Farm’s application for rehearing we amend our judgment so as to eliminate our award of interest on its $15,-000 liability because State Farm now shows, by document not in the record on appeal and dated 39 days after the judgment, that before the judgment plaintiffs had waived the interest (although we also do not find any oral waiver in the record).

We do not eliminate our affirmation of the trial court’s award of trial costs nor our award of cost of the appellate transcript because the record and State Farm’s brief on appeal contradict the application’s claim that State Farm had paid its $15,000 liability as “undisputed.”

State Farm’s memorandum in support of motion for summary judgment averred payment “by draft dated March 5, 1982”— five months after suit was filed and 13 months after the accident. Plaintiffs’ application denied payment, asserting that State Farm had merely “tendered to plaintiff a $15,000 settlement offer.” Then, at the opening of trial, plaintiff counsel declared State Farm was “presently tendering to us the sum of $15,000” and State Farm’s counsel confirmed “that within the next week a State Farm draft in the amount of $15,000 will be issued .... ” Even State Farm’s brief on appeal describes its earlier $15,000 offer as “tendered ... as a full and final settlement of its liability, which plaintiffs refused.”

Thus the record fairly establishes that State Farm never tendered the $15,000 it now describes as “undisputed,” other than as a full settlement offer, until the day of trial. It is therefore responsible for all costs up until trial, and those are the only costs we cast it for, save for the cost of a transcript of testimony that was unnecessary to the record for State Farm’s appeal. We cast plaintiffs for all other costs of the appeal which they lost.

Our decree on costs is correct.


author: WARD, Judge. GULOTTA, J., PER CURIAM.

text:
    Brenda Lee COOLEY v. ALLSTATE INSURANCE COMPANY.
    No. CA-0909.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearings Denied Jan. 25, 1984.
    Writ Denied March 16, 1984.

      John J. Hainkel, Jr., Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendant/appellant, Allstate Ins. Co.
    Lawrence J. Boasso, Noland & Boasso, New Orleans, for plaintiff-appellee, Brenda Lee Cooley.
    Before WARD, GULOTTA and KLEES, JJ.
   WARD, Judge.

On July 30, 1981, Brenda Lee Cooley sustained serious leg injuries when an iron balcony she was sitting on collapsed and fell from a house. The house owner’s insurer, Allstate Insurance Company, admitted liability, leaving only the issue of damages to be determined by the jury. The jury awarded Cooley fifty-five thousand dollars ($55,000.00). Cooley filed several post trial motions, one was for Judgment Notwithstanding the Verdict, another for Additur, and a third for a New Trial. The Trial Court denied the motions for Additur and New Trial, but entered a Judgment Notwithstanding the Verdict awarding Cooley ninety thousand dollars ($90,000.00).

On appeal, Allstate contends that the Judgment Notwithstanding the Verdict was an improper procedural device by which to raise the amount of damages and they argue that the original judgment was not inadequate. We find merit in Allstate’s contention that the Judgment Notwithstanding the Verdict was improper and that Additur would have been the appropriate procedure by which to raise the damage award. Therefore, we will vacate the Trial Judge’s order entering a judgment notwithstanding the verdict, and decide the case on the record before us.

Cooley argues that additur is not the exclusive means by which to amend a damage award and that C.C.P. Art. 1810.1 does not specifically exclude the use of a Judgment Notwithstanding the Verdict to amend jury awards of damages. Even though not excluded, we believe that C.C.P. Art. 1810.1 was not intended as a procedure to alter the jury’s award of damages.

The procedural remedy of Judgment Notwithstanding the Verdict is relatively new in Louisiana. The Article granting the remedy, C.C.P. Art. 1810.1, was enacted in 1982 and provides:

A. After a verdict has been returned by the jury, the court upon timely motion may set aside the verdict and enter a judgment notwithstanding the verdict in favor of any party.
* * * * * *
C. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct that a judgment be rendered. If no verdict was returned, the court may direct that a judgment be rendered or may order a new trial.
* * . * * * *
E. The party whose verdict has been set aside on a motion for a judgment notwithstanding the verdict may move for a new trial pursuant to Articles 1972, 1973, or both. The motion for a new trial shall be filed no later than seven days after the signing of the judgment notwithstanding the verdict. The motion shall be served pursuant to Article 1976.

