text:
    Arnold BLACKWELL v. HECK INDUSTRIES.
    No. 10-231.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.
    John K. (Mike) Anderson, Attorney at Law, Leesville, LA, for Plaintiff/Appellant, Arnold Blackwell.

      Mark A. Watson, Stafford, Stewart & Potter, Alexandria, LA, for Defendant/Ap-pellee, Heck Industries.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

| lArnold Blackwell sued his employer, Heck Industries, for workers’ compensation benefits following a work-related injury on August 14, 2002. Upon finding that Blackwell failed to meet his burden of proof, the workers’ compensation judge denied the claim for benefits. We affirm.

The parties stipulated that Blackwell sustained some injury from a fall in a hole in the pavement at a job site. He continued working that day, but he sought medical care the following day. Blackwell experienced pain in his back and was restricted from working for a short period of time. Compensation benefits were initiated. For a period of two months, Blackwell received indemnity and medical benefits from his employer. He saw several physicians of his own choice and his employer’s choice, but none of the physicians found objective evidence of any continuing injury caused by the August 14, 2002 accident. Furthermore, the medical evidence indicated that Blackwell appeared to engage in both symptom magnification and drug seeking behavior.

After reviewing the medical evidence presented to the Office of Workers’ Compensation and listening to the live testimony of the claimant, the workers’ compensation judge determined that Blackwell failed to prove by a preponderance of the evidence that his continuing complaints of back pain, and the need for continued medical care, resulted from his work-related injury of August 14, 2002. The workers’ compensation judge specifically found that Blackwell had a long history of medical treatment for back pain and had been on narcotic pain medication for at least ten years prior to the accident, noting that “Mr. Blackwell has failed to prove that he has sustained any injuries greater than what he already had-wrong with him prior to |2August 14th of 2002, [and] that Mr. Blackwell is not entitled to receipt of any further indemnity benefits nor medical expense payments.”

The record reveals an exhaustive history of Blackwell’s treatment for back and neck pain which included at least ten years of narcotic pain medication prior to the accident at issue herein. The medical evidence also shows the skepticism of Blackwell’s physicians as he sought treatment for injuries alleged to be caused by the work-related accident. While he did show some objective signs of injury, Blackwell’s records overwhelmingly show inconsistent complaints, negligible objective findings, and what was described as a “severe chemical dependency;” additionally, his history reveals treatment for mental health and substance abuse symptoms. Most important, Blackwell had a pre-exist-ing back injury and long-standing chronic pain, both of which could have reasonably been the cause of his continuing complaints of back pain.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97) 696 So.2d 551, 556. In applying the manifest error standard, the appellate court determines whether the factfin-der’s conclusion was reasonable, not whether the trier of fact was right or wrong. Banks, 696 So.2d at 556. “[E]ven where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier, the court of appeal may not reverse if the factfin-der’s findings are reasonable in light of the record reviewed in its entirety.” Winford v. Conerly Corp., 04-1278, pp. 15-16 (La.3/11/05), 897 So.2d 560, 569-70.

|sWe find no manifest error in the decision rendered below. In oral reasons for judgment, the workers’ compensation judge reached the following conclusion:

Mr. Blackwell has failed to prove by preponderance of the evidence that any continuing complaints he had after the incident on August 14th of 2002 were related to the fall in this hole on that date, given his prior history of the same and similar complaints that he had subsequent to the accident, which were the same complaints he had previous to the accident.

After reviewing the record before us, we have determined that the factual conclusions reached by the workers’ compensation judge are reasonable and well-supported by the evidence. Accordingly, the judgment in favor of Heck Industries is affirmed. Costs of the appeal are assessed to the claimant, Arnold Blackwell.

AFFIRMED.


source: Caselaw Access Project

author: McDonald, j. McCLENDON, J.,

license: Public Domain

text:
    Allen Jay TODTENBIER v. Tara Lee TODTENBIER.
    No. 2010 CA 0304.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 27, 2010.

      Randy J. Fuerst, Lake Charles, Louisiana, for Plaintiff/Appellant/Appellee, Allen Jay Todtenbier.
    Wendy L. Edwards, Jack M. Dampf, Baton Rouge Louisiana, for Defendant/Ap-pellee/Appellant, Tara Lee Todtenbier.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

| ¡Allen Jay Todtenbier and Tara Lee Todtenbier were married in May of 2000, and in November of 2000 they had a daughter, Bailey Dean Todtenbier. In February of 2001, Mrs. Todtenbier was diagnosed with a large acoustic neuroma tumor situated on her brain stem that required an emergency craniotomy. Thereafter, Mrs. Todtenbier underwent two more craniotomies and a “gamma knife” radiation treatment to remove the acoustic neuroma. Due to ongoing complications, she later underwent a left eye corneal transplant and a second corneal transplant after a rejection of the first corneal transplant. She eventually underwent around thirty eye surgeries due to her ongoing complications with the left eye as a result of the nerve damage from surgery. Mrs. Todtenbier was left with deafness in her left ear, partial facial paralysis, and frequent, severe headaches, as well as an ongoing left eye condition that requires monitoring.

The Todtenbiers separated in October of 2005, and in January 2006 a petition for dissolution of the marriage was filed in Arizona. The Todtenbiers were divorced on September 1, 2006 in Arizona, but were living in Baton Rouge at the time of judgment. The judgment of divorce granted the parties joint custody of the child, with no designation of a domiciliary parent, but provided that the child should live primarily with Mrs. Todtenbier. The judgment further states:

THE COURT FINDS that Father left his job at Cisco Systems where he earned between $135,000 — $150,000 per year. The Court finds that Father presented evidence that although his leaving Cisco was voluntary, his position there was tenuous at best. The Court further finds that Father’s job change was for reasons other than in anticipation of dissolution of the marriage.
Accordingly, THE COURT FINDS that Father’s income for purposes of child support is $6,000 per month. However, the Court fully expects Father to continue to seek higher paying employment. When said employment occurs, Mother shall be entitled to an upward modification.
1¡¡Dr. Cavalier testified that he believed that Mother was disabled (as does the Social Security Administration) and not capable of working either full-time or part-time. Father failed to present evidence to refute Dr. Cavalier’s opinion. Accordingly,
THE COURT FINDS that Mother’s income shall be calculated at $1,027.00, which is her disability income.

The Arizona court ordered Mr, Todtenbier to pay Mrs. Todtenbier $1,250.00 per month in spousal support and $209.67 per month in child support, and ordered Mr. Todtenbier to pay Bailey’s tuition at St. James Episcopal Day School in Baton Rouge.

Mr. Todtenbier filed motions with the Arizona court for review or a new trial. The minute entries from January 29, 2007 in the Arizona court records indicate that the Arizona court denied his request for a modification of custody and denied his request to modify the spousal support award, and that thereafter, the parties stipulated that Mr. Todtenbier would pay for Bailey’s medical insurance, and that Mr. Todtenbier’s child support was set at $249.00 per month.

On December 14, 2007, Mr. Todtenbier filed a petition in the Family Court in East Baton Rouge Parish to modify custody, reduce child support, and terminate or reduce his spousal support obligation. Mrs. Todtenbier filed a motion to increase child support and spousal support.

By judgment dated August 18, 2009, the family court awarded the parties joint custody of Bailey, and named Mrs. Todtenbier as the domiciliary parent. Mr. Todtenbier was given visitation on Wednesday nights and every other weekend. As to the financial issues, after a hearing, the family court took the matter under advisement. Thereafter, the family court issued written reasons for judgment on 14July 9, 2009, finding no significant change in the circumstances of the parties, finding that Mr. Todtenbier was voluntarily underemployed, and finding that Mrs. Todtenbier was disabled such that employment would be difficult if not impossible to obtain. The family court denied Mr. Todtenbier’s motion for reduction or termination of spousal support, denied Mrs. Todtenbier’s motion to increase spousal support, modified the child support award to Mrs. Tod-tenbier to $339.10 per month, retroactive to February 3, 2009, and ordered Mr. Tod-tenbier to pay for and maintain Bailey’s health and hospitalization insurance. Further, the family court ordered that Bailey remain enrolled in St. James Episcopal Day School, and that retroactive to February 3, 2009, the percentage of the parties’ total monthly income attributable to Mr. Todtenbier was 72% and to Mrs. Todtenbier was 28%. Further, the court ordered that each party pay their percentage share of all mandatory fees and tuition required by Bailey’s enrollment in private school, and any and all medical, dental, and ocular expenses not covered by health insurance over and above the first $250.00 incurred per calendar year.

Mr. Todtenbier is appealing that judgment, asserting that the family court erred in finding him voluntarily underemployed and assigning him an earning capacity, in denying his motion for a reduction in child support, and in failing to reduce his spousal support.

Mrs. Todtenbier answered the appeal, asserting that the family court erred by attributing the Social Security Administration payment received by Mrs. Todtenbier on Bailey’s behalf (based on the earnings of Mrs. Todtenbier), as income to Bailey, in contravention of the terms of La. R.S. 9:315.7.

