author: McDonald, j.

text:
    Nga TRINH, Individually and on Behalf of Hao TRAN and Lynn Tran v. DUFRENE BOATS, INC.
    No. 2008 CA 0824.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 22, 2009.
    Writ Denied April 13, 2009.

      John Blackwell, New Iberia, LA, for Plaintiffs/Appellees, Nga Trinh, Individually and on Behalf of Hao Tran and Lynn Tran.
    Scott R. Wheaton, Jr., Stanley J. Cohn, Gregory C. Fahrenholt, New Orleans, LA, for Defendant/Appellant, Dufrene Boats, Inc.
    Before PETTIGREW, McDONALD, and HUGHES, JJ.
   McDonald, j.

lain this case, plaintiffs sought recovery under general maritime law and Louisiana wrongful death and survival laws for the death and pre-death suffering of a Louisiana self-employed commercial crab fisherman, who was killed in Louisiana territorial and navigable waters when a barge being pushed by a tug boat struck his crab boat. The trial court found the defendant, who owned and operated the tug boat, 60 percent at fault and the decedent 40 percent at fault for the incident, awarded plaintiffs pecuniary and nonpecu-niary damages, and taxed costs to the defendant. The defendant appealed and the plaintiffs answered the appeal and urged the trial court erred in assigning fault to the decedent and by awarding only minimal survival damages. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The decedent, Thuan Tran, was a self-employed crab fisherman who died as a result of a maritime accident in Louisiana navigable waters. In March 2004, Thuan moved to New Iberia to work as a crab fisherman. He bought a crab boat fitted with a metal crab rack and crab traps, and Thuan and his wife, Nga Trinh, began preparing the boat and traps for commercial crabbing. Around April 24, 2004, local crab fishermen, Lac Le (Lac) and Hoc Tran (Hoc), took Thuan out in his boat from the dock at Jay’s Seafood in Louisa and showed him how to get to several crabbing locations in the bay via the Intra-coastal Waterway Canal (“Intracoastal Canal”) and the Ivanhoe Canal.

In the early morning hours of April 27, 2004, Thuan and Hoc set out in Thuan’s crab boat from Jay’s Seafood to set out Thuan’s crab traps in the bay for the first time. Around 8:30 a.m., another local fisherman, Quang Nguyen (Quang), who was collecting crab traps in the bay and knew Thuan, saw Thuan’s boat as it passed, heading in an eastbound direction towards the Ivanhoe Canal. Thuan ) ncalled Quang on the CB radio and told Quang that he was headed in to get more crap traps. Quang did not see Thuan’s boat again.

Around 9:00 a.m., Lac talked to Thuan by cell phone. Thuan reported that everything was going fine, he and Hoe had set out all of the crab traps, and they were returning to Jay’s Seafood to pick up more traps. During the conversation, Thuan told Lac that they were nearing a landmark in the Ivanhoe Canal where it meets the Intracoastal Canal. This was the last contact anyone had with Thuan.

Thuan’s crab boat never returned to Jay’s Seafood. Later that day, local authorities and fishermen began searching the area waterways for Thuan and Hoc. The next day police found debris, including blue painted wood, and several items that Lac and Quang identified as coming from Thuan’s boat. Sadly, Thuan’s body was recovered on April 29, 2004, and Hoc’s body was found the next day. An autopsy revealed that Thuan asphyxiated due to drowning, and that he had postmortem propeller injuries to his upper and lower extremities and scalp. Days later, authorities located and recovered Thuan’s submerged boat in the Intracoastal Canal.

Authorities investigated the accident. At the time Thuan was last heard from, the only other marine traffic underway in the Ivanhoe Canal area of the Intracoastal Canal was the westbound MW John 3:16 tug boat that was pushing a tow of six empty barges. Dufrene Boats, Inc. owned and operated the M/V John 3:16. Authorities located the forward starboard barge in the tow, CC-95151, and found blue and white paint scrapings on the starboard front rake of the barge. Iberia Parish Sheriffs Office crime scene investigator, Deputy Robert Green, took photos of barge CC-95151 and samples of the paint scrapings for analysis and comparison with paint samples taken from the recovered pieces of Thuan’s boat. The paint samples were identical.

|4Nga Trinh, individually and on behalf of her minor children, Hao Tran and Lynn Tran, brought a wrongful death and survival action against Dufrene seeking recovery of pecuniary and nonpecuniary damages. The plaintiffs alleged that Dufrene negligently operated the MW John 3:16 causing barge CC-95151 to collide with Thuan’s boat which resulted in Thuan’s death. Conversely, Dufrene denied any liability for Thuan’s death arguing that the minimal amount of paint scrapings and the location of those scrapings on the starboard rake of CC-95151 showed that Thuan’s boat was not upright when CC-95151 came into contact with it. Dufrene contends that whatever caused Thuan’s boat to be in that position also caused Thuan’s death.

As to the plaintiffs’ request for nonpecu-niary damages, Dufrene filed a motion for partial summary judgment seeking dismissal of those damages, contending that nonpecuniary damages are not recoverable under general maritime law for a wrongful death of a commercial fisherman. The trial court denied Dufrene’s motion for partial summary judgment, finding that general maritime law and federal substantive maritime law do not preclude recovery of nonpecuniary damages for the wrongful death of a self-employed commercial fisherman in territorial waters, and that the Louisiana wrongful death statute allows for recovery of nonpecuniary damages. Dufrene applied for supervisory writs and this court declined to exercise its supervisory jurisdiction.

The trial court conducted a three day bench trial in November 2007. Evidence and testimony concerning paint colors on Thuan’s boat, paint transfer from the crab boat to barge CC-95151, and the chemical analysis of the paint samples taken from the two vessels were presented. Pictures of the barge and the salvaged crab boat also were introduced into evidence. As there was no issue that at some point barge CC-95151 struck Thuan’s boat, the issue of Dufrene’s |r,potential liability for Thuan’s death came down to a determination of whether the crab boat was in an upright or inverted position when the barge struck it. Dufrene contended that if the boat was upside down at the time that CC-95151 came into contact with the boat, then some other event was responsible for Thuan’s death.

As there were no eye witnesses to the event, the parties offered opposing expert opinion testimony on this issue. Plaintiffs’ expert marine surveying witness, William Kyle, opined that the crab boat was upright and stopped when it was struck by the barge. Kyle based his opinion on his inspection of the damage to the crab boat, in particular the damage to the port side of the vessel, and his analysis of the scratches on the metal crab trap, railing, and fiberglass hull, the scrapes and filing down of the hull area of the boat, and the location of the blue painted wood on the crab boat. Conversely, Dufrene’s expert, Norman Dufour, Jr., opined that the crab boat had to be upside down based on his inspection of the damage extending over a substantial portion of the port side of the crab boat and his review of the barge pictures showing a small amount of paint transfer, the height above the waterline of the paint, and the paint being found on only a limited portion of the barge. Neither Kyle nor Dufour physically examined the barge.

At the close of the trial, the trial court issued its findings. Based on the evidence presented, the trial court found that Thuan’s boat was struck by Dufrene’s barge. The trial court found that it was more likely than not that the crab boat was upright when struck by the barge, that Thuan was on the boat when it was struck, and that, for reasons unknown, Thuan’s boat was stopped in the navigation portion of the Intracoastal Canal at the time it was hit.

As to liability, the trial court determined that both parties shared in the responsibility for the accident. The trial court found Thuan was 40% at fault because it was more likely than not that Thuan’s boat was stopped in an area where it should not have been stopped and where larger vessels had the right-of-way. [ f;The trial court found that the M/V John 3:16 had a duty to maintain a proper lookout and to notice and avoid the stopped crab boat, and that the captain and crew should have seen the upright and stopped crab boat and avoided it. The trial court determined Dufrene was 60 percent at fault for the accident. The trial court determined the total nonpe-cuniary damages to be $1,000,000 and the total pecuniary to be $519,499, which included $15,000 for Thuan’s survival damages. After reducing those amounts by the 40 percent fault allocated to the decedent, the trial court entered a judgment in favor of Nga Trinh for $545,399.40 in pecuniary and nonpecuniary damages and $183,150 in nonpecuniary damages for each of Thuan’s two children. The trial court assessed costs to Dufrene. Dufrene appealed asserting five assignments of error. The plaintiffs answered the appeal, urging that the trial court erred in finding Thuan 40 percent at fault for the accident, and in setting the survival damages at an unreasonably low $15,000.

STANDARD OF REVIEW

State courts sitting in maritime cases apply state standards of review. Winkler v. Coastal Towing, L.L.C., 2001-0399 (La.App. 1 Cir. 4/11/02), 823 So.2d 351, 356. The question of the applicability of state law raises a legal question, thus an appellate court need not give special weight to the findings of the trial court. Id. Louisiana appellate courts apply the manifest error-clearly wrong standard of review of facts in general maritime cases. Terrebonne v. B & J Martin, Inc., 2003-2658 (La.App. 1 Cir. 10/29/04), 906 So.2d 431, 435. An appellate court cannot reverse factual findings unless it finds that no reasonable factual basis exists for the finding and that it is manifestly erroneous or clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Consequently, where there are two permissible views of the evidence, |7the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Marie v. John Deere Insurance Company, 96-1288 (La.App. 1 Cir. 3/27/97), 691 So.2d 1327, 1330.