The procedural remedy of additur is based on C.C.P. Art. 1813 which states:

If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the amount of the excess or inadequacy of the verdict or judgment can be separately and fairly ascertained. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith.

C.C.P. 1810.1 was modeled after Federal Rule of Civil Procedure 50(b-d). Thus, it is proper to consult federal jurisprudence for guidance in determining the scope of Art. 1810.1.

In Presidential Properties, Inc. v. Canto, 615 F.2d 657 (5th Cir.1980), the plaintiff argued that the district court erred in denying plaintiff’s motion for Judgment Notwithstanding the Verdict because the jury had made a mistake in calculations and given the defendant twice the amount of credit due. The appellate court held that the district court did not err in concluding that it could not tamper with the verdict by granting the Motion for Judgment Notwithstanding the Verdict because of the Seventh Amendment -to the United States Constitution which guarantees the right to trial by jury.

Louisiana recognizes the right to trial by jury in Code of Civil Procedure Article 1731. Accordingly, C.C.P. Art. 1813 provides that additur is an alternative to a new trial and may be entered only with the consent of the non-moving party. In Rougeau v. Commercial Union Insurance Company, 432 So.2d 1162 (La.App. 3rd Cir. 1983), a comparative negligence case, a Judgment Notwithstanding the Verdict was entered as to liability and the judgment also amended the damages awarded by the jury. On appeal, the Third Circuit held that the procedural remedy of Judgment Notwithstanding the Verdict was not intended to supplant the procedure for ad-ditur, since C.C.P. Art. 1810.1 did not amend or repeal C.C.P. 1813. Thus, they held that the trial court must still utilize additur to raise a damage award. In discussing the rights of the non-moving party, the Court stated:

On the basis of article 1813 the trial court is not empowered to increase or decrease a jury verdict without the consent of the affected party. He may order a new trial if he finds the verdict is excessive or inadequate. By indicating to the affected party the amount by which he thinks the verdict is excessive or inadequate, with that party’s consent a remittitur or additur may be entered as an alternative to a new trial. Without the consent of the affected party, however, to a remittitur or an additur, a new trial must be granted as to damages when the trial court makes a finding that the jury verdict is excessive or inadequate. (Emphasis Added)

In contrast, the consent of the non-moving party is not required for the granting of a Judgment Notwithstanding the Verdict. Although the non-moving party may apply for a new trial under C.C.P. Art. 1810.1, it is within the discretion of the trial judge to deny the motion. Considering that the right to trial by jury is recognized in Louisiana, we believe that the difference in the rights afforded the non-moving party under Code of Civil Procedure Articles 1810.1 and 1813 is of such significance that the procedures should not be used interchangeably.

Additionally, a general rule of statutory construction is that when a statute is subject to more than one interpretation, the interpretation that results in a reasonable and practical effect is preferred. See Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980). If C.C.P. Art. 1810.1 is interpreted to be one of two proper means through which to alter a damage award, the rights of the non-moving party under additur would be contingent on the trial judge’s discretionary choice of remedies. This would have a potentially detrimental effect on the non-moving party’s right to trial by jury under C.C.P. Art. 1813, and would lead to an arbitrary variance in the rights afforded litigants. Thus, such an interpretation of C.C.P. Art. 1810.1 would not yield a reasonable and practical effect.

Another general principle of statutory construction is that when two statutes appear applicable to the same subject, the statute that is more specifically directed to the matter at issue must prevail. See Smith v. Cajun Insulation, Inc., supra, and Boudreaux v. Terrebonne Parish Police Jury, 422 So.2d 1209 (La.App. 1st Cir. 1982). C.C.P. Art. 1810.1 speaks of verdicts in general, whereas C.C.P. Art. 1813 specifically addresses verdicts that are so excessive or inadequate as to warrant a new trial. Hence, we believe that C.C.P. Art. 1813, which specifically addresses damage awards, remains the proper procedure for amending damage awards.