THE SPOUSAL SUPPORT ISSUE

Louisiana Civil Code article 114 provides that “An award of periodic support may be modified if the circumstances of either party materially change and 15shall be terminated if it has become unnecessary.” The trial court found that Mr. Todtenbier failed to show a significant or substantial change in either party’s financial situation and denied his request for a reduction or termination of his spousal support obligation.

Mr. Todtenbier argues that Mrs. Tod-tenbier has family help and support, yet the testimony established that Mrs. Tod-tenbier’s only income is social security disability and spousal support, and her employment opportunities are limited due to her disability. Mrs. Todtenbier’s stamina is limited also, and being a full-time mother to Bailey and dealing with her own medical issues appeal's to deplete her energy completely. Mr. Todtenbier has an MBA and prefers to work for himself in a start-up company rather than work for someone else, arguing that while he makes less money now, he has the potential to make more money later. We cannot say that the family court abused its discretion in finding no substantial change in either of the parties’ financial situation and denying Mr. Todtenbier’s request for a reduction or termination of his spousal support at this time.

THE CHILD SUPPORT ISSUE

Mr. Todtenbier asserts that the family court erred in failing to reduce his child support under La. R.S. 9:815.8 E, which provides in part:

(1) In cases of joint custody, the court shall consider the period of time spent by the child with the nondomi-ciliary party as a basis for adjustment to the amount of child support to be paid during that period of time.
| fi(2) If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than seventy-three days, the court may order a credit to the child support obligation. A day for the purposes of this Paragraph shall be determined by the court; however, in no instance shall less than four hours of physical custody of the child constitute a day.
(3) In determining the amount of credit to be given, the court shall consider the following:
(a) The amount of time the child spends with the person to whom the credit would be applied. The court shall include in such consideration the continuing expenses of the domiciliary party.
(b) The increase in financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support.
(c) The best interests of the child and what is equitable between the parties.

Under the circumstances of this case, we cannot say that the family court abused its discretion in declining to give Mr. Todten-bier a credit for the amount of time that he has physical custody of Bailey (every Wednesday after school to Thursday morning, and every other weekend, with more time during the summer and holidays), considering the record herein and, in particular, the parties’ specific agreement in the August 18, 2009 judgment that the formulation of the custody plan and granting of summer and holiday access would not constitute a change in circumstances or a ‘shared custodial plan’ for purposes of child support.

In addition to the support provided by the parents, Bailey receives $574.00 per month in social security payments. Mrs. Todtenbier asserts that the family court erred in crediting the Social Security Administration payment to Bailey, which is based on Mrs. Todtenbier’s disability and earnings, as income to Bailey to be deducted from the basic support obligation of the parties. Louisiana Revised Statutes 9:315.7 provides in pertinent part:

A. Income of the child that can be used to reduce the basic needs of the child may be considered as a deduction from the basic child support obligation.
|7B. The provisions of this Section shall not apply to income earned by a child while a full-time student, regardless of whether such income was earned during a summer or holiday break.
C. The provisions of this Section shall not apply to benefits received by a child from public assistance programs, including but not limited to Family Independence Temporary Assistance Programs (F1TAP), food stamps, or any means-tested program.
D. Notwithstanding the provisions of Subsection C of this Section, social security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earnings record it is based, by crediting the amount against the potential obligation of that parent.
E. In cases where there is a child support arrearage, the court shall grant an evidentiary hearing before any arrearage is reduced based upon any lump sum payments received by the child.

Clearly, under La. R.S. 9:315 D, the family court erred in crediting the monthly Social Security Administration payment to Bailey as income to Bailey and deducting it from the basic support obligation of the parties. See Flickinger v. Flickinger, 05-2228, pp. 4-6 (La.App. 1 Cir. 12/28/06), 952 So.2d 70, 73-74; Genusa v. Genusa, 09-0917, p. 6-8 (La.App. 1 Cir. 12/23/09), 30 So.3d 775, 779-780. While the Social Security Administration payment received by Bailey as a result of Mrs. Todtenbier’s disability is considered income to Bailey, such income is not to be applied as a deduction, but as a credit. The credit is not simply to be applied to the amount of basic child support owed, but shall be credited against the potential obligation of that parent for whose disability the child is receiving social security benefits. Genusa, 09-0917 at p. 7, 30 So.3d at 780.

Thus, the total child support obligation must be recalculated. When the payment of $574.00 to Bailey is removed as a credit on line 5e of the child support obligation worksheet, the total support obligation is $1,299.20, rather than $725.20.

Therefore, Mr. Todtenbier’s 72% share of the total child support obligation is $935.42, minus a credit of a direct payment of health insurance for Bailey in the Lamount of $185.00, which makes his monthly child support obligation $750.42, rather than $339.10, retroactive to February 3, 2009.

Mrs. Todtenbier’s child support obligation, based on her 28% of the combined monthly adjusted gross income, increases from $201.10 to $363.77. Her credit for Bailey’s Social Security Administration payment, $574.00, is larger than her child support obligation of $363.77,

Thus, we amend the family court judgment to reflect that Mr. Todtenbier’s monthly child support payment is increased to $750.42. In all other aspects, the family court judgment is affirmed. Costs of this appeal are assessed against Mr. Todtenbier.

AMENDED, AND AS AMENDED, AFFIRMED. ANSWER TO APPEAL GRANTED.

McCLENDON, J. concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

Iil note that LSA-R.S. 9:315.8(A) requires that extraordinary expenses, including tuition expenses, be added to the basic child support obligation to determine the total child support obligation. See LSA-R.S. 9:315.6. Accordingly, the expenses should be included in the calculations on the child support obligation worksheet. See LSA-R.S. 9:315.20. However, because the outcome would be unchanged, I respectfully concur with the result reached by the majority.

      . Pursuant to Arizona law and as noted by the court in Arizona, "at least one of the parties [had] been domiciled in the State of Arizona for more than 90 days immediately preceding the filing of the Petition.”

      . We note that the Arizona court did not consider Bailey’s social security payment in determining the child support obligation and that Mr. Todtenbier was unaware of that payment at the time.

      . At Mr. Todtenbier's request, the Arizona judgment was made executory and recognized in the state of Louisiana.

      . The custody issues and financial issues were bifurcated at Mr. Todtenbier’s request.

      . The judgment was signed on September 21, 2009.

      . The family court found that Mr. Todtenbier’s earning capacity was $6,000.00 per month, while Mrs. Todtenbier’s disability income was $1052.00 per month.

      . On the record before us, we further find no merit to Mr. Todtenbier’s claim that the purported brief length of the marriage (i.e., approximately 6½ years) was an important factor that was either never considered or was not given sufficient weight by the courts, as alleged by Mr. Todtenbier. In fact, the Arizona court judgment specifically states "The Court has considered the duration of the marriage (approximately 6 years).” Likewise, we find no abuse of discretion by the family court in refusing to find that his spousal support obligation should be reduced on the basis of the purported testimony of Dr. Cavalier which appellant argues would mandate such a modification. Instead, we find Dr. Cavalier’s testimony clearly supports the determination of the family court that no reduction or termination of the spousal support award was warranted.

      . As Mrs. Todtenbier is the domiciliary parent, this is her potential child support obligation, as she does not pay child support to Mr. Todtenbier.


author: McDonald, j.

text:
    Donald BROWN v. James LEBLANC, Secretary of Corrections and Louisiana State Board of Parole.
    No. 2010 CA 0491.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.
    Donald Brown, Kinder, LA, Plaintiff/Appellant in Proper Person.
    Patricia H. Wilton, Baton Rouge, LA, Attorney for Defendant/Appellee Louisiana State Board of Parole.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

| Jn the present case the district court dismissed the suit brought by the plaintiff, Donald Brown, for lack of subject matter jurisdiction. Mr. Brown appeals that judgment. We affirm the district court judgment.

Factual and Procedural History

In 1979, Mr. Brown was convicted of armed robbery and sentenced to fifty years imprisonment. Mr. Brown was released on parole supervision in 2000, under the provisions of La. R.S. 15:574.4(A)(2), after he had served twenty years in prison and had reached the age of 45. On March 5, 2008, Mr. Brown was arrested for a violation of the terms of his parole. Mr. Brown admitted to violating his parole and waived his right to a preliminary and final revocation hearing in front of the Parole Board in return for a chance to be placed in a six-month work release program. If Mr. Brown successfully completed the six-month work release program, he would be returned to active supervision. If, however, Mr. Brown was unable to successfully complete the program for any reason, his parole would be revoked based on his waiver of a final revocation hearing. Mr. Brown signed the waiver on March 26, 2008, and was admitted into the work release program on April 14, 2008.

On May 22, 2008, Mr. Brown was discharged from the work release program for an alleged rule violation. Based on his previous waiver of a final revocation hearing, his parole was revoked retroactive to March 26, 2008, and he was sent back to the prison system. In accordance with Mr. Brown’s previous waiver he was not given a hearing on the matter and was notified of the Parole Board’s decision by letter dated June 5, 2008. Later, Mr. Brown asserted that the ^charges against him for the rule violation were dropped. In response, Mr. Brown filed a “Request for Administrative Remedy” in February of 2009 with the Louisiana Department of Public Safety and Corrections (Department) seeking reinstatement into the work release program. This request was denied by the Department on the grounds that decisions of the Parole Board are not ap-pealable through the Administrative Remedy process. Mr. Brown then sought judicial review in April of 2009, claiming that he should be reinstated into the work release program and also seeking monetary damages for lost wages.