ASSIGNMENTS OF ERROR

Three of Dufrene’s assignments of error concern the trial court’s factual finding that Thuan’s boat was upright at the moment of impact with barge CC-95151. Dufrene argues that the trial court’s finding is inconsistent with the physical evidence, which showed that the crab boat could not have been in an upright position when it came into contact with the barge. Dufrene contends that the opinion of plaintiffs’ expert, Kyle, was fatally flawed, because Kyle did not consider Deputy Green’s photographs of the physical evidence on barge CC-95151 when he rendered his initial opinion that the boat was upright.

Based on our thorough examination of the record, we find that there is a reasonable factual basis in the record for the trial court’s finding that Thuan’s boat was upright at the time it impacted with barge CC-95151 and the collision resulted in Thuan’s death. The evidence of paint transfer from the crab boat to barge CC-95151 established that at some point in time the two vessels came into contact with each other. The testimony of Captain Boudreaux, Lac and Quang, along with the April 27, 2004, captain’s daily log sheet for the M/V John:3:16, placed the crab boat and CC-95151 in the same area of the Intracoastal Canal at the time that witnesses last saw or spoke to Thuan. The April 27, 2004, Louisa bridge tender’s report and Captain Boudreaux’s testimony-established that the M/V John 3:16 was the only vessel underway in the Intracoastal Canal in the Ivanhoe Canal area at the time the crab boat was in that area.

As to the trial court’s finding that Thuan’s crab boat was in an upright position at the time of impact with barge CC-95151, the record shows that no one witnessed the impact between the crab boat and barge, and the parties presented | ^conflicting expert opinion testimony to establish the position of the crab boat at the time of impact. In applying the manifest error standard, a trial court’s credibility determinations are entitled to great deference. See State ex rel. Thibodeaux v. State, 2001-2510 (La.3/8/02), 811 So.2d 875 (per curiam). The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. A fact finder may accept or reject the opinion expressed by an expert witness, in whole or in part. Ryan v. Zurich American Insurance Company, 2007-2312 (La.7/1/08), 988 So.2d 214, 222.

We find the testimony of the plaintiffs’ expert, Kyle, did not contradict the objective evidence in the record and his opinion was plausible on its face. See Ryan, 988 So.2d at 222. We also find no merit to Dufrene’s contention that Kyle’s opinion was fatally flawed because he failed to take into consideration the paint scrapings on the barge, as Kyle’s opinion did not change after he reviewed the photographs of the paint scrapings on barge CC-95151. At trial, Kyle explained that the crab boat’s fiberglass hull was painted white above the waterline and green below the waterline, and the only blue paint he observed was on wood located in the helm area of the boat. The photographs of the paint scrapings on the barge showed white paint scrapings located under blue paint scrapings. Kyle testified the paint pattern on the barge was consistent with the paint pattern on the crab boat being in an upright position at the time of impact. Kyle also testified that there was no evidence of green paint scrapings on the barge, and he would have expected to see green paint scrapings from the boat’s fiberglass hull on the barge if the boat had been in an inverted position. If the boat were upside down, Kyle explained, there should not have been any blue paint scrapings on the barge, as the areas painted blue would have been under the waterline at the time of impact. Kyle’s explanation is consistent with the laboratory report on the paint samples |fltaken from barge CC-95151, as there were no samples of green paint scrapings from the barge submitted for analysis. Accordingly, we find a reasonable factual basis exists for the trial court’s findings of fact and these assignments of error are without merit.

In conjunction with the above assignments of error, Dufrene asserts the trial court erred in taxing costs to a non-liable defendant. Louisiana Code of Civil Procedure art.1920 governs the taxing of court costs. It reads:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

While the assessment of costs may be made to reflect the percentage of negligence attributable to each party, the trial court may assess costs in any equitable manner pursuant to La.Code. Civ. P. art 1920. Gauthier v. Wilson, 2004-2527 (La.App. 1 Cir. 11/4/05), 927 So.2d 383, 390, writ denied, 2005-2402 (La.3/31/06), 925 So.2d 1258. This article has been liberally interpreted as granting broad discretion to the trial court. Upon review, an appellate court will not disturb the trial court’s fixing of costs absent an abuse of the sound discretion afforded the trial court. Id. In light of our ruling on the above assignments of errors, the premise for Dufrene’s argument fails. Moreover, we find the trial court did not abuse its ' discretion in taxing Dufrene with all of the costs. The plaintiffs’ claims in the underlying action resulted in a judgment rendered in a bench trial in favor of the plaintiffs based on a substantial assessment of fault against Dufrene. See Gau-thier, 927 So.2d at 390(fmding the trial court did not abuse its discretion in casting all cost to a defendant found 60 percent at fault).

hnRECOVERY OF NONPECUNIARY DAMAGES

The trial court found the plaintiffs were entitled to pursue nonpecuniary damages under the Louisiana wrongful death law pursuant to Yamaha Motor Corporation, U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996), because Thuan was not a Jones Act seaman or a longshoreman covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA).

In its last assignment of error, Dufrene contends the trial court committed legal error, urging Yamaha restricts recovei-y of nonpecuniary damages in a general maritime wrongful death action to nonseafarers killed in state navigable waters and precludes such recovery when the decedent is a seafarer. Dufrene further contends that Yamaha identifies seafarers as, “a seaman, longshore worker, or person otherwise engaged in a maritime trade”. Dufrene draws this conclusion from the second paragraph in the opinion that reads:

Traditionally, state remedies have been applied in accident cases of this order'— maritime wrongful-death eases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshore worker, or person otherwise engaged in a maritime trade. We hold, in accord with the United States Court of Appeals for the Third Circuit, that state remedies remain applicable in such cases and have not been displaced by the federal maritime wrongful-death action recognized in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

Yamaha, 516 U.S. at 202, 116 S.Ct. at 621-22. (Emphasis added.)

Because Thuan’s death occurred on Louisiana navigable waters and has a maritime nexus, this matter clearly falls within maritime jurisdiction. See Giorgio v. Alliance Operating Corp., 2005-0002 (La.1/19/06), 921 So.2d 58, 66 (providing the test for admiralty tort jurisdiction). The United States Constitution grants to federal district courts jurisdiction in all “cases of admiralty and maritime jurisdiction.” U.S. Const, art. Ill, section 2; Green v. Industrial Helicopters, Inc., 593 So.2d 634, 637 (La.1992), cert. denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992). State courts have concurrent jurisdiction by virtue of the |u“savings to suitors” clause of the Judiciary Act of 1789. Green, 593 So.2d at 637; 28 U.S.C.A. § 1333 (1948). As a general proposition, a maritime claim brought in a state court is governed by the same principles as govern actions brought in admiralty, by federal maritime law. See Giorgio, 921 So.2d at 67. Generally, state courts exercising concurrent maritime jurisdiction are bound to apply substantive federal maritime statutory law and to follow United States Supreme Court maritime jurisprudence. See Green, 593 So.2d at 637-38; see also Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 94.

However, general maritime law is not a complete or all-inclusive system. Giorgio, 921 So.2d at 67. When new situations arise that are not directly governed by federal legislation or admiralty precedent, federal courts may fashion a rule for decision by a variety of methods. For example, federal courts may apply state law to supplement the general maritime law when there is no conflict between the two systems of law, and the need for uniformity of decision does not bar state action. Giorgio, 921 So.2d at 67. The United States Supreme Court has made clear that the uniformity principle does not preclude the application of state law in admiralty; rather, the decision whether to apply state law in cases within admiralty jurisdiction must be based upon balancing state and federal interests. Giorgio, 921 So.2d at 68. Louisiana state courts should respect Louisiana laws unless there is some federal impediment to the application of that law contained in federal legislation or a clearly applicable rule in the general maritime law. Green, 593 So.2d at 638.

We find that Louisiana has a strong interest in applying its own law in this case. The decedent and his family were Louisiana residents at the time of Thuan’s death; the defendant, Dufrene, is a Louisiana corporation doing business in St. Mary Parish; the incident occurred on Louisiana navigable waters; and the maritime activities of Thuan’s boat and the M/V John 3:16, on the day of the |i2incident, started and were to end in Louisiana. Also, the Louisiana wrongful death statute, La. Civ. C. art. 2315.2, provides plaintiffs in the position of the instant plaintiffs with a remedy for recovering nonpecuniary damages in a wrongful death action.

Having determined that Louisiana has an interest in this matter, we must determine whether La. Civ. C. art. 2315.2 may supplement general maritime wrongful death law. In Green, the Louisiana Supreme Court provided a three-step process that state courts must use to analyze the balance of state and federal interest in an admiralty jurisdiction case. See Green, 592 So.2d at 639; Giorgio, 921 So.2d at 72. This three-step analysis entails determining whether there is applicable federal legislation, identifying the characteristic features of maritime law, and examining the scope of the uniformity requirement. Id.

Green Analysis—First Step

The parties do not contend that Thuan’s death falls within the scope of the Jones Act or other federal maritime wrongful death statutes. Accordingly, we proceed to the second step to identify the characteristic features of maritime law and determine whether there is a clearly applicable general maritime rule that precludes applying the Louisiana wrongful death statute under the facts of this case.