We conclude that the trial court erred in altering the award through a Judgment Notwithstanding the Verdict. We would remand for additur, (see Rougeau v. Commercial Insurance Co., supra), but Cooley, having received the relief sought through the granting of the Judgment Notwithstanding the Verdict, did not appeal the Trial Court’s denial of the Motion for additur and that ruling is now final. See Houston Oilfield Company v. Pioneer Oil and Gas Company, 236 So.2d 536 (La.App. 4th Cir., 1970); and Mitchell v. Louisiana Power and Light Co., 380 So.2d 743 (La.App. 4th Cir.1980). As a matter of fact neither party has requested a remand in the event that this Court finds error in the granting of the Judgment Notwithstanding the Verdict. Cooley argues that the granting of the Judgment Notwithstanding the Verdict, if found to be error, should be considered as harmless error because the record supports the Trial Court’s award of damage. We are not inclined to consider the error as harmless, however, because of its effect on the defendant’s right to a new trial under C.C.P. Art. 1813. Neither does Allstate request a remand, but it argues that the Trial Judge erred when he rendered a judgment notwithstanding the verdict, then this Court should reinstate the jury verdict and that this Court should review the record only to determine if that verdict was manifestly erroneous. Allstate argues that it was not.

We conclude that the granting of the Judgment Notwithstanding the Verdict was an improper means through which to raise the damage award, and the Judgment Notwithstanding the Verdict is vacated, and, the jury verdict is reinstated. Ordinarily we would remand to give Allstate an opportunity to elect either an additur or a new trial; but because and only because neither party has requested a remand for compliance with C.C.P. Art. 1813, we will review the verdict rendered by the jury under the manifest error standards set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Cooley sustained injury when a second story iron balcony suddenly collapsed, catching her underneath the ironwork. She was taken to a hospital and immediately treated for a comminuted fracture of the left tibial plateau in the knee, a fracture of the left fibula, and injury to her left medial ligament and right foot. She subsequently underwent three operations during a ten-month period. She has a permanent loss of ten to fifteen degrees of mobility in the left knee and worsening traumatic arthritis. Cooley was twenty-six years old at the time of the injury and the photographic evidence revealed significant scars. Although the scars may be improved by plastic surgery, Cooley’s ortho-paedic surgeon recommended that she exercise the knee joint as much as possible, but the success of plastic surgery depends on immobilization of the joint for at least a month after surgery. Cooley was unable to maintain employment during the more than one year of surgical and theraputic treatment required to regain partial use of her knee. Her total medical expenses exceeded twelve thousand dollars ($12,-000.00). Considering these facts, we believe that the jury award of $55,000 is below the lowest amount within the jury’s discretion. Coco v. Winston Industries, Inc., supra. The record supports an award of $90,000, which we believe under the facts of this case to be the lowest amount within the jury’s discretion. See Thorton v. Moran, 341 So.2d 1136 (La.App. 1st Cir. 1976); Parker v. South Louisiana Contractors, 370 So.2d 1310 (La.App. 1st Cir. 1979). Therefore, in exercise of the powers granted this Court in Article 5, Section 10(B) of the Louisiana Constitution of 1974 and pursuant to C.C.P. Art. 2164, we enter judgment in the amount of $90,000.

For the above reasons, the ruling of the trial court granting a Judgment Notwithstanding the Verdict is reversed. Judgment is entered in favor of Cooley awarding $90,000.00 for the injuries she sustained.

GULOTTA, J., concurs.

GULOTTA, J.,

concurring.

I concur in the result.

ON APPLICATION FOE REHEARING

PER CURIAM.

In an application for rehearing, Counsel for Brenda Lee Cooley requests this Court to amend its judgment to provide for legal interest on the amount awarded Miss Cooley in that judgment from the date of judicial demand until paid. He also seeks an assessment of court costs.

Although the judgment of this Court is silent regarding legal interest, La. R.S. 13:4203 provides that “[Ljegal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’_” Interest attaches automatically until the judgment is paid in actions ex delicto whether prayed for in the petition or mentioned in the judgment. Thus, Miss Cooley is entitled to be paid legal interest without a formal amendment of our decree. Steele v. St. Paul Fire & Marine Insurance Co., 371 So.2d 843 (La.App. 3rd Cir.1979). Therefore, the rehearing application filed on behalf of Miss Cooley is denied.

Costs of the trial and appellate courts are to be paid by defendant, Allstate Insur-anee Company. See La.C.C.P. Arts. 1920, 2164 and Hall v. Mid-American Casualty Co., 413 So.2d 640 (La.App. 1st Cir.1982).