Mr. Brown’s complaint, written pro se, listed the Department as well as the Parole Board as defendants. Noting that the Department has no authority over decisions of the Parole Board, the district court dismissed Mr. Brown’s claims against the Department. As to the Parole Board, the district court allowed Mr. Brown to proceed with the appeal of his parole revocation, in accordance with La. R.S. 15:574.11, on the basis of his claim that he had been denied a final revocation hearing.

The Parole Board thereafter filed a motion to dismiss the appeal of his parole revocation, based upon a lack of subject matter jurisdiction. Upon further investigation of Mr. Brown’s claims, the district court dismissed the suit for lack of subject matter jurisdiction. In its reasons for judgment the district court found that Mr. Brown waited almost a year after notification of his parole revocation to bring his complaint. This was well past the ninety-day peremptory time limit provided in La. R.S. 15:574.11. Therefore, the district court found that Mr. Brown’s petition was untimely and that the district court lacked subject matter jurisdiction to hear the case. Mr. Brown is appealing the dismissal of his suit by the district court.

14Discussion

The only issue on appeal is whether the district court lacked subject matter jurisdiction over Mr. Brown’s suit which claims he was denied a final hearing before his parole was revoked. The Louisiana Code of Civil Procedure defines subject matter jurisdiction as the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. Louisiana Revised Statutes 15:574.11 establishes the process by which decisions of the Board of Parole may be appealed, and states that:

No prisoner or parolee shall have a right of appeal from a decision of the board regarding release or deferment of release on parole, the imposition or modification of authorized conditions of parole, the termination or restoration of parole supervision or discharge from parole before the end of the parole period, or the revocation or reconsideration of revocation of parole, except for the denial of a revocation hearing under R.S. 15:574.9. [footnote added.]

La. R.S. 15:574.11(A). The statute provides that the district court “shall have appellate jurisdiction over pleadings alleging a violation of R.S. 15:574.9.” La. R.S. 15:574.11(0). Further, the statute provides that petitions for review that allege a denial of a revocation hearing “shall be subject to a peremptive period of ninety days after the date of revocation by the Board of Parole” and petitions for review filed after this peremptive period “shall be dismissed with prejudice.” La. R.S. 15:574.11(D). Peremption is a period of time fixed by law for the existence of a right. La. C.C. art. 3458. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. Id. Additionally, peremption may not be renounced, interrupted, or suspended. La. C.C. art. 3461.

|Jn the present case, Mr. Brown was removed from the work release program in May of 2008 and was notified by letter dated June 5, 2008, that his parole was revoked retroactively to March 26, 2008. Although he did file a Request for Administrative Remedy with the Department in February of 2009, his petition for judicial review was not filed until April 15, 2009. Under these facts, it is clear that Mr. Brown’s rights, if any, were extinguished by his failure to file a petition within the ninety days allotted in La. R.S. 15:574.11(D). Even assuming, arguendo, that the date of Mr. Brown’s revocation was determined to be June 5, 2008, as opposed to March 26, 2008, and that the date of his petition was determined to be in February of 2009, as opposed to April 15, 2009, Mr. Brown still failed to bring his claim within the required ninety days. Consequently, his rights were extinguished and the district court lacked subject matter jurisdiction in this matter.

For the above reasons, the judgment of the district court is affirmed. Costs are assessed against Mr. Brown.

AFFIRMED.

      . Mr. Brown admitted that he had been present in a local bar.

      . Mr. Brown was cited for an aggravated sex offense relating to an incident where two other residents in the program were outside in a smoking area, then allegedly looked up at a window and saw Mr. Brown masturbating inside the residence.

      . Handwritten notations in the Department of Corrections records seem to indicate that the rule violation was dismissed after Mr. Brown was discharged from the work release program.

      . Mr. Brown’s claim for monetary damages against both defendants was also dismissed as it was not proper in an administrative appeal.

      . Louisiana Revised Statutes 15:574.9(A) states in part that ”[w]hen a parolee has been returned to the physical custody of the Department of Public Safety and Corrections, office of corrections services, the board shall hold a hearing to determine whether his parole should be revoked, unless said hearing is expressly waived in writing by the parolee. A waiver shall constitute an admission of the findings of the prerevocation proceeding and result in immediate revocation.”


author: PER CURIAM.

text:
    David R. BORDELON, Jr. v. WESTERN HERITAGE INSURANCE COMPANY and State Farm Mutual Automobile Insurance Company, et al.
    No. 2010 CW 0077.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Bobbie Monroe Bankston, Richard S. Thomas, Baton Rouge, LA, for Defendant/Relator State Farm Mutual Automobile Insurance Company.
    Gary M. Gaudin Lee J. Amedee, III Gonzales, LA for Plaintiff/Respondent David R. Bordelon, Jr.
    Before PARRO, KUHN, and McDonald, jj.
   PER CURIAM.

| ¡.Relator, State Farm Mutual Automobile Insurance Company (“State Farm”), filed this writ application seeking supervisory review of the district court’s judgment denying its motion for summary judgment. For the following reasons, we grant the writ and reverse the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

The plaintiff, David R. Bordelon, Jr., filed suit seeking recovery for damages sustained as a result of a motor vehicle accident which occurred on May 12, 2006. At the time of the accident, plaintiff was employed by and operating a vehicle provided by his employer, River City Air Conditioning, Inc. (“River City”). Plaintiff alleges that defendant, State Farm, has a policy of uninsured/underinsured motorist (“UM/UIM”) coverage applicable to the vehicle that he was operating. State Farm admits that it issued a policy of automobile liability insurance for the vehicle to River City, which was in effect from May 1, 2006, to May 1, 2007. The policy was issued on May 3, 2006, and listed a policy premium due for UM/UIM coverage. However, on May 8, 2006, Brigham Ragusa, owner/manager of River City, declined UM/UIM coverage, and a purportedly valid UM/UIM rejection form was executed and so reflects. An amended policy was then issued on May 15, 2006, reflecting no UM/UIM coverage. Also attached to the policy of insurance is a form entitled, 6080Q Vehicle Schedule, dated May 15, 2006, which shows that there is no UM/UIM coverage on any vehicle on this policy.

|sBrigham Ragusa attests in his affidavit that he did not contract with State Farm to provide UM/UIM insurance coverage on the River City vehicles, and he did not pay for this additional coverage. Moreover, Deidra Golphin, a State Farm representative, attested by affidavit that there was no UM/UIM insurance coverage applicable to the insurance policy at issue.

State Farm filed a motion for summary judgment, arguing that River City did not have UM/UIM insurance coverage on May 12, 2006, the date of the accident. State Farm argues that the May 8, 2006 UM/ UIM rejection form met all six requirements as set forth in the Louisiana Supreme Court opinion in Harper v. Direct Gen. Ins. Co., 2008-2874 (La.2/13/09), 2 So.3d 418, citing Duncan v. U.S.A.A. Ins. Co., 2006-0363 (La.11/29/06), 950 So.2d 544. Moreover, the policy was updated on May 15, 2006, reflecting no UM/UIM coverage on the policy.

The plaintiff opposed the motion, arguing that the UM/UIM rejection form was not effective on the date it was signed, because it must be signed contemporaneously with the issuance of the policy.

On October 13, 2009, the trial court denied the motion for summary judgment. The trial court’s written reasons for judgment state, in pertinent part:

Mr. Bordelon’s employer, who provided him with the vehicle, signed a UM rejection form on May 8, 2006, just four days before the accident at issue in this case. However, the policy which was in effect at the time of the accident was issued on May 3, 2006, and that policy included UM coverage. The new amended policy, which excluded UM coverage, was not issued until May 15, 2006, three days after the accident. The Court finds that the policy in effect on May 12, 2006, at the time of the accident, was the May 3, 2006 policy. Therefore, there was UM coverage on the vehicle driven by Mr. Bordelon, and State Farm’s Motion for Summary Judgment is denied.

State Farm contends that the trial court erroneously relied on “dicta” in the case of Futch v. Commercial Union Ins. Co., 625 So.2d 1019, 1020 (La.1993) to support its ruling. State Farm further contends that the trial court erred in disregarding Duncan, which holds that the date the UM form is signed is the date it is effective.

ISSUE PRESENTED FOR REVIEW

In connection with this writ application, there is only one issue for review and consideration: whether the trial court erred in finding that the UM/UIM rejection form at issue was not effective on the date it was signed.