Green Analysis—Second Step

Dufrene contends Yamaha creates a clearly applicable rule that precludes recovery of nonpecuniary damages under the facts of this case. Dufrene characterizes Yamaha as creating “an exception that allows non-pecuniary damages for ‘nonseafarers’ under general maritime law”, thus precluding recovery of nonpecu-niary damages for seafarers. Dufrene argues that Justice Ginsberg’s inclusion of “person otherwise engaged in a maritime trade”, in Yamaha’s second paragraph, along with “seaman” and “longshore worker” evidences the Supreme | ^Court's intent to categorize decedents, such as Thuan, as a “seafarer”. In support of this position, Dufrene cites three federal district courts cases, two from the federal district court for the Eastern District of Louisiana and one from the federal district court for the Eastern District of North Carolina, interpreting Yamaha as precluding recovery of nonpecuniary damages, under general maritime law, in actions involving the injury or death of a self-employed commercial fisherman. See Savoie v. Chevron Texaco, 2004-1302, 2005 WL 2036740 (E.D.La.2005); In re Complaint of Stone Energy Corp., 2002-2969, 2002-3189, 2003 WL 21730621 (E.D.La.2003) (unpublished); Matter of Complaint of Goose Creek Trawlers, Inc., 972 F.Supp. 946 (E.D.N.C.1997).

We begin our analysis by examining Yamaha to determine if it governs this matter. In Yamaha, a 12 year-old Pennsylvania girl on vacation with her parents in Puerto Rico, was killed while operating a recreational jet ski in Puerto Rican territorial waters. The parents of the girl filed an admiralty action in a Pennsylvania federal district court seeking recovery from the jet ski manufacturer, Yamaha, under Pennsylvania’s survival and wrongful death statutes, including recovery of loss of the child’s future earnings, loss of society, loss of support and services, funeral damages, and punitive damages. Yamaha filed a motion for partial summary judgment asserting that the federal maritime wrongful death action recognized in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 329 (1970), displaced all remedies afforded by state law, and that the plaintiffs could only recover the child’s funeral expenses. The district court found the Moragne maritime death action displaced state remedies, but that loss of society and loss of support and services were compensable under Moragne. Yamaha, 516 U.S. at 203, 116 S.Ct. at 622.

The United States Third Circuit granted certiorari on the issue of whether federal maritime law displaced state wrongful death and survival statutes and held [ 14that federal admiralty law, as articulated both by statute and by the federal common law, does not preempt the application of state law wrongful death and survival acts in actions based on the death of recreational boaters (nonseamen) in territorial waters. Calhoun v. Yamaha Motor Corporation, U.S.A., 40 F.3d 622, 626, 637, 639, 644 (1994); cert. granted in part, 514 U.S. 1126, 115 S.Ct. 1998, 131 L.Ed.2d 999, affirmed, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996).

Following that ruling, the Supreme Court granted certiorari on the following issue. “Does the federal maritime claim for wrongful death recognized in Moragne supply the exclusive remedy in cases involving the deaths of nonseafarers in territorial waters?” Yamaha, 516 U.S. at 205, 116 S.Ct. at 623. The Supreme Court explained in a footnote that by “nonseafar-ers” it meant “persons who are neither seamen covered by the Jones Act, 46 U.S.C.App. § 688 (1988 ed.), nor longshore workers covered by the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 etseq.” Yamaha, 516 U.S. at 205 n. 2, 116 S.Ct. at 623 n. 2. The Supreme Court provided a lengthy analysis of federal maritime statutes, traditional maritime common law policies and concepts, and its rulings in prior admiralty cases involving the availability of state law remedies in cases where federal maritime statutes provide rules that govern certain aspects of the liability in those cases. The decedents in the wrongful death cases analyzed in Yamaha were Jones Act seamen, workers covered under LHWCA, or decedents killed on the high seas that fell within the scope of the Death on the High Seas Act, 46 U.S.C.App. § 761 et seq. (DOHSA).

From its analysis, the Supreme Court determined, “Congress has not prescribed remedies for the wrongful deaths of non-seafarers in territorial waters.” Yamaha, 516 U.S. at 215, 116 S.Ct. at 628. Taking into account what Congress sought to achieve, the Supreme Court preserved “the application of state statutes to deaths within territorial waters.” Yamaha, 516 U.S. at 216, 116 S.Ct. at 628. | ^Ultimately, the Supreme Court answered the question it fashioned, holding “damages available for the jet ski death of Natalie Calhoun are properly governed by state law.” Yamaha, 516 U.S. at 216, 116 S.Ct. at 629.

We find particularly important that in framing the question presented in Yamaha, the Supreme Court introduced the term “nonseafarer”, defining a “nonseafarer” as “persons who are neither seamen covered by the Jones Act ... nor long-shore workers covered by the Longshore and Harbor Workers’ Compensation Act.” By defining “nonseafarer” in this manner, it is clear that a Jones Act seaman and a longshore worker under the LHWCA are seafarers. The LHWCA covers a range of nonseaman, longshore employees. Section 902 of the LHWCA defines “employee” as “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker”. 83 U.S.C.A. § 902. The reference to “longshore worker, or person otherwise engaged in a maritime trade”, in the second paragraph of Yamaha, closely parallels the language in Section 902 and supports a conclusion that the Supreme Court did not intend the holdings in Yamaha’s opinion to extend to general maritime wrongful death actions of decedents such as Thuan.

In further examining the intended scope of Yamaha, we find that “seafarer” appears just twice in the opinion. It first appears during the discussion of the maritime doctrine of unseaworthiness and how its development into a strict-liability rule played a role in the recognition of a wrongful death action in general maritime law. The Supreme Court stated, “[t]he unseaworthiness doctrine thus became a ‘species of liability without fault,’ and soon eclipsed ordinary negligence as the primary basis of recovery when a seafarer was injured or killed.” (citation omitted). Yamaha, 516 U.S. at 208, 116 S.Ct. at 625 (citing Miles v. Apex Marine Corp., 498 U.S. 19 at 25-26, 111 S.Ct. 317 at 321-22, 112 L.Ed.2d 275). “Seafarer” appears |1f;again in a footnote explaining how the Moragne wrongful death action provided longshore workers access to the doctrine of unseaworthiness that was available to true seamen covered under the Jones Act. The Supreme Court stated, “[t]hus, nothing short of a federal maritime right of action for wrongful death could have achieved uniform access by seafarers to the unseaworthiness doctrine, the Court’s driving concern in Moragne.” Yamaha, 516 U.S. at 213 n. 10, 116 S.Ct. at 627 n. 10 (citing Moragne, 398 U.S. at 396 n. 12, 90 S.Ct at 1785 n. 12). In tracing the term “seafarer” to Miles and Moragne, we find the Supreme Court uses the term “seamen” rather than “seafarer” in those opinions, and additionally, those cases involve the deaths of a Jones Act seaman and a LHWCA harbor worker. Thus, we find that the Yamaha opinion used the term “seafarer” in the context of providing uniform access to the unique maritime doctrine of unseaworthiness among the classes of maritime employees covered under the Jones Act and LHWCA.

Finally, we note that the second paragraph in Yamaha specifically references, with approval, the Yamaha appellate opinion. The Supreme Court stated, “[w]e hold in accord with the United States Court of Appeals for the Third Circuit, that state remedies remain applicable in such cases and have not been displaced by the federal maritime wrongful-death action recognized in Moragne.” Yamaha, 516 U.S. at 202, 116 S.Ct. at 621-22. The Third Circuit did pot use the term “seafarer” in its appellate opinion. Also, the appellate opinion did not discuss displacement of state law remedies in general maritime wrongful death actions of decedents whose deaths did not fall within the scope of the Jones Act, the LHWCA, or other federal maritime tort recovery scheme. See Calhoun, 40 F.3d 622.

We can find nothing in Yamaha, or the cases cited therein, to suggest the Supreme Court intended the .language in the second paragraph of the opinion to extend the holdings or dicta in Yamaha to decedents not covered by a federal |17maritime wrongful death tort recovery scheme. Accordingly, we find Yamaha does not create a general maritime rule clearly applicable to the instant matter.

As to the lower federal cases relied upon by Dufrene, the Louisiana Supreme Court has held that in matters involving federal law, state courts are bound only by decisions of the United States Supreme Court. Federal appellate court decisions are persuasive only. Shell Oil Company v. Secretary, Revenue and Taxation, 96-0929 (La.11/25/96), 683 So.2d 1204, 1210 n. 11. While not bound by the decisions in these lower federal court cases, we look to them to see if they provide any guidance in the instant matter.

We find the three federal district court cases cited by Dufrene are unpersuasive in resolving the issues presented in this appeal. These federal court cases found self-employed commercial fishermen, who were injured or killed in state waters, were “seafarers” under Yamaha because they were “[persons] otherwise engaged in a maritime trade”. These cases give no importance to Yamaha’s specific definition for “nonseafarer,” because the definition is found in a footnote and not in the body of the opinion. Considering that Yamaha’s maritime policy and case analysis focused on circumstances where liability in a maritime wrongful death action could also evoke liability under the Jones Act, LHWCA, or DOHSA, we find these lower federal court cases fail to properly consider the language in Yamaha’s second paragraph in the context of the opinion as a whole. Also, we find these cases do not clearly identify any admiralty policy, principle, or rule that would be served by precluding application of state law under the facts of this case. Accordingly, we find no clearly applicable general maritime rule that precludes applying the Louisiana wrongful death statute in this matter.