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Eric JOHNSON.
    No. KA-0500.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Before AUGUSTINE, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal by defendant Eric Johnson from his convictions and sentences for violations of La.R.S. 14:42 (aggravated rape), La.R.S. 14:44 (aggravated kidnapping), and La.R.S. 14:64 (armed robbery).

Defendant was indicted by a grand jury for aggravated rape, aggravated kidnapping, aggravated crime against nature (La. R.S. 14:89.1), and two counts of armed robbery. One of the counts of armed robbery was severed upon defendant’s motion. After trial by a twelve person jury, defendant was found guilty of all charges except aggravated crime against nature. The state filed a multiple bill of information against defendant charging that he previously had pleaded guilty to simple robbery and had been sentenced to 18 months in Orleans Parish Prison. After a hearing, defendant was given two life sentences without benefit of parole, probation, or suspension of sentence, on the charges of aggravated kidnapping and aggravated rape. Having been adjudged a multiple offender, defendant was also sentenced to 198 years for armed robbery.

Defendant appeals from these convictions and sentences, alleging nineteen assignments of error, two of which were abandoned in brief to this court.

FACTS

The state adduced the following facts at trial:

On February 11, 1982, the victim, an employee of Exxon, had attended a class at Tulane University. At approximately 8:00 p.m., a classmate gave her a ride to her car which was parked near the intersection of Walnut Street and St. Charles Avenue. As she was unlocking the door to her ear, defendant approached her on a bicycle. He threw the bicycle into some nearby bushes and threatened her with a gun, ordering her to get into the car and drive. He sat in the back seat and rummaged through her purse and demanded her jewelry. He ordered her to drive to a secluded area of Audubon Park, where he raped her vaginally and anally, and placed his penis in her mouth. The victim then saw her Exxon employee’s pass on the floor of the car and told defendant that she could get money for him with it. He let her drive him to a nearby shopping center. While defendant fumbled at the door of the car on the passenger side, trying to open it, the victim ran quickly from the car and into a grocery store. Defendant drove away. During this sequence of events, defendant threatened to kill the victim if she . did not do as he told her.

The police were summoned to the grocery store. They took the victim to the spot on St. Charles Avenue from which she was abducted, and she identified a bicycle found in the bushes as having been the one on which defendant had been riding. She was taken to Charity Hospital for examination. A rectal and a vaginal swab taken at that time were analyzed and found to be positive for seminal fluid. An oral swab also taken was found to be negative.

At about 10:00 p.m. that evening, defendant was involved in a traffic collision at the intersection of Louisiana and Magazine Streets. A security guard working inside of a drugstore at that intersection saw the accident. He came out of the store and saw defendant get out of one of the cars and run away. The guard got in his car and chased defendant until he (guard) apprehended him. He held defendant until the New Orleans police arrived. A search of defendant conducted by the security guard at the scene of the arrest revealed a .38 niekelplated revolver. Defendant was handcuffed and taken back to the drugstore by the guard who searched him again and found a wallet containing credit cards in the victim’s name and a cheek stub in defendant’s name. The guard also found the ring stolen from the victim on the ground by his car.

Defendant was taken to the police station. While there, the victim saw him through a two-way mirror and positively identified him as her assailant.

At trial, defendant offered no witnesses nor introduced any evidence.

AEGUMENT NO. 1

(Assignment of Error No. 1)

The defense argues that the trial court was in error in denying its Motion to Suppress Identification.

The basis for this argument is that the procedure by which the victim identified defendant at the police station created a substantial likelihood of mistaken identification. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

At the police station, the victim was told to look at someone through a two-way mirror. The testimony presented at trial and on the hearing on the motion to suppress was unequivocal that the police would not tell the victim why she was to look at defendant. No one else in the room with defendant was visible. She positively identified defendant.

In State v. Guillot, 353 So.2d 1005 (La.1977), the Louisiana Supreme Court held that:

“[e]ven should the identification be considered suggestive, this alone does not indicate a violation of the defendant’s right to due process. It is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure.”

Id. at 1008, citing Manson v. Brathwaite, supra.