LAW AND DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. Duncan, 950 So.2d at 546. The summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to accomplish those ends. La. Code Civ. P. art. 966(A)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 2002-0852, p. 5 (La.App. 1st Cir.5/9/03), 849 So.2d 675, 679, writ denied, 2003-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

In Louisiana, UM coverage is provided for by statute and embodies a strong public policy. Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987); A.I.U. Ins. Co. v. Roberts, 404 So.2d 948, 949 (La.1981). The | sobject of UM insurance is to provide lull recovery for automobile accident victims who suffer damages caused by a tortfeasor not covered by adequate liability insurance. Tugwell v. State Farm Ins. Co., 609 So.2d 195, 197 (La.1992); Henson v. Safeco Ins. Companies, 585 So.2d 534, 537 (La.1991); Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 578 (La.1982).

UM coverage is determined not only by contractual provisions, but also by applicable statutes. Duncan, 950 So.2d at 547. Thus, under the UM statute, the requirement of UM coverage is an implied amendment to any automobile liability insurance policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected. Id.

The UM statute is to be liberally construed and a rejection,of the coverage provided by law must be clear and unmistakable. Roger, 513 So.2d at 1130. The insurer bears the burden of proof that a rejection of coverage or a selection of lower limits has been legally perfected.

¡(¡We have reviewed the UM/UIM rejection form signed by Mr. Ragusa and find it is compliant with the six requirements set forth by the Louisiana Supreme Court in Duncan, and thus, is a facially valid waiver of UM coverage. Indeed, the plaintiff has not asserted that it is not. Instead, plaintiffs claim is that the form is ineffective, because it was not executed contemporaneously with the issuance of the policy. Impliedly, the trial court agreed with this assertion, because the trial court found that the May 3, 2006 policy, which provided UM coverage, was still in effect, because the amended policy was not issued until May 15, 2006, or after the accident occurred. Therefore, the trial court essentially found that the waiver signed by the insured on May 8, 2006, was ineffective on that date.

The plaintiff relies on Futch, 625 So.2d 1019, a case in which the validity of a waiver of UM coverage was at issue. The plaintiff in that case suffered devastating injuries in an automobile accident and claimed underinsured motorist damages from the excess/umbrella insurer of his employer, Manna International Manufacturing, Inc. The district court granted summary judgment in favor of the insurer, finding a valid rejection of UM coverage. The Fourth Circuit Court of Appeal affirmed.

The Louisiana Supreme Court reversed, with several justices dissenting and several concurring. The majority held that genuine issues of material fact remained, including whether the individual who executed the |7waiver, midway into the policy period, had the authority to do so. The majority, quoting from the version of La. R.S. 22:1406 D(l)(a) in effect at the time of the 1984 accident, reasoned that the “implication is that the rejection or selection must be contemporaneous with a policy application or the policy’s issuance.... Since the rejection or selection becomes part of the policy, it should not affect an existing policy.” Futch, 625 So.2d at 1022. In vacating the trial court judgment and remanding for a trial on the merits, the supreme court stated that even if Lemieux (the representative of the insured) were authorized to sign the rejection of UM coverage, it is doubtful that the rejection could alter the existing policy midway into the policy period. Id.

Justice Hall concurred in the result, but expressly noted that the effect of a waiver executed during the policy period is an issue that should be decided by the trial court on remand, without premature comment. Justice Kimball agreed that any discussion of whether a UM waiver may be valid if made after a policy’s issuance is “unnecessary dictum.” Justice Lemmon concurred, but expressly declined to join in the “dicta” regarding rejection of UM coverage. Id. at 1022-23. On rehearing, the court pointed out with emphasis that the decision merely reversed the summary judgment and “does not preclude the litigation of any issues of law or fact between the parties.” Id. at 1023.

Since then, the Futch “dicta” has been primarily cited with disapproval. However, plaintiff contends that this court followed the principle established in Futch in Henderson v. Maloid, 96-0285, 96-0286 (La.App. 1st Cir.11/8/96), 683 So.2d 342, writ denied, 96-2901 (La£/24/97),8 686 So.2d 866. In Henderson, the plaintiffs were the wife and children of the insured driver and a passenger killed in an automobile accident. Prior to his death, on November 16, 1988, the insured signed an application for insurance; however, the document did not include a demarcation indicating the selection/rejection of UM coverage. Almost five months later, an employee of the insurance agent contacted the insured concerning his failure to check off his selection. According to the employee, the insured instructed her that he had signed the form, that he did not want UM coverage, and that she should “just go ahead and check it and not to worry about it.” Pursuant to this purported instruction, the employee testified that she marked an “x” next to the selection rejecting UM coverage. Notably, the employee testified that she did not send a copy of the altered form, indicating a rejection of UM coverage, to the insured. Additionally, she did not note the alteration anywhere on the application or in the insured’s file. Nevertheless, she testified that the mark indicating a rejection in UM coverage “... must have been made sometime between March 3rd ... and March 8th.... ” Id. at 346. The insured (deceased) was obviously unavailable to corroborate this testimony. Indeed, no other witness was offered to corroborate the employee’s testimony. Under the tenuous facts of Henderson, this court concluded that there was not a valid waiver of insurance coverage.

We find the plaintiffs reliance on this court’s opinion in Henderson misplaced. Significant to this court’s ruling in Henderson was the feet that someone other than the insured the agent, marked the waiver rejecting UM | coverage. Moreover, no one connected with the insured testified that the waiver of coverage reflected the deceased insured’s intent. This court pointedly noted that under the facts of that case, there was not a valid waiver of UM coverage by the insured.

In contrast, in the instant case, Mr. Ra-gusa attested that he is the owner/manager of the insured business; that he is responsible for making all management decisions on behalf of the business; that he contracted with State Farm to insure a fleet of vehicles owned by the business; that he did not wish to have UM/UIM coverage for the vehicles; that he executed a waiver on May 8, 2006, reflecting his intent to waive UM/UIM coverage; and that he did not pay for nor was he charged for such coverage. Deidra Golphin, a State Farm employee for 17 years, attested that there was no UM insurance coverage applicable to the insurance policy at issue.

In fact, plaintiff has made no allegation that Mr. Ragusa did not sign or otherwise properly complete the rejection form. We observe that the form identifies the insured company, is signed by the legal representative for the company, is dated, the selection of no UM/UIM coverage is initialed, and the form contains the policy number and, therefore, is in compliance with the six tasks identified in Duncan.

Additionally, we distinguish Henderson on the basis that the version of the UM statute in effect at the time that rejection form was signed, La. R.S. 22:1406 D(l)(a)(i), has since been amended on several occasions. For example, at the time the Henderson rejection was initialed by the insurer’s |inemployee, each insurer designed its own form. Recognizing the problems inherent in allowing insurers to design their own UM forms, the statute was amended to provide that the selection or rejection be made only on a form prescribed by the commissioner of insurance. The validity of a waiver is determined by the law in effect at the time the waiver is executed. Roger, 513 So.2d at 1181-32. The version of the statute in effect at the time Mr. Ragusa signed the waiver, La. R.S. 22:680(1)(a)(ii), also contained additional language, which stated in pertinent part:

An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance.

The statute provides no temporal limitation for executing a UM selection/rejection form. Moreover, Henderson predates Duncan. In Duncan, the supreme court expressly proclaimed “... the insured dates the form to determine the effective date of the UM waiver.” Duncan, 950 So.2d at 552. Mr. Ragusa knowingly rejected UM/UIM coverage prior to the occurrence of the accident at issue and thus before the plaintiff had accrued any rights. As such, the UM/UIM rejection was effective to exclude such coverage, notwithstanding that the issuance of the amended policy, a formality, occurred after the date of the accident.

| n CONCLUSION

There is no provision in the UM statute that mandates the selection/rejection of UM coverage by an insured only at the application for or issuance of a policy. For the reasons assigned, we find Henderson is distinguishable from the case at issue. Accordingly, we reverse the judgment of the trial court rendered in open court on October 13, 2009, and signed on October 29, 2009, and render judgment granting State Farm’s motion for summary judgment, thereby dismissing State Farm from the litigation.

WRIT GRANTED. JUDGMENT REVERSED AND RENDERED.

      . The petition alleges that plaintiff struck a vehicle making a left turn in front of him. The driver of the other vehicle, Raymond E. Murry, Jr., was an alleged permissive user of a vehicle owned by Ascension Pony Cars. Western Heritage Insurance Company issued a policy of automobile liability insurance to Ascension Pony Cars. Murry and Western Heritage Insurance Company are also named defendants in the petition.

      . In addition to this writ application. State Farm tiled an appeal docketed as 2010 CA 0216. On March 26, 2010, this court dismissed the appeal, noting that the denial of a motion for summary judgment, an interlocutory judgment, is not an appealable judgment.

      . Louisiana Revised Statutes 22:680(l)(a)(ii), in effect at the time the waiver at issue was signed, provides:
      Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

      . In Duncan, 950 So.2d at 551-52, the Louisiana Supreme Court addressed the requirements necessary to a valid UM waiver. In closely examining the waiver form promulgated by the Commissioner of Insurance, the supreme court found that the prescribed form requires six tasks, all pertinent in rejecting UM coverage, as follows: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits arc chosen, then filling in the amount of' coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date. An insurer benefits from the rebut-table presumption that the insured knowingly rejected UM coverage when a form prescribed by the Commissioner of Insurance has been properly completed and signed. Such presumption exists because the prescribed form, if properly completed, clearly evidences the insured’s intent to waive UM coverage. Duncan, 950 So.2d at 552.