Gr-een Analysis — Third Step

The last step of the Green analysis requires analyzing the scope of the uniformity requirement. Generally, when Congress has prescribed a | ] ¡¡comprehensive tort recovery regime to be uniformly applied, there is no cause for enlargement of damages statutorily provided. Yamaha, 516 U.S. at 215, 116 S.Ct. at 628 (citing Miles, 498 U.S. at 30-36, 111 S.Ct. at 324-28). In Miles, the Supreme Court articulated a damages uniformity principle that precluded recovery of nonpe-cuniary damages in general maritime wrongful death actions of Jones Act seamen. Miles, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275.

In Rebardi v. Crewboats, Inc., 2004-0641 (La.App. 1 Cir. 2/11/05), 906 So.2d 455, 458-460, this court cited, with approval, the United States First Circuit’s analysis of Miles in CEH, Inc. v. F/V Seafarer, 70 F.3d 694, 700-702 (1 Cir.1995), in determining whether Miles precluded recovery of punitive damages in an admiralty case. The CEH court reviewed the approach used in Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1506 (5 Cir.1995) (en banc) to determine whether the Miles damages uniformity principle governed the facts of an admiralty case. The Guevara court first determined whether the factual setting of the case was covered by a statute like the Jones Act or DOHSA. Rebardi, 906 So.2d at 459 (citations omitted). Then, upon finding a statutory/general maritime law overlap, the court invoked the Miles damages uniformity principle and excluded punitive damages. Id. Guevara illustrates that Miles may be applicable in those areas of maritime law where, at the very least, there is an overlap between statutory and decisional law. Id.

The CEH court concluded that the uniformity concern expressed in Miles was not with respect to an award of nonpecuni-ary damages in maritime cases in general, but with inconsistency with Congressional pronouncement. See Rebardi, 906 So.2d at 460 (citations omitted). The CEH court concluded Miles does not mandate a uniform result for every maritime action and was hesitant to ascribe to the Supreme Court a holding that goes well beyond any issue discussed there. Id. In the absence of any relevant legislation, the CEH court concluded that the | ^uniformity principle enunciated in Miles was inapplicable. Id. Applying those articulated principles to the .facts presented in Rebardi, this court found the case was neither a Jones Act nor a DOHSA case and, in the absence of any relevant legislation, held that the uniformity principle enunciated in Miles was inapplicable. Rebardi, 906 So.2d at 461.

We find that the approach we used in Rebardi applies to our analysis of the Miles damages uniformity principle in this case. As previously noted, there is no dispute that facts surrounding Thuan’s death and the plaintiffs’ wrongful death action under general maritime law do not overlap with the tort recovery regimes provided by the Jones Act, the LHWCA or the DOHSA. Accordingly, we find no Congressional remedial scheme prohibits the award of nonpecuniary damages in a general maritime wrongful death action of a local self-employed fisherman killed in Louisiana waters. We recognize that there may be some circumstances, such as in a wrongful death action of a Jones Act seaman against a non-employer, third-party defendant, that are not directly covered by the Jones Act or DOHSA but are so highly analogous factually to a Jones Act wrongful death action that the Miles damages uniformity principle may preclude application of state law remedies. See Scarborough v. Clemco Industries, 391 F.3d 660, 668 (5 Cir.2004); cert. denied, 544 U.S. 999, 125 S.Ct. 1932, 161 L.Ed.2d 772 (2005). However, we find that the circumstances of this case are not highly analogous factually to a wrongful death action created under any federal maritime statutory scheme.

Until such time as Congress or the United States Supreme Court sees fit to address this situation, we see no reason to find the Miles damages uniformity principle precludes a Louisiana state court from supplementing general maritime law with Louisiana law that allows for the recovery of nonpecuniary damages in a wrongful death action of a decedent such as Thuan. See Rebardi, 906 So.2d at 20461. Accordingly, we find that the Miles damages uniformity principie is not applicable in this matter.

In sum, we find Louisiana has a substantial interest in applying its laws in a case involving the death of a Louisiana crab fisherman in Louisiana navigable waters. The defendant is a Louisiana corporation, the facts occurred solely in Louisiana, and Louisiana is where the plaintiffs resided at the time of the death and when suit was initiated. Applying Louisiana wrongful death law in this matter will not conflict with specific federal maritime law or with the characteristic features of maritime law, nor would the application of Louisiana wrongful death law interfere with federal uniformity requirements, as the liability resulting from Thuan’s death does not fall within any Congressionally created mai'i-time statutory regime limiting the type of damages that are recoverable. Accordingly, we affirm the trial court judgment awarding nonpecuniary damages in favor of the plaintiffs and against Dufrene.

PLAINTIFFS’ ANSWER ON APPEAL

In answering Dufrene’s appeal, plaintiffs assert that the trial court erred in finding Thuan 40 percent at fault for the incident, urging the record does not support this finding and that Dufrene did not allege Thuan’s fault as an affirmative defense in its answer.

The determination and allocation of comparative fault are factual inquires that will not be disturbed absent manifest error or unless the court was clearly wrong. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, 1015. The trier of fact is owed great deference in its allocation of fault. Even if the reviewing court would have decided the case differently had it been the original trier of fact, the trial court’s judgment should be affirmed unless manifestly erroneous or clearly wrong. Id. To the extent that a party defendant seeks to have the benefits of comparative fault of another as an affirmative defense, it bears the )21 burden of proof by a preponderance of the evidence that the other party’s fault was a cause-in-fact of the damage being complained about. Dupree, 765 So.2d at 1015 n. 13.

Contrary to plaintiffs’ assertion, the record reveals Dufrene did assert the decedent’s fault as an affirmative defense in its answer. In answering, Dufrene alleged “[a]s a separate and complete defense ... that the death of the decedent was not the result of any negligence on behalf of Du-frene ... but was caused or contributed to by the fault and negligence of the decedent.” We also find the trial court was not manifestly erroneous or clearly wrong in finding Thuan 40 percent at fault in this matter. The facts introduced at trial establish that Thuan’s crab boat was within the navigable channel of the Intracoastal Canal when it was struck by the barge, and expert testimony establishes that Thuan’s boat was more likely than not in an upright position and stopped at the time of the incident.

Plaintiffs also contend that the $15,000 they received for Thuan’s survival action is too low, as it is inconsistent with a finding that Thuan was comparatively at fault in this matter and request this court to increase the award to $100,000. A court may award damages for the pain and suffering of the decedent where there is the smallest evidence of pain on the part of the victim, by his actions or otherwise. Magee v. Pittman, 98-1164 (La.App. 1 Cir. 5/12/00), 761 So.2d 731, 750, writ denied, 2000-1694 (La.9/22/00), 768 So.2d 31. However, like other general damage awards, the amount awarded is subject to the vast discretion of the jury. Id.

As to the evidence of Thuan’s pre-death damages, the evidence in the record supports the trial court’s finding that Thuan was alive when he entered the water, as the post-mortem examination listed Thuan’s cause of death as asphyxiation by drowning. The post-mortem examination also provides that the amputation of Thuan’s arm and lower leg and the lacerations to his head and torso occurred after ⅛⅛ death. The trial court also found that the lacerations to his head and torso occurred post-mortem. There is no evidence establishing how long Thuan was in the water before he perished. However, that the trial court found that the impact of Thuan’s modest crab boat with a barge being pushed, along with five other barges, by a tugboat caused Thuan to enter the water. Considering the sizes of the vessels involved, the finding that Thuan’s boat was stopped at the time of impact, and the lack of evidence showing that Thuan remained conscious after the impact, we find that it was not manifestly erroneous for the trial court to award $15,000 to the plaintiffs for Thuan’s survival damages.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court. All costs of this appeal are assessed to appellant, Dufrene Boats, Inc.

      . By majority vote, this court declined to exercise its supervisory jurisdiction over the interlocutory judgment in Docket No. 2007 CW 0827. Judge Parro dissented and stated that he would grant the writ.

      . Nos. 2004-2527, 2004-2528, 2004-2529, 2004-2530, 2004-2531, 2004-2532, 2004-2533, 2004-2514


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Jonah Scott GUIDRY v. Jill Stelly GUIDRY.
    No. 08-1166.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    Writ Denied April 17, 2009.

      Anne E. Watson, Opelousas, LA, for Plaintiff-Appellant: Jonah Scott Guidry.
    Gregory B. Dean, Opelousas, LA, for Defendant-Appellee: Jill Stelly Guidry.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

|2Plaintiff, Jonah Scott Guidry, appeals the judgment of the trial court setting child support for the minor children of his marriage to Defendant, Jill Stelly Guidry. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

FACTS

Jonah and Jill were married on August 12, 2000. They had two children, Ava Elaine Guidry, born July 20, 1999, and Jonah Asher Guidry, born May 13, 2004. Jonah filed a petition for divorce on July 30, 2007. Jill filed a reeonventional demand seeking custody, child support, interim spousal support, and use and occupancy of the family home. A hearing was held over three days in September and November 2007 to determine child support, interim spousal support, and visitation rights. The trial court awarded joint custody, with Jill serving as primary domiciliary parent, set a schedule of supervised visitation for Jonah, ordered Jonah to submit to random drug screening no more than three times a month, and ordered Jonah to pay child support in the amount of one thousand seven hundred ninety-one dollars ($1,791.00) per month, insurance and child care expenses, and interim spousal support in the amount of one thousand five hundred dollars ($1,500.00) a month.