The court enumerated five factors to be considered in determining whether an identification was suggestive: (1) the opportunity to view; .(2) the degree of attention; (3) the accuracy of the description; (4) the witness’s level of certainty; and (5) the time between the crime and the confrontation. State v. Guillot at 1009.

In this case, the victim was with defendant for about 45 minutes in her car. She saw him clearly when the light inside her car was on as he opened the door and they drove down a well-lit street. As the Louisiana Supreme Court stated in State v. Guillot, the victim was not “a casual observer; [she] most certainly had [her] attention riveted to the defendant.” Id. Also, the description given by the victim to the police was accurate, with the exception of the color of the leather jacket defendant was wearing. She told police that it was gray; it was brown. She testified that she might have thought that the jacket was brown because the interior of her car was brown and the jacket appeared that color in the light. Otherwise, her description of defendant was accurate. She positively identified defendant and did so within a few hours of the crime.

The identification made of the assailant was clearly not tainted by the procedure used. Based upon the criteria set forth by the Louisiana Supreme Court, we cannot find that the trial court abused its discretion. See State v. Smith, 418 So.2d 515 (La.1982); State v. Stewart, 387 So.2d 1103 (La.1980).

This assignment of error is without merit.

ARGUMENT NO. 2

(Assignments of Error Nos. 2, 11, and 16)

Defendant contends that the trial court was in error in refusing to suppress evidence seized from him at arrest and then in allowing some of it to be introduced into evidence at trial.

The basis for this argument is that the security guard, Ronald Carter, who arrested defendant had no authority to arrest him for anything other than a felony, and because fleeing the scene of a traffic accident is a misdemeanor, the guard could not arrest him.

La.R.S. 33:1435.1 provides in pertinent part:

A. Notwithstanding any other provision of law to the contrary, the sheriff of each parish may issue to a municipal policeman a sheriffs commission permitting such officer to have parishwide law enforcement jurisdiction or jurisdiction within such limited area of the parish as the sheriff shall designate. Application for such commission shall be made only by the chief law enforcement officer of a municipality or other political subdivision. A sheriff’s commission may empower a local or municipal law enforcement officer to enforce any state law throughout the parish or may be limited in such manner as the sheriff shall determine. Such power may include the authority to arrest law violators both with and without a warrant or may be for the limited purpose of permitting such officer to enforce certain designated state or local laws or perform only those functions designated by the sheriff, and he may determine whether or not the officer shall be permitted to carry a handgun. (Emphasis added)

At trial, Carter testified that he was a commissioned deputy sheriff at the time of defendant’s arrest and was empowered with the authorities outlined above. The defense did not attempt to dispute this evidence in any way.

Because we find that the security guard was empowered to arrest defendant, these assignments of error are without merit.

ARGUMENT NO. 3

(Assignment of Error No. 3)

Defendant assigns as error the trial court’s ruling that he was not entitled to answers in response to certain questions that he propounded to the state in his Bill of Particulars and Motion for Discovery and Inspection.

Specifically, defendant contends that he was entitled to information regarding who arrested him, who was present at that time, who obtained evidence to be used against him, and the details of the search and seizure.

A bill of particulars sets forth the specific nature and cause of charge against a defendant. La.Code Cr.Pr. art. 484. It does not require the state to allow defendant access to inspect its entire file. La.C. Cr.Pr. art. 723. See State v. Loyd, 425 So.2d 710, 718 (La.1982).

The major thrust of defendant’s argument appears to be that he was unable to obtain the name of the security guard who arrested him. The Louisiana Supreme Court has held that a defendant is usually not entitled to the names of state witnesses. State v. Loyd, supra; State v. Marks, 337 So.2d 1177 (La.1976).

This assignment of error is, therefore, without merit.

ARGUMENT NO. 4

(Assignment of Error No. 5)

By this assignment of error, defendant argues that the trial court was in error in refusing to require the state to furnish statements made by the victim to the police.

In support of its contention, defendant argues that the statements were believed to have contained exculpatory evidence. Defendant requests that the case be remanded for an in camera inspection by the trial judge to determine whether the statements made by the victim contain exculpatory evidence, especially evidence which could be used for impeachment purposes.

The defense is entitled only to those statements of prosecution witnesses that are favorable to defendant and which are material and relevant to the issue of guilt or punishment. La.C.Cr.Pr. art. 718(1).