      . See, e.g. Boyd v. Schroeder, 98-0915 (La.App. 4th Cir., 2/10/99), 735 So.2d 672, writ denied, 99-1420 (La.9/3/99), 747 So.2d 543; White v. Shoalmire, 30, 158 (La.App. 2nd Cir. 1/21/98), 706 So.2d 588; and Deville v. Allstate Ins. Co., 96-161 (La.App. 3rd Cir. 10/9/96), 688 So.2d 1122.

      . The deceased, Vernon Oliver, worked for Auto Credit and was alleged to have been engaged in the course and scope of his employment at the time of the accident. Although Auto Credit, Oliver’s employer, was a sole proprietorship registered in the name of Oliver’s wife, his wife testified that he was integral to the dealership's operations, including insurance matters.

      . More recently, in Gray v. American National Property & Cas. Co., 2007-1670 (La.2/26/08), 977 So.2d 839, 848, the Louisiana Supreme Court recognized the inherent danger in allowing an insurance agent or insurance company employee to complete a UM selection form after it leaves the hands of an insured or insured's representative stating:

        “... [it] would provide an opportunity for an unethical agent or insurer to till in a lower UM coverage limit different from the amount the parties agreed upon. And, even the possibility that an agent or insurer could somehow manipulate the amount of coverage provided without the insured’s knowledge and/or consent undermines the purpose....”

      .In 1987 La. Acts No. 436, § 1, La. R.S. 22:1406 was amended to require that any rejection or selection of lower limits shall be made only on a form designed by each insurer. See Duncan, 950 So.2d at 548.

      . 1997 La. Acts, No. 1476 § 3, amended La. R.S. 22:1406(D)(l)(a)(ii) to so provide.

      . This language is also included in the current version of the statute; however, pursuant to 2008 La. Acts, No. 415 § 1, effective January 1, 2009, the current provisions of Title 22 of the Louisiana Revised Statutes of 1950 were redesignated into a new format and number scheme without changing the substance of the provisions. Pursuant to the redesignation, La. R.S. 22:680 was renumbered and the UM coverage statute is now codified in La. R.S. 22:1295(l)(a).

      . See Washington v. Savoie, 92-2957 (La.4/11/94), 634 So.2d 1176 (the Louisiana Supreme Court held that a valid rejection of or reduction in UM coverage may occur after issuance of an insurance policy although, under the facts of that case, the court disallowed the correction or reformation of the UM coverage rejection form to reflect the parties intent after the occurrence of injuries to insureds under the policy).

      . See, e.g., Badeaux v. Cook, 537 So.2d 725 (La.App. 5th Cir.1988), writ granted, 538 So.2d 603 (La.1989), writ dismissed, (May 22, 1989) (the insured executed a waiver reducing UM limits from $500,000 to $50,000, but the policy was not endorsed to reflect the change prior to the accident. The majority held that the reduction was effected upon execution of the waiver, notwithstanding a policy provision requiring that "the policy may not be changed or waived except by endorsement issued by the insurer.”); see also Alexander v. Allstate Ins. Co., 493 So.2d 677 (La.App. 2nd Cir.1986) (a rejection signed three months after the issuance of the policy was effective; the form of UM waiver was controlled by statute and not by a policy provision which required that all changes be made by endorsement).


author: PETTIGREW, J.

text:
    STATE of Louisiana v. Antonio TYSON.
    No. 2010 CA 0866.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.
    Rehearing Denied Nov. 30, 2010.

      Hon. Walter P. Reed, District Attorney, Covington, LA, Kathryn W. Landry, Baton Rouge, LA, for State of Louisiana.
    Antonio Tyson D.O.C., Angie, LA, Defendant-Appellant Pro Se.
    Before KUHN, PETTIGREW, JJ., and KLINE, J. Pro Term

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore pursuant to special appointment of the Louisiana Supreme Court.

   PETTIGREW, J.

UAntonio Tyson, an inmate at Rayburn Correctional Center in Angie, Louisiana, appeals the district court’s denial as untimely his motion seeking the return of certain items of property seized by law enforcement following his arrest on December 7, 1991. For the reasons that follow, we hereby vacate the judgment and remand for further proceedings.

In December 1991 and January 1992, search warrants were issued and executed for the residence and person of Antonio Tyson, defendant herein. Pursuant to said warrants, certain property was seized. On January 22, 1992, Mr. Tyson was charged by grand jury indictment with one count of aggravated rape, one count of armed robbery, and one count of burglary. Mr. Tyson pled guilty on October 18, 1998, to one count of forcible rape, one count of armed robbery, and one count of burglary, and was sentenced to forty years imprisonment.

On September 22, 2008, Mr. Tyson, appearing in proper person, filed a pleading entitled, “Return of Seized Property”, wherein he sought the return of $1,500.00 dollars in cash together with certain unspecified items of jewelry and other personal items and effects. Mr. Tyson claimed said items were seized from the residence of his mother where he was living at the time of his arrest. Mr. Tyson further alleged that more than 16-1/2 years had elapsed since his arrest and that no forfeiture hearing had ever been held. On September 30, 2008, the trial court, ex parte, and without a hearing, denied said motion on the grounds it was not timely filed. Upon receiving notice of judgment, Mr. Tyson filed a Notice of Intent to Seek Writs on December 5, 2008. This court, on July 9, 2009, granted Mr. Tyson’s writ and remanded this matter to the trial court with instructions that Mr. Tyson be granted an appeal.

The issue raised in connection with this appeal concerns the timeliness of Mr. Tyson’s claim for return of his property allegedly seized by law enforcement.

|3In his pro se brief to this court, Mr. Tyson has put forth a supplemental argument asserting that his previous counsel filed a motion on November 22,1993, seeking the return of unspecified personal effects seized by law enforcement at the time of his arrest, and that his present request is therefore timely. The State alleges in response that the 1993 motion filed on behalf of Mr. Tyson sought the return of personal effects seized by law enforcement was not the pro se motion at issue in this appeal wherein Mr. Tyson seeks the return of seized property. The State further states that in contravention of La. R.S. 15:41, the 1993 motion was never served upon the State and failed to request a contradictory hearing. In conclusion, the State contends that because the request at issue herein was not made within two years from the date of seizure, the trial court properly concluded the request was untimely.

Louisiana Revised Statute 15:41(B) governs the disposition of property seized in connection with a criminal proceeding in cases where there is no specific statute concerning the disposal of property not to be used as evidence, or no longer needed as evidence. In 1991, the date of the seizure in this case, La. R.S. 15:41(B)(2)(a), provided that if the owner of noncontra-band property did not claim it within two years after its seizure, the court was required to order a sale of the property at a nonjudicial public sale or auction. The proceeds of the sale were to be administered by the court and used exclusively for the maintenance, renovation, preservation, or improvement of the court building, facilities, or records system. Taiae v. City of Baton Rouge, 00-0915, p. 5 (La.App. 1 Cir. 6/22/01), 808 So.2d 677, 681. This statute must be construed in favor of maintaining an owner’s property rights because of the explicit constitutional directive that “[p]er-sonal effects shall never be taken.” La. Const. Art. 1, § 4. Because there is no express provision that an owner abandons all rights if no claim is made within two years, the time limit of La. R.S. 15:41(B)(2) must be interpreted as a minimum period before a |4court may act to dispose of the seized property. State v. Baynes, 96-0292, p. 5 (La.App. 4 Cir. 7/31/96), 678 So.2d 959, 961-962 (underscoring supplied); see also, Taiae, 00-0915 at 5, 808 So.2d at 681. The statute does not set an outside time limit within which an owner of noncontraband property must assert a claim for the property’s return. Taiae, 00-0915 at 5, 808 So.2d at 681.

In Taiae and Baynes, and later in Owens v. Book, 01-1151, p. 4 (La.App. 3 Cir. 3/6/02), 809 So.2d 1217,1219, the owners of property seized by law enforcement six, eight, and eleven years earlier respectively, which had neither been returned nor otherwise disposed of pursuant to a valid court order, were allowed to assert claims for the return of their property. We are further mindful of State v. Foster, 08-2545, (La.App. 1 Cir. 6/12/09) 43 So.3d 200, a case in which a panel of this court distinguished the Taiae case from the facts presented in Foster.

In the instant matter, the trial court signed an ex parte order dismissing Mr. Tyson’s motion seeking the return of items allegedly seized by law enforcement without a hearing due to untimeliness. Neither the State nor Mr. Tyson was given the opportunity to make a showing as required by La. R.S. 15:41(B)(2) that the seized property was contraband or that the court entered an order disposing of the property after the 2-year retention period had lapsed. Under the facts of this case, we are compelled to conclude the trial court dismissed Mr. Tyson’s petition because the trial court was of the opinion that Mr. Tyson’s claim had prescribed. Louisiana Code of Civil Procedure article 927 provides, in part, “B. The court may not supply the objection of prescription, which shall be specially pleaded.... ” The trial court committed legal error by ex parte raising the issue of prescription on its own. For this reason, we must vacate the trial court’s order of September 30, 2008, and remand this matter to the trial court for further proceedings.