Jonah appeals asserting that the trial court erred in considering payments resulting from a personal injury settlement that he will receive at intervals of five years until May 2029 and in applying La. R.S. 9:315.11(A) to find that Jill’s earning potential need not be considered in determining the child support award because she was caring for a child under the age of five.

JjDISCUSSION

Jonah’s Income

Jonah asserts that the trial court should not have included future settlement payments in his income for calculation of his current child support obligation. The trial court averaged the payments to be received at five-year intervals until 2029 and found that Jonah would receive an average of $96,977.00 per year from this source.

Louisiana Revised Statutes 9:315 provides that for purposes of calculation of child support:

(5) “Income” means:
(a) Actual gross income of a party, if the party is employed to full capacity; or
(b) Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.
(c) The court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

While the third paragraph of La.R.S. 9:315 also defines gross income as including annuity payments, the payments received by Jonah differ from annuity payments in that from the year 2004 they are to be received in differing amounts at five-year intervals. Some payments will be received after one or both of his children have reached the age of majority. While we agree that the income received from this source should be included in his income calculation, it is the opinion of this court that Ronly those amounts actually received can be included and that the future payments should not be considered now in making the award of child support. They may be considered when received, along with other circumstances relative to child support at that time.

Jill’s Earning Potential

Jonah further argues that the trial court erred in finding that Jill “is caring for a child of the parties under the age of five years” since their child, Asher, is in daycare Monday through Friday. We agree.

It is undisputed that Asher is enrolled in daycare from 9 o’clock a.m. until 5 o’clock p.m. Further, Jonah was ordered to pay the daycare expense.

La. R.S. 9:315.11(A) provides that:

If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. In determining the party’s income earning potential, the court may consider the most recently published Louisiana Department of Labor Wage Survey.

Although the statute does not specify what is meant by caring for a child under the age of five years, it is our opinion that this language was meant to apply to those who were actually caring for the child during normal working hours. Further, implicit in the cases on point is an expectation that the party seeking this exclusion be voluntarily unemployed or underemployed for the purpose of caring at home for a child under five years of age. See Peacock v. Peacock, 39,950 (La.App. 2 Cir. 5/4/05), 903 So.2d 506; Martello v. Martello, 06-594 (La.App. 1 Cir.2007), 960 So.2d 186.

| .-The record herein does not support the conclusion that Jill is voluntarily unemployed in order to care for Asher, because Asher’s situation has in no way changed as a result of her unemployment. He continues to be enrolled in day care all day, five days a week, during her unemployment as he was while she was working. Since Ash-er is already enrolled in daycare, there is nothing to prevent Jill from seeking employment during those hours. Since she functions with regard to Asher just as she would if she were employed, her earning potential should be included in the child support calculation. Additionally, since Jonah is paying for daycare, the failure to include Jill’s earning potential in the child support calculation results in increased payment of child support not contemplated by the statute. Further, although the trial court found that Jill was planning to return to school, no evidence was introduced to confirm this.

Accordingly, we reverse and remand this case to the trial court for a recalculation of the appropriate child support obligation.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed. The matter is remanded for recalculation of the child support obligation in keeping "with this opinion. Costs of this appeal are assessed to the Defendant-Appellee, Jill Stelly Gui-dry.

REVERSED AND REMANDED.


author: GENOVESE, Judge.

text:
    Antonio ROGERS d/b/a/ Custom Home Construction & Design v. Alecisa MUMFORD.
    No. 08-1144.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    Peter J. Pohorelsky, John R. Pohorel-sky, Scofield, Gerard, Singletaiy & Poho-relsky, Lake Charles, LA, for Plaintiff/Ap-pellee, Antonio Rogers d/b/a Custom Home Construction & Design.
    Scott J. Pias, Lake Charles, LA, for Defendant/Appellant, Alecisa Mumford.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this breach of contract case, Defendant appeals the trial court’s grant of Plaintiffs Motion to Enforce Settlement Agreement. For the following reasons, we reverse and remand.

FACTS

Defendant, Alecisa Mumford, hired Plaintiff, Antonio Rogers d/b/a Custom Home Construction & Design (Rogers), in March of 2007 to perform rep ah- work on her home as a result of damages inflicted by Hurricane Rita. When Ms. Mumford became dissatisfied with the work being performed, she terminated her contract with Rogers. On May 11, 2007, Rogers instituted the present litigation, alleging that Ms. Mumford’s failure to pay for the work done was a breach of their construction contract. Mumford responded, alleging that Rogers had performed unsatisfactory work.

On November 11, 2007, Rogers filed a Motion to Enforce Settlement Agreement wherein he contended that a settlement agreement had been reached between the parties which was evidenced by an executed settlement document signed by Rogers and Ms. Mumford on November 8 and 15, 2007, respectively. In his motion, Rogers requested that the trial court order Ms. Mumford to comply with the terms of the settlement agreement. In opposition thereto, Ms. Mumford contended that the parties, although involved in settlement negotiations, had never reached a final agreement, and, consequently, no payments were made, and the delivery of the settlement documents was never completed.

The Motion to Enforce Settlement Agreement was heard by the trial court on December 14, 2007. The trial court ruled that there was an “unfortunate disagreement” between the parties, that there was an agreement as to everything except the $4,590.00 |2for the doors and windows, and that Rogers was to receive the amount set forth in the settlement agreement ($22,-542.70) less the $4,590.00 for the doors and windows. However, on March 10, 2008, the trial court rendered a contrary “Ruling,” finding the settlement agreement between the parties enforceable, thereby awarding Rogers the full $22,542.70 and also ordering Ms. Mumford to pay for the doors and windows. The trial court signed a formal judgment on March 11, 2008. It is from this judgment that Ms. Mumford appeals.

ISSUES

Ms. Mumford raises the following issues for our review:

1.
The nullity of the March 10, 20008[sic] ruling by the [tjrial [cjourt.
2.
The nullity of the March 11, 2008 Judgment in favor of a non-party, Creative Doors and Windows, in the amount of $4,590[.00] against Ms. Mumford.
3.
The actions of the trial court on March 10, 2008[are] not supported by the record and the amounts awarded to Plaintiff and a non-party against Ms. Mumford should be reversed.

LAW AND DISCUSSION

In the first issue presented for our review, Ms. Mumford asserts that the ruling of the trial court of March 10, 2008, is a nullity because the trial court “entered a final Judgment on the record on December 14, 2007.” She contends that the trial court’s ^statement made at the March hearing that the matter had been taken “under advisement” in December was incorrect. Ms. Mumford concludes that despite not having been provided notice of the March hearing, the trial court “put on the record a second Judgment” in which the trial court “attempted to substantially modify the original final judgment against Ms. Mumford.” For the reasons explained below, we need not address the merits of Ms. Mumford’s contentions relative to the March 10, 2008 hearing, nor her contentions relative to the substance of the judgment signed on March 11, 2008, relative to the trial court granting a judgment in favor of a non-party to the present litigation.

The only real issue before this court is whether Ms. Mumford and Rogers entered into a valid and enforceable settlement agreement. If so, the trial court was correct in granting the Motion to Enforce Settlement Agreement. If not, then the matter must be remanded for a trial on the merits.

“A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” La. Civ.Code art. 3071. “Such a compromise is valid only if the parties share a meeting of the minds as to their intent.” Amy v. Schlumberger Technology Corp., 00-175, p. 4 (La.App. 3 Cir. 6/14/00), 771 So.2d 669, 672 (citing Am. Bank & Trust Co. v. Hannie, 568 So.2d 216 (La.App. 3 Cir.1990), writ denied, 572 So.2d 64 (La.1991)). After reviewing the evidence in the record of these proceedings, we find that the documents establish that there was never a meeting of the minds between the parties. Accordingly, there was no valid and enforceable settlement agreement between Rogers and Ms. Mumford.

The correspondence exchanged between couns'el for the parties clearly ^establishes that although the parties were discussing possible settlement, both before and after the execution of the settlement documents, there existed a dispute regarding payment of $4,590.00 for the doors and windows. This figure constitutes an amount owed to a third-party supplier, Creative Door and Window, for custom doors and windows which were to be installed in Ms. Mumford’s home. There is no dispute between the parties that this amount remained unpaid. What was disputed was whether Rogers or Ms. Mumford was to be responsible for the payment to Creative Door and Window.

On May 18, 2007, Ms. Mumford communicated through her counsel an “offer to pay [Rogers] $22,542.70 in settlement of all of his claims.” Notably, this same correspondence reflects that there existed an outstanding payment yet to be made to Creative Door and Window despite “a billing for $4,500.00 for windows and doors and a check accompanying that, purporting to suggest that the invoice for those doors have been paid.” On October 12, 2007, counsel for Rogers responded, stating that Mr. Rogers “would be willing to accept [the] initial offer of $22,542.70 in settlement” and that he hoped that they could “settle this matter in the coming days” without any mention of the amount owed to Creative Door and Window. On October 29, 2007, counsel for Rogers forwarded to counsel for Ms. Mumford a Settlement and Release of Claims Agreement. On October 30, 2007, counsel for Ms. Mumford returned the proposed settlement documents with revisions. It was again noted in this correspondence, which predated the execution of the settlement documents, that “the man who supplied the windows and doors had not been paid.” What transpired next was the signing of the settlement documents by Ms. Mumford on November 8, 2007, and by Rogers on November 15, 2007.