In the case before us, the defense requested in its Motion for Bill of Particulars and Discovery and Inspection that the state supply it with the names of persons who made exculpatory statements and to describe the contents of the statements in detail. The state responded that it did not have any exculpatory evidence in its possession. The defense also filed a motion to produce statements of witnesses. Unlike the situation in State v. Davenport, 399 So.2d 201 (La.1981), there has been no showing that the victim has ever made any statements. The prosecution has consistently responded to any request for such statements that they do not exist.

Furthermore, in response to a request by defendant, the trial court ordered the prosecution to permit the defense to copy and/or photograph any statement made in connection with the prosecution. This order included summaries of oral statements, transcriptions or stenographic recording of oral statements, as well as any written statements. There is nothing in the record to indicate that the state failed to comply with this order; no objection was lodged by the defense at any time.

Although defendant insists that it is entitled to statements made by the victim to the police, the existence of these statements is unproved. Obviously, the victim did give the police information about the incident on the night of the incident, but we cannot say that this would necessarily constitute a statement.

Short of reviewing the entire prosecution file on the case in an in camera inspection, there was no more that the trial court could have done for the defense. In fact, the judge did more than was necessary to protect defendant’s rights by ordering the state to produce the statements for the defense rather than simply submit them to an in camera statement.

Because the defense’s failure to request any specific information contained in the statements and, moreover, the failure of the defense to show that such statements exist, we cannot find that the trial court erred in denying the motion for production of statements of witnesses, especially in light of the state's assertion that no exculpatory evidence was available.

This assignment of error is without merit.

ARGUMENT NO. 5

(Assignments of Error Nos. 7, 12, and 13)

The defense contends that the trial court erred in allowing the introduction of hearsay testimony.

Some of the testimony to which defendant objects occurred during direct examination of the police officer who interviewed the victim. He stated that “[s]he explained to me what had happened, that she was raped...” The defense objected, and the trial judge instructed the witness to say only that the victim had made a complaint. Shortly thereafter, the officer testified that “[s]he explained that a bicycle was involved.” Once again, the defense objected and the court corrected the witness.

Hearsay evidence is inadmissible. La.R.S. 15:434; State v. Broussard, 391 So.2d 1167, 1169 (La.1980). Assuming ar-guendo that this testimony was hearsay, its introduction is not of such a nature as to require reversal. La.C.Cr.Pr. art. 921. The alleged hearsay evidence was cumulative: the victim testified that her assailant approached her on a bicycle and was able, to identify a photograph of the bicycle at trial. Her testimony also established that she made a complaint that she had been raped.

We cannot see how the introduction of these two statements made during the officer’s testimony could have in any way affected defendant’s rights.

Defendant also contends that the testimony of a police officer to the effect that the victim had identified her assailant and items that he had stolen from her was inadmissible hearsay.

During his testimony, one of the investigating officers, Det. Stanley Hoogerwerf stated that the victim identified a ring and credit cards taken from defendant after his arrest as belonging to her and said that although the gun defendant was carrying looked like the one that he had threatened her with, she could not positively identify it (Tr. at 71). Later, Hoogerwerf testified that the victim identified defendant at the police station the night of the crime.

As with the other statements, the admission of this testimony, although hearsay, does not require reversal. The evidence found in the testimony was corroborated by the testimony of the victim, who stated at trial that she had identified the items and defendant at the police station.

There was no possibility that the information contained in the hearsay evidence could have contributed in the least manner to defendant’s conviction.

This assignment of error is without merit.

ARGUMENT NO. 6

(Assignment of Error No. 8)

This assignment of error is based upon the trial court’s refusal to allow the defense to inspect a police report used to refresh the memory of a police officer during his testimony.

During trial, Officer Wortman used a police report that he had written to refresh his memory. It is clear from a reading of the transcript that this was the purpose of his looking at the report, rather than simply to read from it. If the officer had used the report as past recollection recorded and simply read the report, the defense would have been entitled to it. Because the report was only used to refresh Wortman’s memory, it was not available to the defense. State v. Banks, 341 So.2d 394 (La.1976); State v. Foret, 315 So.2d 278 (La.1975).

This assignment of error is without merit.