Having found that Mr. Tyson has established his right to proceed by contradictory hearing for the return of his alleged property seized by law enforcement, we note that he has not complied with the procedural requirements. Louisiana Revised Statute 15:41(C) specifies that a motion for the return of property seized in connection with a criminal proceeding shall be heard contradictorily with the clerk of court. The record before this 15court does not indicate that the St. Tammany Parish Clerk of Court was made a party to any hearing regarding the disposition of this property. As Mr. Tyson has alleged the Covington Police Department, and in his earlier pleading, the St. Tammany Parish Sheriffs Office, had custody of property belonging to him, the City of Covington and possibly the St. Tammany Parish Sheriffs Office should also be made parties to this proceeding.

CONCLUSION

Accordingly, the trial court’s September 30, 2008 judgment denying Mr. Tyson’s motion seeking the return of his property is hereby vacated. This matter is remanded to the trial court for a contradictory hearing at which the St. Tammany Parish Clerk of Court, the City of Covington, and possibly the St. Tammany Parish Sheriffs Office shall be directed to show cause why the $1,500.00 dollars in cash together with certain unspecified items of jewelry and other personal items and effects allegedly seized from Mr. Tyson at the time of his arrest should not be returned to him. Costs associated with this appeal in the amount of $826.50 shall be assessed against the State of Louisiana.

JUDGMENT VACATED; CASE REMANDED.

KUHN, J. concurs.

      . See, Antonio Tyson v. State of Louisiana, 2009 CW 0135 (La.App. 1 Cir. 7/9/2009).

      . In 1999, the legislature amended La. R.S. 15:42(B)(2) to change the time period within which the court is precluded from taking action regarding seized noncontraband property from two years to six months. 1999 La. Acts No. 1195, § 1. We apply the version of the statute in effect at the time of the seizure. See State v. Lamb, 31,919 (La.App. 2 Cir. 5/7/99), 732 So.2d 1270, 1274.


author: PARRO, J.

text:
    Steven SMEGAL v. Chandra GETTYS.
    No. 2010 CA 0648.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Stephen D. London, Donald L. Hyatt, II, New Orleans, LA, for Plaintiff-Appellant/Appellee, Steven Smegal.
    Christopher M. G’sell, Bienvenu, Foster, Ryan & O’Bannon, LLC, New Orleans, LA, for Defendants-Appellees/Appellants, Chandra Gettys and Louisiana Citizens Property Insurance Corporation.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

Un this case arising out of a dog bite, Steven Smegal appeals a judgment finding him 50% at fault in causing the incident that resulted in his injuries. The dog’s owner, Chandra Gettys, and her insurer, Louisiana Citizens Property Insurance Corporation (Citizens), answered the appeal, seeking a reduction in the general damage award and challenging the trial court’s finding that Ms. Gettys was liable or, in the alternative, that Mr. Smegal was only 50% at fault in causing the incident. For the following reasons, we affirm the judgment.

FACTUAL BACKGROUND

On October 18, 2006, Ms. Gettys allowed her golden retriever, Jake, to leave the house and wander about in her yard without a leash. Jake was wearing a “shock collar,” which Ms. Gettys could control with a handheld remote control. As she watched him through her kitchen window, Jake moved out of the side yard and toward the road along the front of the yard. Although she pressed the remote control to warn him to stop, he did not heed the warning “beep” or the actual shock, but continued onto and across the street. Ms. Gettys then went out in the yard and began calling Jake to return home. As she did so, a school bus was moving along the street, dropping off children. When the bus accelerated, Jake began running alongside it and eventually darted across the street in front of the bus, heading in the direction of his home. Unfortunately, Jake did not clear the bus, but was hit in his hind quarters and collapsed with serious injuries in the middle of the street.

Ms. Gettys screamed and ran inside to tell her son, David, to phone the police for help. Then they both ran back toward where Jake was lying in the middle of the street. Mr. Smegal, their neighbor from across the street, also began moving down his driveway toward the injured dog. Jake could not use his back legs, but was using his front legs to raise himself up, and was then flopping back down as he attempted to move away from everyone. Ms. Gettys and David were approaching Jake slowly, holding their hands out in front of them with palms down, talking to him, and trying to Rget him to calm down and be still. Mr. Smegal also continued moving toward the dog while telling him to stay down. At some point, David got too close to Jake, and the dog snapped at him, biting his hand. David then told both Ms. Gettys and Mr. Smegal to stay back. About a minute later, when Mr. Smegal was just several feet away from the dog, Jake lurched toward him and bit him in the left ankle. Jake hung on and was dragged behind Mr. Smegal as he hopped on one leg, trying to get away. Eventually, Jake let go and, after moving a few steps further, Mr. Smegal fell to the ground at the end of his driveway. Both the dog and Mr. Smegal received immediate medical attention for their injuries, and both eventually recovered.

Mr. Smegal sued Ms. Gettys and Citizens, seeking damages for the injuries he had suffered as a result of the dog bite. After a bench trial, the court found that Ms. Gettys was strictly liable for the actions of her dog and that Mr. Smegal had not provoked Jake into biting him. The court also noted that even if Mr. Smegal’s actions could be considered provocation, in which case strict liability would not be applicable, Ms. Gettys was also negligent in failing to confine and restrain Jake on a leash, as was required by parish ordinance and state law, and this negligence was a direct and proximate cause of Mr. Sme-gal’s injuries. The court awarded Mr. Smegal $19,775.94 in medical expenses, to which both parties had stipulated, and awarded $20,000 in general damages for pain, suffering, scarring, and disfigurement. The court further found that Mr. Smegal was also negligent in approaching the obviously injured dog, particularly when he knew from his training as a member of the New Orleans Police Department that the appropriate thing to do was to stay far away from an injured animal. Accordingly, he assigned 50% of the fault to Mr. Smegal.

Mr. Smegal contends in this appeal that the court erred in allocating 50% comparative fault to him, because he simply underestimated the injured dog’s ability to get close enough to bite him. Ms. Gettys and Citizens answered the appeal, claiming that she was not strictly liable for Mr. Smegal’s injuries, because his actions provoked Jake to bite him. They further argue that the severely injured dog lying in the middle of Rthe street did not present an unreasonable risk of harm to Mr. Smegal, who unnecessarily placed himself in harm’s way by moving within just a few feet from Jake. They also claim that any negligence of Ms. Gettys was not the proximate cause of Mr. Smegal’s injuries, because his actions were a superseding and intervening cause of those injuries. Finally, they contend that the general damage award was excessive.

APPLICABLE LAW

Standard of Review

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Morris v. Safeway Ins. Co. of Louisiana, 08-1861 (La.App. 1st Cir.9/17/04), 897 So.2d 616, 617, writ denied, 04-2572 (La.12/17/04), 888 So.2d 872. The Louisiana Supreme Court has posited a two-part test for the appellate review of facts in order to affirm the factual findings of the trier of fact: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Moss v. State, 07-1686 (La.App. 1st Cir.8/8/08), 993 So.2d 687, 693, writ denied, 08-2166 (La.11/14/08), 996 So.2d 1092. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Hulsey v. Sears, Roebuck & Co., 96-2704 (La.App. 1st Cir.12/29/97), 705 So.2d 1173, 1176-77.

|sWith regard to questions of law, appellate review is simply a review of whether the trial court was legally correct or legally incorrect. Hidalgo v. Wilson Certified Exp., Inc., 94-1322 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 116. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. In re Mashburn Marital Trust, 04-1678 (La.App. 1st Cir.12/29/05), 924 So.2d 242, 246, writ denied, 06-1034 (La.9/22/06), 937 So.2d 384.

Strict Liability of Dog Owners

The liability for damage caused by animals is governed by LSA-C.C. art. 2321, which, after its amendment by 1996 La. Acts, 1st Ex.Sess., No. 1, § 1, states, in pertinent part:

The owner of an animal is answerable for the "damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. (emphasis added).

In the case of Pepper v. Triplet, 03-0619 (La.1/21/04), 864 So.2d 181, the Louisiana Supreme Court reviewed the history of Article 2321 and significant jurisprudence interpreting its provisions. It noted that in Holland v. Buckley, 305 So.2d 113, 119 (La.1974), the court interpreted the version of Article 2321 then in effect and concluded that the owner of the animal was presumed to be at fault and could only exculpate himself by proving that the harm resulted from some independent cause not imputable to him. Applying that principle, the court imposed liability on the owner of a dog that had bitten the plaintiff, despite the lack of any evidence of the owner’s fault, |(¡because the owner did not rebut the presumption of fault created by the injury caused by the dog. Pepper, 864 So.2d at 188. In a later case, Boyer v. Seal, 553 So.2d 827, 834 (La.1989), the court backed away from the almost absolute liability of Holland by applying the unreasonable risk of harm principle to animals, which posits that the damage must have been caused by a vice or aspect of the thing that creates an unreasonable risk of harm to others, citing the strict liability provisions of LSA-C.C. art. 2317, as interpreted by Loescher v. Parr, 324 So.2d 441, 449 (La.1976). The Boyer court stated, “Subsequent to Loescher, this court has not allowed recovery for damage by a domestic animal in the absence of proof that the injury resulted from an unreasonable risk of harm created by the animal.” Boyer, 553 So.2d at 833. Reviewing this decision in the Pepper case, the court stated:

Essentially, then, Boyer applied the unreasonable risk of harm principle to animals in order to limit strict liability against their owners because of the competing social policy that the owner of an animal should not be required to insure against all risks and because the court had been applying the same or similar principle to things and buildings.