[RThe parties continued to discuss the payment yet to be made to Creative Door and Window even after the settlement documents were signed. This is evidenced by the correspondence of November 16, 2007, which advised counsel for Rogers that Ms. Mumford “is willing to enter into the agreement to settle the case upon payment of the amount that she has tendered, but out of that, Mr. Rogers will have to pay for the doors and windows.” Rogers filed his Motion to Enforce Settlement on November 21, 2007.

The standard of appellate review of a trial court’s factual findings is well settled and has long been established in this state. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Our supreme court set forth a two-part test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242, citing Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

Cole v. Allstate Ins. Co., 07-1046, p. 2 (La.App. 3 Cir. 6/5/08), 987 So.2d 310, 312, writ denied, 08-1463 (La.10/31/08), 994 So.2d 535.

In the case at bar, we find that the evidence fails to establish a reasonable factual basis to support the judgment of the trial court enforcing the settlement agreement. There clearly was never a meeting of the minds between the parties before and after the signing of the settlement documents as to who was going to be responsible for the $4,590.00 payment due to Creative Door and Window. The series of correspondence between counsel was clear and explicit that this issue needed to be resolved and was never resolved; consequently, it must be resolved by a trial on the merits. As characterized by the trial court in the December 14, 2007 transcript, what remains is “an unfortunate disagreement.” Therefore, we find that there was an absence of a meeting of the minds between the parties as to the issue of payment for the doors and 1 ¿windows and that the trial court committed manifest reversible error in granting the Motion to Enforce Settlement Agreement.

DECREE

For the foregoing reasons, the March 11, 2008 judgment of the trial court granting Plaintiffs Motion to Enforce Settlement Agreement is reversed, and the matter is remanded to the trial court for further proceedings consistent herewith. Costs of this appeal are assessed to Antonio Rogers d/b/a Custom Home Construction & Design.

REVERSED AND REMANDED.

      . There was no formal judgment signed following the oral reasons for judgment rendered by the trial court at the December 14, 2007 hearing, and the nature of the proceedings in the trial court on March 10, 2008, is disputed by the parties. The record contains a transcript of the trial court's ruling on March 10, 2008, which differs from that of December 14, 2007. However, given our findings below, we need not address the procedural deficiencies, vel non, surrounding the hearing before the trial court on March 10, 2008.


text:
    Mary A. Scott WHITMAN v. Monica WILLIAMS and Scott Wallace.
    No. 08-1133.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    John K. (Mike) Anderson, Leesville, LA, for Defendant-Appellant, Monica Williams.
    Elvin C. Fontenot, Jr., Leesville, LA, for Plaintiff-Appellee, Mary A. Scott Whitman.
    Scott Micah Wallace, Baton Rouge, LA, Defendant-Appellant, Pro Se.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

[ defendant, Monica Williams, mother of the minor child, Indi Alissa Wallace Williams, appeals the judgment of the trial court that awarded joint custody of the minor child to the child’s alleged father, Scott Wallace, Williams, and the father’s maternal aunt, Mary A. Scott Whitman. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Williams and Wallace were residing together in Round Rock, Texas, when Indi was born on June 7, 2004. Shortly thereafter, Williams and Wallace separated. Williams maintained custody of Indi until January of 2006 when she asked that Wallace care for the child. At that time, Indi moved to Baton Rouge, Louisiana, to reside with Wallace and his mother, Patricia Wallace. In July of 2006, Wallace and his mother became unable to care for Indi, and she went to live with Plaintiff, Whitman (who is Wallace’s maternal aunt), in Vernon Parish, Louisiana. In December of 2007, Whitman filed for custody of Indi and received an ex parte order granting her custody. Williams then filed answers and reconventional demands to terminate the ex parte order. Williams was granted visitation on alternating weekends until a hearing could be held. On February 28, 2008, the parties entered into a stipulation, and the ex parte order was terminated. Williams had custody of Indi from February 28 through March 9, 2008, and then had visitation one week per month. Wallace was to have DNA testing performed to determine if he was the biological father of Indi. Following a trial on the merits, the trial court granted joint custody to Whitman, Williams, and Wallace, with Whitman being designated as the domiciliary custodial parent. Williams and Wallace were granted visitation. It is from this ruling that Williams now appeals, asserting that the trial court committed manifest error in | -¿granting custody to a nonparent and that the trial court abused its discretion in finding that substantial harm would occur by returning Indi to her. Wallace does not appeal.

DISCUSSION

Louisiana Civil Code Article 133 governs the award of custody to nonpar-ents and provides as follows:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

We are mindful that the “concept of parental primacy is well established in Louisiana law” and that a nonparent is “required to make a very strong showing before custody should be awarded in their favor.” Wilson v. Paul, 08-382, p. 2 (La.App. 3 Cir. 10/1/08), 997 So.2d 572, 574. Furthermore, “[i]n a conflict between parents and nonparents, the parent enjoys the paramount right to custody of a child, and may be deprived of such right only for compelling reasons.” Id. (quoting Tennessee v. Campbell, 28,823, p. 6 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274, 1278). As such, the nonparent bears the burden of proving that “granting custody to the parent would be detrimental to the child, and that the best interest of the child requires an award of custody to the nonparent.” Id. (quoting Tennessee, 682 So.2d at 1278). Moreover, in determining the best interest of the child, La.Civ.Code art. 134 provides:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
| a(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

In this case, the trial court heard the testimony of Whitman, Wallace, and Williams, as well as the testimony of the mother of William’s present fiancé. There was no dispute that Indi had been living in a wholesome and stable environment with Whitman for nearly two years at the time of trial. Williams had limited contact with Indi during that time as she was living in either Arizona, Dallas, Texas, or Austin, Texas. She provided no financial support. At the time of trial, Williams had become engaged to Steven Sovine, whom she had know for about a year, and had given birth to his child. Williams was living in Austin, Texas, at the home of Sovine’s parents |4and was working at the cosmetics counter in Dillards. Sovine had just become employed in the shoe department at Nord-strom. Whitman testified that after Indi visited with her mother, she cried a lot more than usual and was unruly in her day care class. The trial court found that there was a substantial risk to the child in taking her from a wholesome, stable environment and placing her with Williams, whom he found, by the evidence presented, was not a responsible mother. The trial court then awarded joint custody to Whitman, Wallace, and Williams, with Whitman being designated as the domiciliary custodial parent. Williams was awarded visitation according to an “Implementation Plan for Joint Custody” which included every other weekend, five weeks during summer vacation, and alternating holidays. Wallace was granted reasonable visitation not to interfere with Williams’ specified visitation.

Our review of the trial court’s oral reasons for judgment reveals that the trial court considered all of the relevant factors and noted that Indi had lived half of her life with WTiitman in a stable and wholesome environment. We agree with the trial court that, at this time, and considering the present factual scenario, it would not be in Indi’s best interest to move her out of Whitman’s home. Whitman met her burden of proving that custody in Williams’ favor would result in substantial harm to Indi. Thus, we find no manifest error in the judgment as rendered by the trial court.

DECREE

We affirm the trial court’s award of custody. Costs of this appeal are assessed to Defendanh-Appellant, Monica Williams.

AFFIRMED.


author: EZELL, Judge.

text:
    ACADIAN AMBULANCE SERVICE, INC. v. Jamie DARBONNE.
    No. WCA 08-983.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    Writ Denied April 17, 2009.

      John Glenn Fontenot, Attorney at Law, Eunice, LA, for Defendant/Appellee, Jamie Darbonne.
    K. Wade Trahan, Ottinger Hebert, L.L.C., Lafayette, LA, for Plaintiff/Appellant, Acadian Ambulance Service, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

hln this appeal, Acadian Ambulance Service appeals the decision of the workers’ compensation judge awarding Jamie Dar-bonne temporary total disability benefits (TTDs), ordering it to pay for a surgical procedure to be performed upon her, and awarding Mrs. Darbonne penalties and attorney fees for its failure to timely pay the above benefits. For the following reasons, we affirm the decision of the workers’ compensation judge, as amended.

Mrs. Darbonne injured her shoulder on November 30, 2006, moving a patient from a bed to a stretcher while in the course and scope of her employment with Acadi-an. She sought treatment for the injury that very day and complained of various pain, numbness, and tingling in the arm from that time forward. Acadian initially paid workers’ compensation benefits as well as the cost of Mrs. Darbonne’s medical treatment. In December of 2006, Mrs. Darbonne saw orthopaedic surgeon Dr. Mark Field, who, based on a MRI, determined that she had a SLAP tear in her shoulder. Based on suspicion that she was misrepresenting the extent of her injury, Acadian halted TTDs on November 27, 2007, and refused to authorize the surgery Dr. Field said Mrs. Darbonne needed to repair her shoulder. Acadian filed the present La.R.S. 23:1208 action alleging Mrs. Darbonne made fraudulent representations with regard to her workers’ compensation claim. Mrs. Darbonne filed a reconventional demand seeking penalties and attorney fees for the termination of TTDs and the denial of the surgery.