ARGUMENT NO. 7

(Assignment of Error No. 9)

The defense argues that the trial court was in error in qualifying Dr. William Troxler as an expert in rape examination.

At trial, Dr. Troxler was qualified as an expert in the field of medicine. Defendant contends that Dr. Troxler, although not qualified as an expert in rape examination, was allowed to give an opinion that was consistent with a complaint of rape.

The specific testimony to which defendants objects is:

“Q: And the notation [in the doctor’s report] that ‘the patient denies brutality,’ did the patient deny that she had been raped?
A: No, she denied that she’d been punched or cut, that’s what I was referring to, not that she had not been raped.”

(Tr. at 40).

We cannot conclude that the witness had given an opinion. He simply clarified a portion of his report that had been placed into evidence.

Furthermore, we note that defendant failed to object timely to the witness’s testimony. La.C.Cr.Pr. art. 841.

This assignment of error is without merit.

ARGUMENT 8

(Assignment of Error No. 10)

Defendant contends that the trial court was in error in refusing to allow cross-examination of Dr. Troxler about a notation in his report.

During cross-examination of Dr. Troxler, the defense started to inquire about the notation in his report: “L.P.I. December 1980.” The notation was the victim’s answer to the doctor’s query during the examination as to the last prior intercourse. The defense argues that this information was important for impeachment purposes.

La.R.S. 15:498 states that:
“[e]vidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused.”

In State v. Vaughn, 431 So.2d 358 (La.1983), the Louisiana Supreme Court held that a rape victim’s answers to questions as to last prior intercourse and birth control contained in a rape report were properly excluded from the jury. Id. at 362.

In the instant case, because the information was inadmissible, the area in which the defense claims it was entitled to cross-examine Dr. Troxler was properly limited by the trial court.

This assignment of error is without merit.

ARGUMENT NO. 9

(Assignment of Error No. 14)

Defendant argues that the trial court was in error in allowing the prosecution to ask a leading question on direct examination.

A leading question is one which suggests to a witness, the answer which he should give, and generally is prohibited. La.R.S. 15:277; State v. Francis, 337 So.2d 487 (La.1976).

During direct examination of the victim, the prosecutor asked: “Did [defendant] place his penis in your vagina?”, to which she responded yes. (Tr. at 80). Even assuming that the question was leading, it did not substantially affect defendant’s rights. The testimony as cumulative; the victim later testified that defendant’s penis had penetrated her vagina. See La.C.Cr.P. art. 921.

This assignment of error is without merit.

ARGUMENT NO. 10

(Assignment of Error No. 15)

The defense argues that the trial court was in error in allowing the introduction of certain photographs.

In its Supplemental Prayer for Oyer, the defense requested that the state furnish it with any photographs, including but not limited to, any “scene” photographs. The state replied that it had none. At trial, however, the prosecution introduced a photograph depicting defendant’s bicycle thrown into the bushes near the spot from which the victim was abducted.

Although the prosecution argues that the photographs were not actually taken of a “scene,” this distinction is irrelevant. The defense requested any photographs that the state intended to introduce at trial. Its specific request for certain photographs does not cancel out its more general request.

The state’s failure to comply with a discovery request results in reversal only when the jury may have reached the wrong conclusions on the basis of the state’s error. E.g., State v. Ray, 423 So.2d 1116 (La.1982). In the instant case, the photographs were simply of a bicycle in the bushes. They were not prejudicial or inflammatory. Furthermore, they were cumulative. The victim testified defendant approached her on a bicycle; a witness testified that defendant left her house earlier that evening on bicycle; the police testified that the bicycle had been found.

Based on all of the evidence presented at trial, we cannot find that the photographs were in any way misleading to the jury. Furthermore, the failure to disclose the photographs should not have impaired defendant’s ability to assess the strength of the case against him in preparation of his defense. Id. at 1119.

This assignment of error is without merit.

ARGUMENT NO. 11

(Assignment of Error No. 17)

By this assignment of error, defendant argues that the prosecutor made remarks in closing argument that necessitated a mistrial.

The portion of closing argument to which defendants objects is:

“[LJadies and gentlemen, on voir dire, I explained to you that reasonable doubt is not a doubt based on a whim, and that’s what he wants. He wants you to base it on a whim. There is no reasonable doubt in this case. Ladies and gentlemen, the Judge will instruct you that you owe the defendant your individual verdict; but you also owe the people of this community your individual verdicts. Before you let that man walk out of that door right behind you, you’ve got to be convinced that everything you’ve hear is untrue or mistaken and there’s absolutely no reason to believe that.”