Pepper, 864 So.2d at 190.

The Pepper court then analyzed the 1996 amendment to Article 2321 and concluded that, although the legislature added the phrase, “which the owner could have prevented,” and did not include the term, “unreasonable risk of harm,” the court did not read that language “as an expansion of liability toward a superstrict or absolute standard” to be applied when a dog causes injury. Pepper, 864 So.2d at 194. The court concluded that the amendment effected no practical change in how the courts should apply Article 2321 to dog claims, stating:

[T]he legislature’s 1996 amendment of Article 2321 simply changes the law to make Holland and the strict liability doctrine no longer applicable to animals other than dogs. Furthermore, as we explained in Boyer, the unreasonable risk of harm principle represented, in effect, a limitation, albeit perhaps a partially jurisprudential one, upon the reach of strict liability, so the owner of an animal is not required to insure against all risk or loss. We detect no legislative retreat from that principle in the 1996 amendment to Article 2321.

Pepper, 864 So.2d at 195. The court further summarized its conclusions concerning the elements of a claim under Article 2321 as follows:

| 7[T]o establish a claim in strict liability against a dog owner under La. Civ.Code art. 2321 as amended in 1996, the plaintiff must prove that his person or property was damaged by the owner’s dog, that the injuries could have been prevented by the owner, and that the injuries did not result from the injured person’s provocation of the dog. We hold that, to establish that the owner could have prevented the injuries under Article 2321, the plaintiff must show the dog presented an unreasonable risk of harm.

Pepper, 864 So.2d at 184. The criterion for determining whether a defendant has created or maintained an unreasonable risk of harm is a balancing of claims and interests, a weighing of the risk and gravity of harm, and a consideration of individual and societal rights and obligations. Id. at 195-96; see also Thibodeaux v. Krouse, 07-2557 (La.App. 1st Cir.6/6/08), 991 So.2d 1126, 1129.

The supreme court then described the factual situation before it in the Pepper case and applied the principles of Article 2321 to the case, stating:

Under the facts of this case, until the plaintiff intentionally and knowingly entered the defendant’s backyard without authority, the defendant’s dog did not present an unreasonable risk of harm to the plaintiff or the public. Securing dogs in [their yards] is what is expected of [dog owners] — it protects the dogs and it protects the innocent public. When a person who knows the security measures established by the owner, having abided by them in the past, nevertheless breaches that security, he eliminates the dog’s isolated environment and, in essence, turns the dog loose upon himself. This is not a case of a dog running down the street unfettered to prey upon the public. The owner secured the dog against contact with outsiders by enclosing the dog within the fence and, with regard to his neighbors, by notice to the plaintiffs mother, an adult in that household, that the dog had previously bitten a child that had entered the defendant’s yard through the plaintiffs yard. Secured, the dog posed no unreasonable risk of harm. Secured, the dog also was not subject to provocation. Secured, the dog was able to guard and protect his master’s home with no undue risk of harm to the innocent public. By breaching the security that the dog’s owner had created, the plaintiff negated that security. After balancing the various claims and interests, weighing the risk to the public and the gravity of harm, and considering individual and societal rights and obligations, we conclude that, under the facts of this case, the dog did not pose an unreasonable risk of harm. Accordingly, the plaintiff failed to establish a claim against the defendants in strict liability pursuant to Article 2321.

Pepper, 864 So.2d at 197-98.

Comparative Fault

Louisiana Civil Code article 2328 governs the application of comparative fault. It states, in pertinent part:

|8A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

The Louisiana Supreme Court analyzed the applicability of comparative fault in strict liability cases under Article 2321 in the case of Howard v. Allstate, 520 So.2d 715 (La.1988). The court noted that before the legislature rewrote Article 2323 establishing comparative fault, the only defenses to cases arising under Article 2321 were (1) fault of the victim, (2) fault of a third person, or (3) irresistible force, citing Rozell v. Louisiana Animal Breeders Coop., Inc., 496 So.2d 275, 279 (La.1986). Howard, 520 So.2d at 718. After reviewing the language of Article 2321, the court stated:

[W]e hold that comparative fault applies in cases such as this where a domesticated animal inflicts injuries for which its owner is held liable under art. 2321. It seems only fair that the damages recovered by negligent victims in dog bite cases should be reduced by their percentage of fault.

Howard, 520 So.2d at 718-19. The court recognized, however, that because strict liability is based on a theory of responsibility that requires no finding of negligence or culpability on the part of the defendant, the theory of strict liability does not lend itself to a comparison of culpability. Resolving the “conceptual difficulty in comparing the two types of legal fault,” the court stated:

19[T]he most satisfactory result to this problem seems to be the principle of comparative causation. Under this principle, the factfinder compares the causal effect of the plaintiffs conduct with that of the defendant’s nonnegligent fault.... Thus, the extent to which each party contributed to the damages should be the measure by which the loss is apportioned.

Howard, 520 So.2d at 719.

The trier of fact is owed some deference in allocation of fault, since the finding of percentages of fault is a factual determination. Duncan v. Kansas City S. Ry. Co., 00-0066 (La.10/30/00), 778 So.2d 670, 680-81, cert. dismissed, 582 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Thus, a trier of fact’s allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. See Stobart, 617 So.2d at 882. Allocation of fault is not an exact science or the search for one precise ratio, but rather an acceptable range, and any allocation by the fact finder within that range cannot be clearly wrong. Foley v. Entergy Louisiana, Inc., 06-0983 (La.11/29/06), 946 So.2d 144, 166. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the apportionment, and then only to the extent of lowering it or raising it to the highest or lowest point respectively that is reasonably within the trier of fact’s discretion. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 611.

In determining the percentages of fault, the trier of fact should consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985). These same factors guide the appellate court’s evaluation of the respective fault allocations. See Clement, 666 So.2d at 611.

| inGeneral Damages

In the assessment of damages in cases of offenses and quasi-offenses, much discretion must be left to the trier of fact. LSA-C.C. art. 2324.1. In reviewing an award of general damages, the court of appeal must determine whether the trier of fact has abused its much discretion in making the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Id. at 1261. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976).

ANALYSIS

Strict Liability of Ms. Gettys

Before turning to the issue of whether the court erred in allocating 50% fault to Mr. Smegal, we must determine whether, as Ms. Gettys and Citizens assert, the trial court erred in finding her strictly liable under the facts of this case. They claim that Jake did not present an unreasonable risk of harm, because he was severely injured and immobilized in the street. However, the facts reveal that, despite his serious injuries, Jake was not totally immobilized, but was able to prop himself up on his front legs and stagger or lurch in one direction or another, dragging his hind legs. Ms. Gettys testified that Jake was “moving around” by picking himself up on his front paws and then falling over to one side or the other, trying to get away from everyone who was approaching him. He managed to nip David’s hand. Then, within about a minute, he was able to move quickly enough in Mr. Smegal’s direction to bite his ankle and was strong enough to hold on while Mr. Smegal hopped six to eight feet, trying to shake him loose. After his grip on Mr. Smegal’s ankle was broken, Jake continued to flop |1Thimself away from people who were gathering, eventually moving close enough to the slope of the ditch along Mr. Sme-gal’s side of the street to slide into the ditch, where he remained until an animal control officer picked him up and carried him out. Jake’s veterinarian, Dr. Christine McDonald, testified that a severely injured dog is very likely to try to protect itself by trying to get away from the source of any threat or by biting to defend itself. She said that under circumstances in which the dog is unable to move away quickly, it is “very likely” for the dog to try to bite someone who approached.

Given this evidence, the trial court had a reasonable factual basis for concluding that Jake presented an unreasonable risk of harm. His severe injuries made him more dangerous, rather than less so. Society’s strong interest in having dogs adequately restrained is demonstrated in laws and ordinances that have been passed to prevent them from running loose in the streets. Louisiana Revised Statute 3:2771 states that no person shall permit any dog in his possession or kept on his premises to run at large on any unenclosed land or to trespass on any enclosed or unenclosed land belonging to others. The “leash law” in the St. Tammany. Parish Code of Ordinances makes it unlawful for anyone to permit a dog in his possession to run loose or at large on any street, sidewalk, alleyway, highway, or any unenclosed land while not under the immediate control of a competent person and restrained by a substantial chain or leash. The ordinance further states that “electronic leashes” using an electrical charge as a means of restraint may not serve as a replacement for a tangible chain or leash.