The workers’ compensation judge heard the matter and found that Mrs. Darbonne did not commit fraud under La.R.S. 23:1208, that she remained entitled to TTDs retroactive to the date of termination, that Acadian should pay $2,000 in penalties for the arbitrary and capricious termination of TTDs, $2,000 in penalties for |¿the refusal to approve her surgery, and $10,000 in attorney fees for its conduct in this matter. From this decision, Acadi-an appeals.

Acadian asserts three issues on appeal: that the workers’ compensation judge erred in finding Mrs. Darbonne did not violate La.R.S. 23:1208; that the workers’ compensation judge erred in finding Acadi-an arbitrary and capricious in terminating TTDs and refusing the surgery; and that Mrs. Darbonne was entitled to attorney fees. Mrs. Darbonne answers the appeal, seeking additional attorney fees for work done on appeal.

Acadian first claims that the workers’ compensation judge erred in denying its claim under La.R.S. 23:1208. We disagree. Louisiana Revised Statutes 23:1208 governs the parameters for determining if a claimant has committed fraud for the purpose of obtaining workers’ compensation benefits. The applicable sections of that statute read as follows:

§ 1208. Misrepresentations concerning benefit payments; penalty
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La.R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the workers’ compensation judge finds that all three of “these requirements are met, Section 1208 applies and its forfeiture | ¡¡provisions must be enforced.” Id. at 14.

The determination by a workers’ compensation judge as to whether a claimant has willfully made a false statement for the purpose of obtaining workers’ compensation benefits is a finding of fact and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313.

The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous.

Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858 So.2d 425 (citations omitted).

Moreover, we must keep in mind that La.R.S. 23:1208(E) is penal in nature. Any statute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist., 02-439, 02-442, 02-M78 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.

Acadian relies on a segment of video roughly two minutes long taken from seventy-two hours of surveillance video. The segment, notably short in light of the entire amount of videotape, shows rather inconsequential movements such as Mrs. Darbonne merely raising her arm over head, talking on the phone, or putting her hail' in a ponytail. Acadian attempted to use this to not only bring their La.R.S. 23:1208 claim, but also to deny Mrs. Dar-bonne workers’ compensation benefits.

|4Acadian claims that the statements and movements made by Mrs. Darbonne make the case analogous to Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239, wherein the claimant, a roofer, denied that he had been able to engage in roofing since his accident. Evidence proved that claimant to be lying, as video surveillance showed him doing just that. We however cannot find that the simple act of raising one’s arm over one’s head is akin to roofing a house.

Furthermore, by the time the video had been taken, Mrs. Darbonne had been placed on sedentary to light-duty work by her pain management specialist, Dr. Stephen Rees had been encouraged to do more with the arm; and she was on pain medication, which alleviated some of the pain she suffered. Acadian claims that Dr. Rees stated that in the surveillance video, she displayed more freedom of movement in the arm than she had indicated to him she was capable of. However, Dr. Rees also stated that in the video she carried the arm in a guarded manner, away from her body. The video may show some variance in the degree of pain Mrs. Darbonne suffered, but does not clearly show anything more than that. While Mrs. Dar-bonne may have exaggerated her pain level and/or understated the motions she could perform to some of her doctors, none of the doctors who examined her accused her of malingering. More importantly, there was a-nonsubjective MRI finding of a SLAP tear to prove that she did, indeed, have an injury to her shoulder. Therefore, she did not need to commit the alleged fraud to be entitled to workers’ compensation benefits.

The workers’ compensation judge did not find any of Mrs. Darbonne’s statements amounted to fraud in light of the video evidence. As there is nothing in the record which shows this finding to be manifestly erroneous, Acadian’s assertion is without merit.

IsAcadian next claims that the trial court erred in finding that it was arbitrary and capricious in denying Mrs. Darbonne workers’ compensation and medical benefits. Again, we disagree. Acadian again relies on what it believes is damning video of Mrs. Darbonne raising her arm and inconsistencies with that, her medical records, and deposition testimony. However, Acadian latches onto these inconsistencies while completely ignoring hard evidence that established Mrs. Darbonne’s injury existed and that it required surgery. The record shows that, although Mrs. Dar-bonne’s presentation of the injury was not textbook, there was an objective MR.I finding of a SLAP tear in Mrs. Darbonne’s shoulder. Her orthopaedic surgeon, Dr. Field, was convinced that Mrs. Darbonne required surgery.

Acadian, seeking a second opinion, sent Mrs. Darbonne to Dr. David Drez, who confirmed the finding of a SLAP tear. Not only did Dr. Drez not oppose Mrs. Darbonne having surgery, but after examining her and reviewing Dr. Field’s notes, he felt that surgery would benefit Mrs. Darbonne. He noted in his report to Aca-dian that “fixation of her SLAP lesion could alleviate some of [her] symptoms and that surgery could be worthwhile in this patient. Thus, Acadian ignored the opinions of, not only Mrs. Darbonne’s doctor, but also them own. Acadian relied on minor inconsistencies in Mrs. Darbonne’s testimony and clinical presentation while ignoring objective evidence of injury. In doing so, Acadian acted arbitrarily and capriciously in terminating Mrs. Dar-bonne’s TTDs and in denying her the surgery required to repair her injury. Again, there is no error in the workers’ compensation judge’s finding.

Acadian finally claims that the trial court erred in awarding Mrs. Dar-bonne penalties and attorney fees. Failure to pay timely subjects the employer to penalties and attorney fees unless the claim is reasonably controverted or the nonpayment | (¡results from conditions over which the employer had no control. La. R.S. 23:1201 (F)(2); Perron v. St. Landry Parish Leon. Indus. Dev. Dis., 03-1061 (La.App. 3 Cir. 3/3/04), 867 So.2d 86, writ denied, 04-1502 (La.10/1/04), 883 So.2d 1009. To determine whether the worker’s claim has been reasonably controverted, a workers’ compensation judge must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885. The determination of whether an employer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181.

Again, Acadian ignored evidence of actual injury and the opinion of its own doctor, ■as well as Mrs. Darbonne’s treating physician, to terminate benefits and deny her surgery without any medical evidence to support their position. Their videotape evidence is, at best, lacking in the weight that would be required to reasonably counter Mrs. Darbonne’s evidence of injury. The record available to the workers’ compensation judge contained sufficient factual information from which to conclude that Acadian failed to pay Mrs. Darbonne workers’ compensation benefits in a timely manner and that it failed to provide medical treatment as recommended by her treating physician. The award of attorney fees is not in error.

Mrs. Darbonne answers Acadian’s appeal seeking additional attorney fees for work done on this appeal. After a review of the record and the work done on appeal by counsel for Mrs. Darbonne, we find that an additional award of $3,000 in attorney 17fees is reasonable. We, therefore, will award Mrs. Darbonne an additional $3,000 in attorney fees for successfully defending this appeal.

For the above reasons, we amend the judgment of the workers’ compensation judge to reflect an additional award of $3,000 in attorney fees in favor of Mrs. Darbonne for the work necessitated by this appeal. In all other respects, the judgment is affirmed. Costs of this appeal are assessed against Acadian Ambulance.

AFFIRMED AS AMENDED.


author: GREMILLION, Judge.

text:
    Tanya WHITE v. PROGRESSIVE SECURITY INS. CO., et al.
    No. CA 08-926.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Wilbert Joseph Saucier, Jr., Attorney at Law, Pineville, LA, for Plaintiff/Appellee, Tanya White.
    Ian Alexander Macdonald, Longman Russo, Lafayette, LA, for Defendants/Appellants, Progressive Security Ins. Co., Nicole Byrd.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

LThe defendant, Progressive Security Insurance Company, appeals the judgment in favor of the plaintiff, Tanya White. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

White and Progressive’s insured, Nicole Byrd, were involved in a motor vehicle accident in which Byrd rear-ended White in December 2005. Byrd’s liability in this matter is not in dispute. Following a bench trial in January 2008, the trial court rendered judgment in favor of White finding that her injuries were chronic and permanent. It awarded her $60,000 in general damages, $6,950 in past medical expenses, and $840 in future medical expenses. However, the total amount was limited to $50,000, the jurisdictional limit of the court. Progressive now appeals. White answers the appeal and requests damages for frivolous appeal.

ISSUES

Progressive assigns as error:

1. The testimony of Dr. Kelly Fair cloth because she lacked the expertise to render an opinion as to the cause of the MRI findings.
2. The trial court’s finding that the accident caused the degenerative changes shown on White’s MRI.
3. The trial court’s award of $60,000 for a soft tissue injury.

DISCUSSION

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, |2but if the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 844.

Though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973). “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one.” Stobart v. State, through Dep’t of Transp. And Dev., 617 So.2d 880, 882 (La.1993).