(Tr. at 104-05).

Although the propriety of the prosecutor’s remarks is debatable, we find that the trial court was not in error in refusing to grant a mistrial on such a basis.

Before overturning a jury verdict on the basis of improper argument, we must be convinced that the remarks influenced the jury and contributed to its verdict. State v. Lee, 364 So.2d 1024 (La.1978); State v. Crumholt, 357 So.2d 526 (La.1978).

Reviewing the prosecutor’s remarks and the totality of evidence presented at trial, we are not convinced that the arguments led to the guilty verdict.

This assignment of error is without merit.

ARGUMENT NO. 12

(Assignment of Error No. 18)

Defendant argues that the trial court should have granted a new trial because there was insufficient evidence to convict him of aggravated kidnapping.

The essential elements of La.R.S. 14:44 as applied in this case are: (1) the forcible seizing and carrying of a person from one place to another; (2) to force a victim (or another) to grant any advantage or immunity or give up anything of apparent present or prospective value, and in order to (3) secure the victim’s release from defendant’s control.

The Louisiana Supreme Court has held that seizure with intent to commit rape satisfies the requirement that the victim be forced to give up something of value. E.g., State v. Sonnier, 402 So.2d 650 (La.1981).

In this case, there was ample evidence introduced by the prosecution to prove each essential element of aggravated kidnapping. Any rational trier of fact would agree that the evidence presented at trial, viewed in the light most favorable to the state, proved each essential element beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

This assignment of error is without merit.

ARGUMENT NO. 13

(Assignment of Error No. 19)

Defendant argues that the sentence imposed upon him was unconstitutionally excessive.

Defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence on each of the charges of aggravated kidnapping and aggravated rape. These sentences were mandatory. Defendant was also found to be a multiple offender on the basis of a conviction of a prior felony (La.R.S. 14:65) and sentenced to a maximum of 198 years. La.R.S. 15:529.1(A)(1). It is this sentence that defendant complains is excessive.

A sentence that is within the statutory limit may nevertheless be excessive in a particular case. La. Const, art. 1, Section 20 (1974). State v. Sepulvado, 367 So.2d 762 (La.1979). In sentencing a defendant, the trial court uses guidelines set forth in La.C.Cr.P. art. 894.1 to individualize the punishment. The court need not articulate each of the fourteen aggravating and mitigating circumstances, but the record must reflect that these guidelines were considered in sentencing a defendant.

In the case before us, the trial court clearly took these guidelines into consideration before sentencing defendant. The judge outlined defendant’s criminal history and the nature of the crime involved. The court stated that a lesser sentence would depreciate the seriousness of the offense and that his actions “demonstrate a brutal depravity for which there can be no other remedy but total incarceration.” (Sentencing Hearing Tr. at 7).

Finally, we must review the sentence itself. Although the sentences are “apparently severe,” State v. Cox, 369 So.2d 118 (La.1976), because they are the maximum allowable, we do not find that the sentence in this case is excessive. A sentence is excessive if it is grossly disproportionate to the severity of the offense. State v. Bonanno, 384 So.2d 355 (La.1980).

The evidence in the record demonstrates that defendant committed a cruel and heartless series of crimes against the victim. The nature of the crimes in itself demanded a severe sentence, but defendant’s own background also indicated the necessity for stiff punishment. He had been arrested 13 times prior to this incident including 2 arrests for murder and 2 arrests for attempted murder as well as the prior conviction for simple robbery (the charge had been reduced from armed robbery).

A sentence imposed by the trial court should not be disturbed absent a manifest abuse of discretion. State v. Pearson, 425 So.2d 704, 715 (La.1982) and cases cited therein. Based upon the record, we cannot conclude that the trial court abused its discretion in sentencing defendant to 198 years for armed robbery.

For the foregoing reasons, the convictions and sentences of defendant are AFFIRMED.

AFFIRMED.

      . The jury was unable to reach a verdict on this charge, and the trial court declared a mistrial. The charge was later dropped by the prosecution.