Such laws and ordinances reflect the understanding that dogs can be aggressive and can seriously injure or even kill persons by repeated biting. Moreover, they can create danger simply by running about, such as when drivers swerve to avoid hitting them in the street or, as in this case, when the dog is actually hit by a vehicle. These are not inconsequential concerns. Moreover, as the facts of this case illustrate, an otherwise docile and friendly animal can become very dangerous when injured. Even the animal’s owners or those who are accustomed to treating animals are at risk for |12injury and must exercise caution when dealing with an injured or stressed dog. Therefore, the risk is high, and the possible damage is severe.

Balanced against these serious concerns is the relatively simple control measure of keeping the dog leashed or fenced, which would have prevented this situation from occurring. Ms. Gettys testified that in the past, Jake had escaped from the fenced yard by digging under the fence and had also managed to pull loose when tethered in the yard. Therefore, Jake’s strong inclination to roam was known to her, and she could have anticipated that the “shock collar” might not restrain him. Although it may have been inconvenient for her to keep Jake on a leash and accompany him every time he needed to relieve himself, that inconvenience is minor when compared to the risks of allowing him to run loose. Unlike the facts presented in the Pepper case, this is a case of “a dog running down the street unfettered to prey upon the public.” Cf. Pepper, 864 So.2d at 198-99. Therefore, the court did not err in finding that Jake posed an unreasonable risk of harm under the facts of this case.

Ms. Gettys and Citizens further argue that she should not have been found strictly liable, because Mr. Smegal’s injuries resulted from his provocation of Jake by continuing toward him, when the dog was clearly trying to get away. The record does not support this argument. All the eyewitnesses to the incident testified that Mr. Smegal was approaching Jake slowly and quietly, trying to calm him by telling him to stay down. Ms. Gettys and David were also approaching the injured dog, talking to him and trying to get him to be still and calm down so he would not injure himself further. According to Ms. Gettys, David was bitten when he tried to go to Jake and get hold of him to keep him down. Therefore, if Mr. Smegal’s actions should have been considered provocation, his owners’ actions were equally provocative. We find no factual or legal error in the court’s conclusion that Mr. Smegal’s injuries did not result from his provocation of Jake. Therefore, strict liability for Jake’s actions was not precluded under LSA-C.C. art. 2321.

| Allocation of Fault

Turning to the allocation of fault, we note that the trial court stated the following in its written reasons for judgment:

The court further finds that plaintiff was also at fault and bears some responsibility for his injuries. The defendant’s dog was obviously injured and in distress when plaintiff appeared in the front of his house to help. Plaintiff had the ability to avoid injury in this case by staying a sufficient distance from the dog to avoid any unpredictable actions by the dog, including an attack. Furthermore, plaintiff testified that as a longterm member of the NOPD he was trained that when dealing with an injured animal the appropriate thing to do is to stay away from the animal and call Animal Control to come pick up the animal. Plaintiff violated this tenet of his profession when he placed himself in a position where he could be injured by the dog. Therefore, the court finds that plaintiff should be apportioned fault.
The court has considered the nature of the conduct of both the defendant and plaintiff and the causal relation between the conduct and the damages claimed. Having considered the extent to which each party contributed to plaintiffs damages, the court finds that both plaintiff and defendant were 50% at fault, (citation omitted).

Mr. Smegal contends in this appeal that the court erred in assigning any fault to him, claiming that his encounter with Jake occurred at or near his own property, rather than on Ms. Gettys’ property, a fact which distinguishes this situation from that described in the cases that have applied comparative fault to the victim of a dog bite. Ms. Gettys and Citizens, on the other hand, contend that Mr. Smegal’s actions constituted an interceding and superseding cause of his injuries, for which the court should have assigned 100% of the fault to him.

Ms. Gettys’ failure to restrain Jake by means of an enclosure or a leash was the ultimate cause of this incident. By allowing him to roam freely about the neighborhood, she exposed him to the risk of being hit by a passing vehicle and also exposed persons in the area to whatever propensities he might have for aggressive behavior, whether injured or not. As previously discussed, the risks inherent in her conduct were considerable and the means of preventing it were not burdensome, but merely inconvenient. Moreover, as the owner of the dog, she was the only person who had the ability to keep him on her property or on a leash. Yet, Mr. Smegal’s conduct was also a contributing factor to his injuries. He could have completely and easily removed 114himself from the area of danger by staying a sufficient distance away from the obviously injured and distressed dog. Instead, he approached within Jake’s reach, despite his training and knowledge as a police officer of the safe response to this dangerous situation. Either Ms. Gettys or Mr. Smegal could have completely avoided this unfortunate incident for all concerned; neither did so. Rather, both engaged in conduct that ultimately resulted in Jake’s biting Mr. Sme-gal.

The fault of a third person, which will exonerate a person from his own obligation importing strict liability, is that which is the sole cause of the damage, in the nature of an irresistible and unforeseen occurrence, ie., where the damage resulting has no causal relationship whatsoever to the fault of the owner. See Kose v. Cablevision of Shreveport, 32,855 (La.App. 2nd Cir.4/5/00), 755 So.2d 1039, 1046, writ denied, 00-1177 (La.6/16/00), 764 So.2d 964. That is not the case in the matter before us. While Mr. Smegal’s actions clearly brought him into the zone of danger, his actions were not the sole cause of his injuries and did not constitute an interceding and superseding cause of his injuries.

Based on our review of the evidence, we find that the trial court’s allocation of 50% fault to Ms. Gettys and 50% fault to Mr. Smegal is within an acceptable range. Therefore, that allocation cannot be clearly wrong.

General Damages

Ms. Gettys contends the award of $20,000 in general damages to Mr. Smegal was excessive. We review the record to determine whether the trial court abused its discretion in making this award.

The bite on Mr. Smegal’s left ankle resulted in immediate, severe pain. Jake hung on while Mr. Smegal tried to break his hold by hopping away. After the dog detached from his ankle, Mr. Smegal’s injured ankle gave out. He fell and crawled several more feet away from the dog, where he collapsed. The emergency personnel who first arrived at the scene took his blood pressure reading and indicated he was going into shock, so they began administering oxygen. Mr. Smegal said he was very | ^nauseous and thought he was going to pass out. When the Acadian ambulance crew arrived, they confirmed that he was in shock and continued the oxygen until he was stabilized. They •wrapped his foot, and his wife drove him to the emergency room of St. Tammany Hospital. There, the ankle was x-rayed, and the wound was irrigated and loosely sutured under local anesthetic. The emergency room records described Mr. Sme-gal’s injury as a large laceration on the lateral side of the left foot and several small lacerations around the ankle area. He was unable to walk or to bend his left foot. Mr. Smegal was advised that there was a high probability of infection, because the injury was caused by a dog bite. After several hours in the emergency room, he was sent home with prescriptions for antibiotics and pain medications and was told to check with his doctor after two days.

He took all his medications as directed, but when he saw his family doctor two days later, the doctor examined the wound and immediately admitted him to the hospital for treatment of systemic infection that was not responding to the oral antibiotics. The attending physician noted that his ankle was “swollen, tender and red with significant redness and severe tenderness on the dorsum of the lateral foot and Achilles area. Again significant erythema, swelling and tenderness throughout this area with some drainage from the wounds.” He stayed in the hospital four days, where he received IV antibiotics and pain medication and underwent an MRI to determine whether the Achilles tendon was torn. The MRI did not show any tearing of the Achilles tendon, but did show subcutaneous and deep soft tissue edema. Mr. Smegal testified that the pain in his ankle was severe. As long as his foot was elevated, it was bearable, but as soon as he moved the ankle anywhere off the edge of the bed, it was intolerable. Because of the pain, he could not get out of bed and had to urinate in a bottle.

When Mr. Smegal was released from the hospital, he was told to stay off the ankle, to keep it elevated, and to continue taking the antibiotics and pain medications. He walked with crutches for about the first three weeks after returning home. An | ^orthopedist who had treated him in the hospital eventually fitted him with a hard plastic walking boot, which allowed him more mobility. He continued to experience pain in the ankle, but it gradually diminished over a period of about three months. He has permanent scarring on the ankle and the Achilles tendon area, and still experiences some pain when the ankle gets “real cold.” He testified that the dog bite was a very traumatic experience for him.

After reviewing all of the evidence concerning the nature and extent of Mr. Sme-gal’s injuries and resulting pain and suffering, we do not find that the trial court abused its discretion in awarding him $20,000 in general damages. This award was within the range that a reasonable trier of fact could assess for the effects of this particular injury to Mr. Smegal under the circumstances of this case. Therefore, the award will be affirmed.

CONCLUSION

For the above reasons, the judgment of September 14, 2009, is affirmed. Each party is to bear its own costs for this appeal.

AFFIRMED.

      . Before it was amended in 1996, Article 2321 stated:
      The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.

      . The version of Article 2323 in effect when the Howard case was decided stated the following:
      When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.

      . This provision was formerly found in Section 4-129 and was amended and renumbered in February 2009. To review the complete text of the current ordinance, found in Section 4 — 126.00, see http://www.stpgov.org/ code.