In its reasons for judgment, the trial court found:

Ms. White was treated by Dr. Kelly Faircloth, for injuries diagnosed as cervical sprain/strain. There were objective signs of injury, including muscle spasms and loss of the normal cervical curve. In addition there was a diagnosis of thoracic and lumbar strain/sprain, which were also evidenced by objective signs of injury. Ms. White was initially treated with regular treatment for a period of six months before Dr. Faircloth attempted to release Ms. White on May 30, 2006. Ms. White attempted home therapy until her return to Dr. Faircloth on May 29, 2007. At that time she was still suffering pain in the same areas of her neck and back. She was treated for approximately two more months. After another attempted release, Ms. White returned to Dr. Faircloth’s care in December of 2007. Dr. Faircloth testified that she was of the opinion that Ms. White was suffering from a bulging disc in the cervical region which correlates with the location of Ms. White’s complaints. This was shown by an MRI pei'formed on June 26, 2007. The court is of the opinion that Ms. White suffered an injury which is chronic and permanent. There is nothing to suggest she will obtain any relief in the near future. At the time of the trial Ms. White was 25 months post accident with the evidence indicating her injury is permanent.

^EXPERT TESTIMONY

Progressive argues that Dr. Fair-cloth, a chiropractor, was not qualified to read or interpret an MRI film or to make conclusions regarding its relation to a particular accident. We disagree.

In Rowe v. State Farm Mutual Automotive Insurance. Co., 95-669, p. 17 (La.App. 3 Cir. 3/6/96), 670 So.2d 718, 728, writ denied, 96-0824 (La.5/17/96), 673 So.2d 611, we stated: “As a general rule, the factual basis of an expert’s opinion goes to the credibility of the testimony, not its admissibility, and it is up to the opposing party to examine the factual basis of the opinion in cross-examination. Loudermill v. Dow Chemical Co., 863 F.2d 566 (8th Cir.1988).”

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 2798, 125 L.Ed.2d 469 (1983), the Supreme Court stated that “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Further, appellate courts in this state have held that a testifying expert need not be the one who compiled the statistics or data; she may rely on data prepared by others. See Barre v. Bonds, 99-1806 (La.App. 4 Cir. 5/10/00), 763 So.2d 60. Additionally, we have held that the method of testing or information collection should be considered by the fact-finder in assessing what weight to give to the expert’s conclusion. See State v. Brossette, 93-1036 (La.App. 3 Cir. 3/2/94), 634 So.2d 1309, writ denied, 94-0802 (La.6/24/94), 640 So.2d 1344.

Dr. Faircloth stated that she had testified as an expert more than thirty times. She stated that she arrives at conclusions based on the history given by the patient and her examination of the patient. She stated that she often renders opinions 14concerning the cause of injuries in automobile accidents. As to the MRI, Dr. Faircloth testified that after requesting that an MRI be performed, she made conclusions based on the results of the MRI. She never claimed to be a specialist in reading or interpreting MRIs, however, that does not disqualify her from having an opinion, based on her experience and knowledge, that takes into consideration her treatment of the patient along with the MRI report prepared by a radiologist. This assignment of error is without merit.

CAUSATION

Progressive argues that Dr. Fair-cloth’s opinion regarding the cause of White’s MRI findings is not supported by the record. It is elemental that a plaintiff must show a causal connection between the accident and the resulting injury. Progressive states that Dr. Faircloth even acknowledged that she could not tell from looking at the MRI report whether the findings were caused by the motor vehicle accident or the aging process.

Dr. Faircloth stated that she first examined White, regarding the subject accident, on December 9, 2005, five days after its occurrence. She said that White reported immediate head and neck pain, with lower back pain following two days later. Dr. Faircloth indicated that a physical exam revealed muscle spasms in various parts of White’s neck and back. She further testified that an x-ray revealed that White had cervical hypolordosis, or a decrease in her cervical curve. Dr. Faircloth stated that this condition could be congenital or due to muscle spasm or splinting.

Dr. Faircloth diagnosed White with acute traumatic cervieothoracic sprain with muscle spasms complicated by the hypolor-dosis and an acute traumatic lumbar sacral sprain with associated muscle spasm based on the history White gave |sher and the examination she performed. She opined that the December 5, 2005 accident was the cause of the injury.

White’s treatment included intersegmen-tal traction, diathermy (heat), and spinal manipulation, and she was also given a topical analgesic gel to use at home. She was actively treated for a period of six months beginning December 2005, and ending in May 2006. She was released from treatment May 30, 2006, but Dr. Faircloth testified that White continued to have neck and back pain along with decreased range of motion. She said it was not uncommon to release patients who are still symptomatic in the hopes that they will improve as they return to normal activities.

Dr. Faircloth stated that White returned to her office on May 29, 2007, with complaints of neck pain, headaches, and upper to mid back pain. She said these complaints were the same as they were the year prior. Dr. Faircloth indicated that an exam showed muscle spasms. She implemented a similar course of treatment as she had the year before. Dr. Faircloth testified that White reported no intervening trauma since her visit the year before. Dr. Faircloth continued treating White through July 30, 2007, when she was released again, although still experiencing some occasional pain. Dr. Faircloth was of the opinion that White suffered from a chronic sprain/strain injury.

White again returned for treatment on December 12 and 19, 2007, complaining of similar symptoms as before. She again imported no intervening trauma, and Dr. Faircloth again believed that White’s symptoms originated from the December 2005 accident.

Dr. Faircloth testified that she requested that an MRI be performed, | r,which was completed on June 26, 2007. The reporting radiologist indicated disc protrusions at C3-4, C4-5, C5-6, and C6-C7. Dr. Fair-cloth stated that it is customary to request an MRI when a patient shows little improvement over time and that it is a helpful tool in diagnosing the patient and in prescribing the appropriate treatment. However, she admitted that she did not review the film, only the report, and that an MRI merely takes a picture of the condition that exists at that point in time.

Dr. Faircloth was of the opinion that the protruding disc, more likely than not, resulted from this accident, but that it was difficult to say for certain since no prior testing had been done. Nevertheless, she testified that it was her opinion that the injuries from the December 2005 accident caused the protruding disc. Dr. Faircloth went on to indicate that White would need periodic care depending on her activity level.

Progressive introduced several photographs of the rear of White’s car following the accident, which showed little or no visible damage. White further testified that she drove away from the accident, went to lunch, and then returned to work.

Having reviewed the entire record, we cannot say that the trial court erred in finding that the December 2005 accident was the cause of White’s injuries, including the protruding disc that revealed itself on the MRI. Although we may have found differently had we been the trier of fact, based on the record before us, the trial court’s findings were reasonable and, therefore, cannot be disturbed on appeal. Accordingly, this assignment of error is without merit.

DAMAGES

The trial court awarded White $60,000 in general damages. The trial |7court’s findings are accorded great weight when reviewing a general damage award and should rarely be disturbed absent a showing of clear abuse of discretion. Andrus v. State Farm Mut. Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206. Thus, we must determine whether the trial court’s 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” before we may adjust the award. Id. at 1210.

Progressive argues that the evidence established that White sustained a six month injury as opposed to an injury lasting more than two years. Had the trial court concluded that this was a six month injury (or even a six month injury with only minor residual problems), the award would have clearly been abusive. That was, however, not the case. Rather, the trial court found that White was “still suffering” “from chronic and permanent” problems two years after the accident. As stated above, there was a reasonable basis for these findings.

In addition to the medical evidence, we have White’s testimony. White testified to her ongoing neck and back pain along with continuing periodic headaches. She testified that she liked to work out at the gym, but had to limit herself in order to prevent injury. She further stated that she could no longer go snow-skiing and that a boat ride following the accident caused severe back pain. She stated she regularly boated prior to the accident but no longer does after the one attempt. She also stated that the accident has limited her gardening activities. White further testified that she cannot lift heavier things.

Additionally, Shirley Nunnelly, White’s mother and the owner of the family restaurant where White works, testified that pri- or to the accident, White had [sno limitations at work, but that since the accident she is no longer able to lift items such as sacks of onions, canned goods, big cans, and cases of canned goods. She further testified that since the accident, White has been unable to maintain her garden or go to the gym like she used to. Nunnelly also said that White cannot wash her car. She further stated that White often complains of headaches. Nunnelly testified that these problems continued through the time of trial.

It was not unreasonable for the trial court to find that White suffered from a chronic injury lasting more than two years. Although we find this award is on the high side, we cannot say that the trial court abused its vast discretion in its general damage award. Accordingly, this assignment of error is without merit.

FRIVOLOUS APPEAL

White argues that she should be awarded damages for frivolous appeal.

La.Code Civ.P. art. 2164 provides that an appellate court may award damages for frivolous appeal. However, damages for frivolous appeal will not be awarded unless it appears that the appeal was taken solely for the purpose of delay, that serious legal questions are not raised, or that the attorney does not seriously believe in the position he advocates. Robinson v. Thornton, 96-1329 (La.App. 3 Cir. 10/29/97); 705 So.2d 745, writ denied, 97-2963 (La.2/6/98); 709 So.2d 739.

Cooks v. Rodenback, 97-1389, p. 9 (La.App. 3 Cir. 4/29/98), 711 So.2d 444, 449. Considering the facts before us, particularly the minor nature of the accident and the gaps in treatment, we find no basis for awarding damages for frivolous appeal.

CONCLUSION

The judgment of the trial court in favor of the plaintiff-appellee, Tanya White, is affirmed. All costs of this appeal are assessed against the defendant-appellant, Progressive Security Insurance Company.

AFFIRMED.